Updates and background for this project (Digest)

• Introduction
• Dealing with public perceptions
• Addressing public confidence

INTRODUCTION

5.1 In the previous chapter, the Commission recommended that juries should not be involved in the sentencing process to any greater extent than they are currently. A key reason for this recommendation is the belief that juror involvement in sentencing would not achieve the stated aim of boosting public confidence in the criminal justice system. Indeed, the drawbacks of the proposal are such that the opposite result could eventuate.

5.2 However, in rejecting the concept of juries having a greater role in sentencing, we do not dismiss the importance of public confidence in, and perceptions of, the criminal justice system. As noted in one submission, “[w]here justice is not being perceived to be done, there is a serious dysfunction in the system”.¹ This chapter makes recommendations on how the issue of public confidence can be more fully explored and addressed.

DEALING WITH PUBLIC PERCEPTIONS

5.3 In IP 27, the Commission discussed public perceptions about the criminal justice system, and the difficulty of ascertaining the true nature of those perceptions.² A commonly held view in many countries is that violent crime is spiralling out of control, that judges are out of touch with reality, and that sentences are far too lenient for the crimes being committed.³ Although this perception is not supported by statistics, it nevertheless remains a powerful tool, often acting as a catalyst for reform and influencing the decisions of policy makers.⁴ Research has looked at the reasons for this apparent disparity between statistics and perception, finding that:

• People significantly overestimate the incidence of violent crime, and underestimate the severity of current sentencing practices, and therefore think the courts’ response to be inadequate. People are also more likely to support more severe sentences if they feel victimised by the fear of crime.⁵ These findings have been duplicated in studies in Australia,⁶ New Zealand,⁷ and the United Kingdom.⁸
• Survey results more accurately reflect the type of question asked, the context in which it was asked, and the amount of information provided, rather than a definitive indication of public opinion.⁹
• Most people receive the majority of their information about the courts and sentencing through the mass media, whose reporting of such issues is, at best, disproportionate and superficial, and at worst, biased and inaccurate.¹⁰

5.5 By their very nature, the news media provide the public with information that is new, or out of the ordinary, and therefore worthy of comment. Since offenders convicted of violent crimes are newsworthy, and since sentencing is the most visible aspect of the trial process, it is not surprising that sentencing decisions are a fertile source for media reports. It is also not surprising that only the most salacious details of a select few cases are ever reported. The cases that are reported also tend to focus on the reaction of the victims or their families, who understandably would have preferred a harsher sentence, and pay little, if any, regard to sentencing principles or trends.

5.6 However, having said that, we do not propose that the answer to any real or perceived lack of public confidence in the sentencing process is to place the blame on the media. Even if, as some submissions suggest, public opinion about sentencing is not at levels as low as those depicted in the tabloid press, perception has a way of becoming reality.¹² We therefore need to find a way of addressing the problem.

Studies on public perceptions of sentencing

5.7 Studies conducted in Canada have shown that people are much more inclined to consider sentences to be appropriate, and more open to alternatives to imprisonment, when they are made fully aware of the facts of particular cases. Those studies showed that those who read only media accounts were much more inclined to feel that the sentence imposed was too lenient, particularly where the media had been critical of the judge. However, people who had access to court documents relating to the same case, which set out the full facts of both sides, were much more content with the decision of the trial judge. In fact, a number of people felt that the sentence was too harsh.¹³ These same results have been found in Australia,¹⁴ most recently by the Victorian Sentencing Advisory Council,¹⁵ and also in the United Kingdom,¹⁶ and the United States.¹⁷

ADDRESSING PUBLIC CONFIDENCE

5.8 Based on these studies, it seems that a two-pronged approach is needed to address the issue of public confidence in the criminal justice system, if it is to be addressed at all. The first is the need for more research into the true nature of public sentiment and opinions about sentencing decisions in NSW. The second is the need to recognise that community education about current sentencing practices and procedures is the key to improving public confidence.

Need for continued research

5.9 The most effective way to address the issue of public confidence in the criminal justice system in NSW is by relying on qualitative local data through which the community sentiment can be gauged, and then to address these concerns by providing relevant information to the public. This work could be done through existing organisations such as the Sentencing Council, the Bureau of Crime Statistics and Research and the Judicial Commission.

5.10 A recent study in Victoria, carried out by the Sentencing Advisory Council, highlighted the need for such information. That study, entitled Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing,¹⁸ examined the nature of public opinion about sentencing, including how that opinion can and should be measured. A significant finding of that study was that there is a substantial gap in knowledge about public opinion on sentencing in Victoria, with more detailed and up to date information needed, based on sound and valid methodologies.¹⁹ The researchers made the following observation:

There are many, many issues about which we have little or no evidence; while this vacuum exists there is the danger that policy will be created based on the assumption of a punitive public. But as a large body of research now shows, this assumption is at best over-stated and at worst simply wrong.²⁰

Community education strategies

5.12 The Commission considers that educating the public on how sentences are currently determined could help to bridge the gap in the public consciousness between loosely held perception and informed judgment. Several submissions expressed the view that there is a need to address the public’s lack of knowledge about sentencing trends and issues, the circumstances of highly contentious cases, and the factors that judges must consider when determining a sentence, since this is likely to improve public confidence.²¹ Greater public education regarding the complexity of sentencing makes it more likely that, even without jury involvement, public confidence in sentencing will be retained.²²

5.13 It was also noted in submissions that the means of disseminating information to the public have never before been easier or more affordable, for example, via the internet and audio visual tools.²³ Some of the avenues through which the public may be informed include:

• the expanded functions of the Sentencing Council of NSW;
• the release by the courts of summaries of sentencing judgments in more easily understood form;
• the production of more plain English publications explaining how sentencing works;
• public forums, coinciding with events such as Law Week; and
• cooperation between the media and criminal justice officials in disseminating more accurate and balanced information about sentencing.

5.14 As discussed in Chapter 2, the Sentencing Council of NSW was established in 2003 to provide independent advice to the Government on sentencing policy and practice.²⁴ In November 2005, the NSW Sentencing Council submitted a report to the former Attorney General, the Hon Bob Debus MLC, outlining the Council’s views on its statutory powers under Part 8B of the Crimes (Sentencing Procedure) Act 1999 (NSW). That report recommended that the Sentencing Council’s statutory functions should be broadened to include:

• advising the Attorney General on sentencing matters generally and of its own motion;
• conducting research and disseminating information to interested persons;
• gauging public opinion on sentencing matters; and
• fulfilling an educative role within the community. ²⁵

5.15 In late 2006, legislative amendments were made to expand the Sentencing Council’s membership and functions.²⁷ The Council’s membership has increased by three in order to make it more representative,²⁸ and provision has been made specifically for the Council to educate the public about sentencing matters.²⁹

5.16 A number of submissions suggest that the NSW Sentencing Council could mirror the work of the Victorian Sentencing Advisory Council in using public consultation, polling, community outreach and education programs to raise public awareness about sentencing, and accordingly, lift public confidence in the current sentencing processes.³⁰ One such community education program currently being run by the Victorian Sentencing Advisory Council is a sentencing seminar called “You be the Judge”. The Council’s website advises that this seminar provides information to the Victorian public on sentencing options and principles, and involves the audience in a mock sentencing exercise. This seminar has also been adapted into the Legal Studies curriculum in Victorian High Schools.³¹

5.17 The Commission is of the view that the Sentencing Council should have a pivotal role in investigating and in improving community understanding of sentencing matters in NSW. The recent expansion of the Sentencing Council’s powers is a positive step towards achieving this goal. Those powers would be enhanced if the Sentencing Council were able to publish monographs and guides to sentencing of its own motion, as well as the results of its researches. We note in this regard that the State Government has given support for the Sentencing Council to undertake research into community views on sentencing to ensure that they are better reflected in sentencing law and practice.³²

Clearly articulated reasons for sentencing

5.18 We believe that one of the most effective ways for improving community understanding of sentencing would be to encourage judges to provide more clearly articulated reasons for the sentences they hand down. It is essential, and will continue to be essential, for judges in this country to provide reasons for the sentences they hand down. To fail to do so would be to guarantee a successful appeal.

5.19 The Office of the DPP considered that judges or court staff should release plain English explanations of sentencing decisions.³³ Providing clear and easily digestible rationales for sentencing will assist in achieving the twin aims of boosting public education and confidence regarding aspects of sentencing, since it would shed light on the reasons for any apparent leniency.

5.20 A handful of summary sentencing judgments have been issued by the NSW Supreme Court in recent years, mainly in relation to more high profile or contentious cases.³⁴ However, it is not general practice. The Commission is of the view that the more widespread release of sentencing summaries, both at the time of the initial sentence and on appeal, would be of assistance in providing the community with information about how and why judges make sentencing determinations. We recognise that this initiative would have time and resource implications for the courts, and accept that it would not be necessary for a large proportion of run of the mill prosecutions where the issues are simple and the sentence uncontroversial. The position is otherwise for the more complex cases and for those that are likely to attract the interest of the public. In this respect, the appellate courts are well placed to explain the sentencing principles that underlie particular decisions.

Plain English publications

5.21 The research report completed by the Victorian Sentencing Advisory Council noted that people were of view that information about sentencing was either unavailable or difficult to find.³⁵ This finding points to a need for more information about sentencing practices, presented in an easily accessible form.

5.22 A number of initiatives have already been undertaken. For example, the Judicial Conference of Australia has published a booklet entitled Judge for Yourself, which offers a guide to sentencing in Australia.³⁶ Having a national focus, the publication provides information on the court system, the public perceptions of crime, the laws that underpin sentencing decisions, the purposes of sentencing and the factors that must be taken into account. The booklet also contains examples of sentencing decisions.

5.23 In NSW, the recently released Sentencing Information Package contains similar information.³⁷ Its focus is to assist victims of crime in understanding the sentencing process. The pamphlet sets out the procedure followed at sentencing hearings, the aggravating and mitigating factors that a judge must take into account, the sentencing options that are available, and the process for appealing against a sentencing decision.

5.24 We are of the view that more publications of this nature are required. A general publication could be produced aimed at the community as a whole, as well as other information more specifically targeted to interest groups, including Legal Studies students. The information should be available in various formats, including hard copy, online, CD-Rom and audio visual. While a number of agencies could collaborate in producing sentencing information, it falls most logically within the functions of the Sentencing Council. Once again, we recognise that this initiative would have resource implications, and may require the grant of additional power to the Council, whose functions are determined by legislation.³⁸

Working with the media

5.25 Much of the current public perception is fed through the media, whose coverage can be incomplete and misleading.³⁹ More balanced and responsible media reporting would assist public confidence.⁴⁰ This could be encouraged and facilitated by the implementation of the other measures aimed at boosting community education recommended in this chapter.

Recommendation 2

The Commission recommends that further empirical studies should be done in NSW on public perceptions of the sentencing process.

Recommendation 3

The Commission recommends that the issue of public confidence in sentencing decisions should be addressed by increasing public education about sentencing laws and practice, including the factors and options that a judge must consider when determining the type and length of a sentence. Public education could be facilitated through:

- campaigns developed under the newly expanded functions of the Sentencing Council;

- greater use by the courts of plain English summaries of the reasons for sentencing decisions;

- the production and widespread distribution of easy to understand information concerning sentencing available in various formats; and

- improved cooperation between the media and criminal justice officials responsible for disseminating public information about sentencing matters.

1. NSW Council for Civil Liberties, Submission, 1 September 2006.

2. See IP 27, [3.9]-[3.21].

3. For a detailed analysis of the complexity of public opinion and its impact on sentencing law and policy in Australia and overseas, see Julian V Roberts, Loretta J Stalans, David Indermaur and Mike Hough, Penal Populism and Public Opinion – Lessons from Five Countries (Oxford University Press, New York, 2003).

4. David Indermaur, “Public Perceptions of Sentencing in Perth, Western Australia” (1987) 20 Australian and New Zealand Journal of Criminology 163, 163.

5. Mike Hough, Helen Lewis and Nigel Walker, “Factors associated with ‘punitiveness’ in England and Wales” in Nigel Walker and Mike Hough, Public Attitudes to Sentencing: Surveys from Five Countries (Gower Publishing Co Ltd, Great Britain, 1988) 210-211.

6. Indermaur (1987) 175-177.

7. Judy Paulin, Wendy Searle and Trish Knaggs, Attitudes to Crime and Punishment: A New Zealand Study (Ministry of Justice, Wellington, New Zealand, December 2003) accessed at «www.justice.govt.nz/pubs/reports/2003/publicattitudes».

8. Nigel Walker, Mike Hough and Helen Lewis, “Tolerance of Leniency and Severity in England and Wales” in Walker and Hough, 185-186.

9. See also Indermaur (1987) 163.

10. Anthony N Doob and Julian V Roberts, “Public punitiveness and public knowledge of the facts: some Canadian surveys” in Walker and Hough, 113-133; Julian V Roberts and Anthony N Doob, “Sentencing and Public Opinion: Taking False Shadows for True Substances” (1999) 27(3) Osgoode Hall Law Journal 491, 499-501. See also Indermaur (1987) 164. A study in the United Kingdom revealed that 91% of people surveyed gained most of their information about crime from the print and electronic media. That study also found that readers of the tabloid press were more likely to hold punitive views regarding sentencing than other readers: Mike Hough, Helen Lewis and Nigel Walker, “Factors associated with ‘punitiveness’ in England and Wales” in Walker and Hough, 212-213.

11. See Justice James Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876, 880.

12. NSW Bar Association, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006; The Hon Gordon J Samuels, Submission, 13 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006.

13. Doob and Roberts in Walker and Hough, 124-133; Roberts and Doob, 501.

14. Indermaur (1987); John Walker, Mark Collins and Paul Wilson, “How the public sees sentencing: an Australian survey” Trends and Issues in Crime and Criminal Justice (Australian Institute of Criminology, No 4, April 1987).

15. Victoria, Sentencing Advisory Council, Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing, Research Paper (July 2006).

16. Andrew Ashworth and Mike Hough, “Sentencing and the Climate of Opinion” (1996) Criminal Law Review 776. See also Michael Zander and Paul Henderson, The Royal Commission on Criminal Justice: The Crown Court Study, Research Study No 19 (1993).

17. See Roberts, Stalans, Indermaur and Hough. See also Michael J Hindelang, Public Opinion Regarding Crime: Criminal Justice and Related Topics, US Department of Justice, Law Enforcement Assistance Administration (1975).

18. Victoria, Sentencing Advisory Council, Research Paper.

19. Victoria, Sentencing Advisory Council, Research Paper, 39.

20. Victoria, Sentencing Advisory Council, Research Paper, 40.

21. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; The Hon Gordon J Samuels, Submission, 13 August 2006.

22. NSW Bar Association, Submission, 1 September 2006; Judge John Goldring, Submission, 16 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006; Andrew Vincent, La Trobe University, Submission, 6 September 2006; Law Society of NSW, Submission, 8 September 2006.

23. NSW Council for Civil Liberties, Submission, 1 September 2006.

24. See [2.37]-[2.38] of this Report.

25. See NSW Sentencing Council, Report on Sentencing Trends and Practices 2005-2006, 10.

26. See Sentencing Act 1991 (Vic) s 108C(1).

27. See Crimes and Courts Legislation Act 2006 (NSW), which inserted s 100I(f)-(h) and s 100J(1)(e) in the Crimes (Sentencing Procedure) Act 1999 (NSW).

28. In addition to the ten existing members, the Sentencing Council is now to be constituted by a further three members: one with expertise or experience in corrective services, one with expertise or experience in juvenile justice, and a representative of the Attorney General’s Department: see Crimes (Sentencing Procedure) Act 1999 (NSW) s 100I(f)-(h).

29. See Crimes (Sentencing Procedure) Act 1999 (NSW) s 100J(1)(e).

30. NSW Bar Association, Submission, 1 September 2006; Andrew Vincent, La Trobe University, Submission, 6 September 2006.

31. See «www.sentencingcouncil.vic.gov.au».

32. This formed part of the Government’s election policy in the lead up to the 2007 State election.

33. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

34. For example, summaries were released following the sentencing of Ray Williams and Rodney Adler for their roles in the collapse of HIH Insurance Ltd.

35. Victoria, Sentencing Advisory Council, Research Paper at 37.

36. The booklet is a collaborative effort made possible by grants from the Victorian Law Foundation, the Victorian Sentencing Advisory Council, the Law Foundation of South Australia and the Law Society Public Purposes Trust of South Australia. The project also received input from judicial officers of the Federal Court of Australia, the Supreme Courts of NSW, South Australia and Victoria, NSW Local Courts and the Judicial Commission of NSW. It can be printed or downloaded at «www.jca.asn.au/content/attachments/Final_JCA_booklet1.pdf».

37. The Sentencing Information Package is jointly produced by the Criminal Law Review Division and the Victims of Crime Bureau, with input from the NSW Sentencing Council. See «www.lawlink.nsw.gov.au/lawlink/clrd/ll_clrd.nsf/pages/CLRD_sentencing_info».

38. See para [5.14]-[5.15] for a discussion of the functions of the Sentencing Council.

39. NSW Council for Civil Liberties, Submission, 1 September 2006; Judge John Goldring, Submission, 16 August 2006.

40. Judge John Goldring, Submission, 16 August 2006.