THE BACKGROUND TO THE COMMISSION'S REFERENCE

1.1 In January 1994 the then Attorney General, the Hon John Hannaford MLC, appointed Dr Roger Brown to undertake a review of sentencing laws and procedures in New South Wales with a view to making recommendations for reform. That review produced an issues paper in June 1994.¹ One recommendation in that paper was that the Commission should be asked to undertake a detailed review of all offences punishable by imprisonment with a view to modernising and rendering consistent the levels of penalty applicable to those offences.²

1.2 Pursuant to this recommendation, the Commission received the following reference from the then Attorney General on 20 October 1994:

The Commission is to review the penalties for offences punishable by imprisonment in New South Wales and to develop consistent and rational criteria for maximum penalties.

In undertaking this review the Commission is to consider:

• whether it is appropriate to classify offences in terms of relative seriousness; and
• the desirability of differentiating between offences of violence and other offences.

Resource constraints meant that the Commission was only able to schedule the commencement of work on this reference for July 1995.

1.3 Following the general election of March 1995, there was a change of government in New South Wales. The new Attorney General, the Hon Jeff Shaw QC, required the Commission, by reference dated 12 April 1995,³ to report generally on the laws relating to sentencing in New South Wales, with particular reference to:

• the formulation of principles and guidelines for sentencing;
• the rationalisation and consolidation of current sentencing provisions;
• the adequacy and use of existing non-custodial sentencing options with particular reference to home detention and periodic detention;
• the adequacy of existing procedures for the release of prisoners by the Offenders Review Board and the Serious Offenders Review Council and the benefits that might accrue from the review of the decisions of the Offenders Review Board and the Serious Offenders Review Council by judicial officers; and
• any related matter.

1.4 These terms of reference are sufficiently broad to encompass the reference from the former Attorney General in 1994. Indeed, the second matter the Commission is directed to consider deals with the same subject matter as the 1994 reference. The Commission has proceeded on the basis that the 1994 reference is incorporated in its present reference.

1.5 The Attorney General has requested the Commission to have regard to the proposals in relation to sentencing contained in the Australian Labor Party policy documents formulated in Opposition. Accordingly, the Commission has had regard to the following policy documents:⁴

• Labor’s Plan to Fight Crime, 1995;⁵
• Labor’s Law Reform Policy, March 1995; and
• Labor’s Corrections Policy 1995.

1.6 Much of Labor’s Plan to Fight Crime is not directly relevant to the Commission’s Sentencing Reference.⁶ However, two major sections of the document are relevant. The first is headed “Sentencing - Making the Punishment fit the Crime”. The stated concern of this section is to ensure that offenders receive “appropriate” punishment, which includes:

• mandatory life sentences following conviction for dealing in large commercial quantities of hard drugs;
• life imprisonment following conviction for a new offence of “horrific crime” (that is multiple murder, contract killing and murder or attempted murder in conjunction with violent sexual assault); and
• increased sentences for selling drugs near schools (an automatic increase of five years imprisonment); for burglaries in which the safety of occupants at home are put at risk (up to five years extra imprisonment); and for purchasing alcohol for children.

The punishments proposed are seen as necessary to satisfy the “community’s desire for justice”.⁷

1.7 The second relevant section is headed “Victims’ Rights”. The underlying assumption is that “victims of crime deserve better”.⁸ To this end, there should be:

• a Charter of Victim’s Rights, whose provisions would bind government agencies, and which would include the right of victims to be notified of court hearings, sentencing, avenues of appeal and victims’ compensation;
• a Victims of Crime Bureau, whose task would be to refer victims to support services; to co-ordinate court services for victims; to assist in preparation for compensation hearings, and of victim impact statements and submissions about an offender’s pending release; and, to inform victims of the offender’s location in the criminal justice system;
• a Victim Support Officer in each police patrol unit to assist victims;
• court procedures which minimise the trauma suffered by victims during trial; and
• effective and swift restitution (from the offender) and compensation to the victims of crime, including giving victims the option of claiming compensation either under the victims’ compensation legislation or as part of the sentencing process. ⁹

Many of these policies are intended to reflect the importance of the counselling and rehabilitation of victims of crime, and it is to this that Labor’s Law Reform Policy directs emphasis as far as resources are concerned.¹⁰

1.8 A number of sentencing proposals are found in Labor’s Corrections Policy and Labor’s Law Reform Policy. Apart from matters specifically mentioned in the Commission’s terms of reference, they envisage the introduction of measures to ensure:

• the use of imprisonment as a sentence of last resort for non-serious offenders;¹¹
• a stronger and more meaningful periodic detention regime;¹²
• the encouragement of the use of non-custodial options, steps being taken to ensure their greater enforceability and utility;¹³
• the elimination of imprisonment for fine defaulters, accompanied by the development of procedures designed to ensure the greater enforceability of fines in practice;¹⁴
• the strengthening of judicial education with a view to ensuring, amongst other things, the elimination of inconsistencies in sentencing.¹⁵

1.9 A matter relevant to one of the Commission’s terms of reference is the policy that sitting judges should be responsible for sentencing and releasing prisoners. A judge or magistrate of the court which sentenced the offender would authorise release to parole or a community-based program when satisfied that the offender has served the sentence in the manner intended by the court. For non-serious offenders, a judge would sign release papers only after considering a report from the Offenders Review Board. Release of serious offenders would require a judge to conduct a court hearing to consider submissions from the Offenders Review Board, the Serious Offenders Review Council and from victims.¹⁶ The stated purpose of these policies is to achieve “a fairer, more secure system which ensures that prisoners serve their sentences as the court intended” and to “ensure all prisoners serve the sentence justice demands”.¹⁷

COMMENT ON THE TERMS OF REFERENCE

1.10 One of the Commission’s terms of reference requires a consideration of “the adequacy of existing procedures for the release of prisoners by ... the Serious Offenders Review Council and the benefits that might accrue from the review of the decisions of ... the Serious Offenders Review Council by judicial officers”. The main function of the Serious Offenders Review Council (“SORC”) is the management of serious offenders while in custody.¹⁸ SORC has no responsibility for the release of prisoners from custody;¹⁹ its role in the parole decision is only indirect, namely, to provide reports to the Offenders Review Board.²⁰ The management functions of SORC are part of prison administration and are not related to this reference. Its reporting functions are not in themselves readily amenable to judicial review except as part of the parole decision of the Offenders Review Board. This is considered in Chapter 7.²¹

THE SCOPE OF THE REFERENCE

A comprehensive review of sentencing law

1.11 The Commission’s terms of reference are wide. Although we are directed to focus our attention on four specific matters, the reference potentially encompasses a review of the whole of the law relating to sentencing. Two such major reviews have occurred in Australia in the last two decades. First, the Australian Law Reform Commission began a review of Commonwealth and Australian Capital Territory law relating to the imposition of punishment for offences in 1978. An interim report was published in 1980²² and a final report in 1988.²³ The result was the addition of a new part to the Crimes Act 1914 (Cth) dealing with the sentencing, imprisonment and release of federal offenders.²⁴ Secondly, a sentencing committee was established in Victoria in 1985 to review the laws and practices of sentencing in that State and to make recommendations for reform. That committee reported in 1988,²⁵ its work eventually resulting in the Sentencing Act 1991 (Vic). In addition to these Australian inquiries, there have been a number of major reviews overseas.²⁶

1.12 The Commission has agreed with the Attorney General that this reference will receive priority among our current projects.²⁷ A comprehensive review of the laws of sentencing within a one-year, or even a two-year, period has the potential to consume the entire resources of the Commission for that period. Therefore, the Commission has decided to break this reference up into at least three phases and to report separately on each phase. The first phase of our inquiry, to which this Discussion Paper is directed, will concentrate on the general principles of sentencing law in New South Wales. It is our intention to report to the Attorney General on this part of the reference in the second half of 1996.

Special groups of offenders

1.13 The second phase of our inquiry will be directed to an examination of the particular problems which arise in sentencing groups of offenders who require special consideration. A principal focus of the second phase will be the sentencing of Aboriginal offenders, young offenders and offenders with an intellectual disability. Other groups which deserve special consideration include corporate offenders and female offenders. The special considerations which apply to the sentencing of offenders in these and other groups require discrete treatment, both in terms of research and community consultation, to ensure that important issues to which they give rise are not lost in a general review of the law of sentencing.

Aboriginal offenders

1.14 As far as Aboriginal offenders are concerned, research and community consultation will need to focus, amongst other matters, on the following considerations:

• The existence of any express or implicit discrimination in the sentencing of Aboriginal offenders.²⁸ An example may be the increase rate of over 100% in the Aboriginal population of New South Wales gaols since the introduction of the Sentencing Act 1989 (NSW) (the “truth in sentencing” legislation),²⁹ a rate much higher than that for non-Aboriginal offenders (which is just below 40%). One reason for this may be that the majority of Aboriginal offenders are sentenced to short periods of imprisonment and that the unavailability of parole for sentences of six months or less³⁰ as well as the abolition of remissions brought about by the truth in sentencing legislation, impacts disproportionately on those serving short sentences for minor crimes.³¹
• The relevance of socio-economic factors (including alcohol abuse) to sentencing.³² The issue here is the extent to which the courts ought to take into account, as a mitigating factor in sentencing, the fact that the socio-economic conditions in which many Aboriginal people live are appalling in comparison to those in which the majority of the population lives.
• The relevance of Aboriginal law to the imposition of punishment.³³ The issues here centre on the extent to which the courts ought to apply the sanctions of Aboriginal law to Aboriginal offenders, or, perhaps, suspend a sentence to enable the Aboriginal offender to undergo traditional punishment.³⁴ Another issue is whether or not the courts should increase or decrease a sentence because of the perception of the seriousness of the crime in the Aboriginal community from which the offender comes.³⁵
• The impact of sentences on Aboriginal offenders. Aboriginal deaths in custody have been the subject of official inquiry and much debate.³⁶ They raise the question of the extent to which the courts ought always to consider, as a relevant factor of hardship, the potential impact of a custodial sentence on an Aboriginal offender.³⁷ This, in turn, raises the question of the extent to which special use should be made, in the treatment of Aboriginal offenders, of non-custodial options (whether available under Aboriginal law or not).

Young offenders

1.15 Sentencing principles differ in respect of persons under the age of 18.³⁸ More generally, such principles receive distinct emphasis in the case of young offenders.³⁹ Age reduces responsibility, less emphasis is given to general deterrence and special consideration is given to the prospects of rehabilitation.⁴⁰ A number of practical considerations require discrete investigation:⁴¹

• The classification of offences. The issue here is whether young offenders should be treated differently according to the seriousness of the offence.⁴² For example, the general effect of s 17 of the Children (Criminal Proceedings) Act 1987 (NSW) is that a child offender who is charged with a “serious indictable offence” is treated no differently from an adult for sentencing purposes.
• The determination of a sanction hierarchy.⁴³ The objectives pursued in the sentencing of young offenders generally create a strong presumption against the use of custodial punishments (whether committal to an adult prison or to a children’s detention centre). To achieve this end, and to make clear the circumstances in which non-custodial options should be used, it may prove useful to create a hierarchy of sanctions to which the court is bound to have regard in sentencing young offenders.⁴⁴

Offenders with an intellectual disability

1.16 At present, intellectual disability is a relevant factor in sentencing to the extent to which it:

• operates in mitigation of sentence, either generally⁴⁵ or because the impact of imprisonment is likely to be more burdensome on an offender with an intellectual disability than in the case of other offenders;⁴⁶
• constitutes a “special circumstance” for the purpose of determining the ratio of the minimum to the additional term of imprisonment under s 5(2) of the Sentencing Act 1989 (NSW).⁴⁷

As with young offenders, the purposes of punishment receive distinct emphasis, generally with less weight on retribution and deterrence.⁴⁸ As with Aboriginal offenders, special consideration needs to be given to non-custodial (or quasi-custodial) sentencing options.⁴⁹

1.17 Some of the issues concerning the sentencing of persons with an intellectual disability have been, and are being, addressed in the Commission’s reference on People with an Intellectual Disability and the Criminal Justice System.⁵⁰ That reference is expected to report in the first half of 1996.⁵¹ The Commission will have the advantage of drawing, and where necessary building, on the report and conclusions of that reference in the second phase of this sentencing reference.

Statutory maximum penalties

1.18 The third phase of our inquiry will be directed to an examination, and rationalisation, of the maximum penalties which legislation makes applicable to criminal offences in New South Wales. These maxima have been imposed by the legislature from time to time without express consideration of the relative seriousness of the offences to which they apply. Because prescribed statutory maxima are the initial factor taken into account by the courts in the determination of the quantum of sentence,⁵² they potentially contribute to sentence disparity to the extent to which they do not, comparatively, reflect the objective seriousness of the offence.⁵³

1.19 The Commission will attempt to provide an appropriate framework for the categorisation of offences for penalty purposes. A number of factors are potentially relevant to the development of such a framework.⁵⁴ They include:

• an analysis of the values sought to be protected by criminal prohibitions;
• current judicial sentencing practice;
• comparisons to related jurisdictions;
• professional opinion;
• public opinion; and
• common sense judgment.

Many of these factors are potentially susceptible to empirical analysis. The comparative weight to be accorded to any one of them is, obviously, an important part of any attempt to develop a scale of seriousness. Their analysis should reveal, amongst other matters, whether there is a need for the creation of a category of “horrific crime” for sentencing purposes.⁵⁵

1.20 Some inquiries have already attempted the task of categorising offences in terms of seriousness.⁵⁶ A Victorian Task Force⁵⁷ proposed a ranking of offences whose framework appears in the Sentencing Act 1991.⁵⁸ The Act is not, however, an unqualified success in this respect. First, the reclassification of statutory maxima in terms of the Act’s framework remains to be carried out for all legislative offences with the exception of those in the Crimes Act 1958 (Vic).⁵⁹ Secondly, since the passage of the Sentencing Act, the Victorian Parliament has passed legislation which sets maximum penalties without reference to the framework of the Act and which creates gross disparities in terms of that framework.⁶⁰

THE COURSE OF THE REFERENCE TO DATE

1.21 The Commission began work on this reference in July 1995. The primary focus of our work to date has been to identify, primarily through research, areas in current sentencing law which appear to be in need of reform and, where possible, to formulate tentative proposals for that reform.

1.22 In doing so, we have had the benefit of the views of many persons and organisations with experience in sentencing. First, we have considered the submissions which were made to the Attorney General’s Sentencing Review in 1994. Secondly, we invited comments on our terms of reference from interested organisations and individuals. In all, we received 25 submissions. Thirdly, we have had constructive consultations with relevant government and other bodies in New South Wales, including the Judicial Commission of New South Wales, the Department of Corrective Services, the Probation Service, the Serious Offenders Review Council and the Offenders Review Board. Fourthly, we have met with victims’ groups and, on 4 October 1995, we hosted a Victims Seminar at Parliament House designed to promote dialogue on sentencing between judges, magistrates and victims. The seminar was addressed by members of victims’ support groups, by the Premier of NSW, the Attorney General and the Director of Public Prosecutions.

THE PURPOSE OF THIS DISCUSSION PAPER

1.23 The Commission is committed to community involvement in all its law reform projects. Community involvement is especially important in contentious areas of the law such as sentencing. The purpose of this Discussion Paper is to provide all interested members of the community with the preliminary results of our research, in order to lay the foundation for informed discussion and debate in the community on reform of sentencing law generally, and, in particular, on the tentative proposals for reform which we put forward in this paper.

1.24 Following the publication of this Discussion Paper, the Commission will begin a period of extensive community consultation. Part of the consultation process is to encourage comments and suggestions from interested groups and members of the public on the issues and proposals which are raised in this Discussion Paper. To assist in the preparation of such responses, we have summarised at the end of each chapter the questions which have been discussed in that chapter and on which we particularly seek responses from the community.

1.25 The Commission stresses that the views expressed in this Discussion Paper, and the proposals which we put forward, are not our final recommendations. It is true that we have reached tentative agreement on reform in some areas of sentencing law, especially where (as in the case of victims) we have already had the benefit of considerable community consultation. Our tentative agreement is, however, subject to revision in the light of further research and consultation, including the submissions which we receive in response to this paper. Where we have reached a tentative agreement on reform of the law and that agreement necessitates a change in the present law, we have expressed our preliminary view in the form of a proposal for reform. A list of such proposals appears at p xvii. The purpose of doing this is merely to indicate the direction in which our research is taking us. A Report containing our final recommendations to the Attorney General will only be prepared after we have completed our research and consultation process.

OUTLINE OF THIS DISCUSSION PAPER

1.26 This Discussion Paper is divided into six parts. Part 1, which comprises Chapters 1-3, constitutes an introduction to the reference and to the general law of sentencing in New South Wales.

• Chapter 1 describes the reference and the manner in which the Commission intends to manage it.
• Chapter 2 deals with two overriding problems of sentencing law in New South Wales, currently an amalgam of common law and a number of statutes. The first is the question of consolidation of the law. The second is the extent to which the law needs rationalisation to address issues of alleged sentence disparity and leniency.
• Chapter 3 considers the underlying purposes and principles of sentencing law.

1.27 Part 2, which comprises Chapters 4-6, deals with the law relating to imprisonment as a sentencing option.

• Chapter 4 describes the structure of imprisonment law in New South Wales, including the relationship between minimum terms of imprisonment (which must be served) and additional terms (during which the offender becomes eligible for release on parole); how multiple terms of imprisonment are imposed and served; life sentences; and how the law deals with dangerous and repeat offenders.
• Chapter 5 discusses how the courts take into account the various factors operating in any case to determine the appropriate sentence. These factors include those relevant to the nature of the offence and of the offender; the offender’s response to the charge; the effect of the offence and its sanction; and the relevance of the sentence imposed on a co-offender.
• Chapter 6 investigates various methods which have been developed, or suggested, to guide the discretion of the judge in arriving at the appropriate sentence.

1.28 Part 3 of the paper deals with release from custody. It consists of Chapter 7 which deals with the law relating to parole and the operation of the Offenders Review Board.

1.29 Part 4 of the paper, which comprises Chapter 8, deals with periodic detention, a punishment which is only partly custodial and to which parole is inapplicable.

1.30 Part 5, which comprises Chapters 9 and 10, deals with non-custodial punishments.

• Chapter 9 deals with community-based punishments. These include intensive supervision orders, community service orders, probation, suspended and deferred sentences, and conferencing.
• Chapter 10 considers monetary penalties, namely fines and two orders ancillary to sentencing, namely reparation and confiscation orders.

1.31 Part 6 of the paper, which comprises Chapter 11, deals with the role of victims in sentencing. It considers the general needs of victims in the criminal justice system, victim impact statements and the role which victims ought to have at parole hearings.

1. New South Wales, Attorney General’s Department, Sentencing Review 1994 (Sydney, June 1994) (hereafter Attorney General’s Sentencing Review).

2. Attorney General’s Sentencing Review at 56.

3. The terms of reference are formally set out at p xiii.

4. The three listed documents are consolidated with other relevant policy statements and material in ALP Law and Order Policy Documents.

5. Labor’s Plan to Fight Crime, 1995: Policing Streets, Preventing Crime, Punishing Criminals, Protecting Victims (hereafter Labor’s Plan to Fight Crime).

6. But some parts are relevant. Thus, the policing section of the Policy envisages the expansion of a Minor Offenders Punishment Scheme which deals with community youth conferences where the offender and a willing victim are brought together before a police or court officer with the aim of determining punishment and restitution, the offender taking responsibility for the crime (Labor’s Plan to Fight Crime at 2). The crime prevention section of the Policy envisages a similar scheme applying in the school context to violent or disruptive pupils (Labor’s Plan to Fight Crime at 4) and also envisages that offenders (particularly graffitists) serving Community Service Orders will be required to serve their order by removing graffiti. Again, alcohol-affected offenders are to be directed by the courts into rehabilitation programs to the cost of which they will be required to contribute on a means-tested basis: Labor’s Plan to Fight Crime at 5.

7. Labor’s Plan to Fight Crime at 5-6.

8. Labor’s Plan to Fight Crime at 7.

9. Labor’s Plan to Fight Crime at 7-9. See also Labor’s Law Reform Policy at 11-12.

10. Labor’s Law Reform Policy at 12.

11. Labor’s Corrections Policy at 4.

12. Labor’s Corrections Policy at 19-20.

13. Labor’s Corrections Policy at 4-5.

14. Labor’s Corrections Policy at 7; Labor’s Law Reform Policy at 19.

15. Labor’s Law Reform Policy at 20.

16. Labor’s Corrections Policy at 21-22.

17. Labor’s Corrections Policy at 21.

18. See paras 7.27-7.31.

19. SORC does, however, have responsibility for the pre-release programs of certain prisoners: see para 7.27.

20. SORC may also report to the Supreme Court on s 13A applications: see paras 4.83-4.86.

21. See paras 7.66-7.74.

22. Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980).

23. Australian Law Reform Commission, Sentencing (ALRC 44, 1988). See also Australian Law Reform, The Commonwealth Prisoners Act (ALRC 43, 1988).

24. Crimes Act 1914 (Cth) Part 1B, inserted by the Crimes Legislation Amendment Act (No 2) 1990 (Cth). See also Crimes Act 1900 (ACT) Pt XII Div 1, inserted by the Crimes (Amendment) Act (No 2) 1993 (ACT).

25. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) 3 Volumes.

26. See Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, 1987); Ireland, Law Reform Commission, Consultation Paper on Sentencing (Dublin, March 1993).

27. See New South Wales Law Reform Commission, Annual Report 1995 at 12. For a list of the Commission’s current projects, see New South Wales Law Reform Commission, Digest 1995 at 38-44.

28. See Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Volume 1 at paras 533-534.

29. See New South Wales, Aboriginal Justice Advisory Committee, Report 1993-1995 (Attorney General’s Department, Sydney, December 1995) at 48.

30. Sentencing Act 1989 (NSW) s 7.

31. See M Sharp, “‘Truth’ Law Doubles Black Jail Numbers” Sydney Morning Herald (28 September 1995) at 3.

32. See especially R v Fernando (1992) 76 A Crim R 58 at 62-63 per Wood J. See also paras 5.50-5.53; H McRae, G Nettheim and L Beacroft, Aboriginal Legal Issues: Commentary and Materials (Law Book Co, 1991) at 272-273.

33. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Volume 1 at paras 504-522.

34. This gives rise to many complex questions concerning Aboriginal law and its relationship with the general law: see G Zdenkowski, “Customary Punishment and Pragmatism: Some Unresolved Dilemmas” (1994) Aboriginal Law Bulletin 26.

35. See, generally, Recommendation 20 in The Recognition of Aboriginal Customary Laws (ALRC 31, 1986).

36. See especially Australia, Royal Commission into Aboriginal Deaths in Custody, National Report: Overview and Recommendations (Canberra, AGPS, 1991). For a recent expression of concern particularly in relation to young Aboriginal offenders, see M Woodrow, “Introduction” in Aboriginal and Torres Strait Islanders Social Justice Commissioner, Third Report 1995 (AGPS, Canberra, 1995).

37. On hardship generally see paras 5.111-5.113.

38. The Children (Criminal Proceedings) Act 1987 (NSW) applies special principles, in the case of children, to: the exercise of criminal jurisdiction (s 6); penalties generally (Part 2 Division 4); and penalties in the Children’s Court (Part 3 Division 4). See R v P (1991) 53 A Crim R 112 at 114 (NSW CCA). See generally A Freiberg, R Fox and M Hogan, Sentencing Young Offenders (ALRC, Sentencing Research Paper 11, 1988).

39. See R v P at 116. Compare R v Nichols (1991) 57 A Crim R 391 (NSW CCA); R v Hawkins (1993) 67 A Crim R 64 (NSW CCA).

40. See para 5.43.

41. There have recently been a number of major reviews and initiatives affecting the juvenile justice system: for a list, see NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (DP 35, 1994) at para 13.6. See also Human Rights and Equal Opportunity Commission, Juvenile Justice and Young People of Non-English Speaking Background: Discussion Paper (Sydney, 1994).

42. See generally Children (Criminal Proceedings) Act 1987 (NSW) Part 2 Division 4.

43. See C Cunneen and R White, Juvenile Justice: An Australian Perspective (Oxford University Press, Melbourne, 1995) at 220-221.

44. As in Children (Criminal Proceedings) Act 1987 (NSW) s 33.

45. See R v Vangelder (NSW CCA, No 60107/93, 28 February 1994, unreported); R v Bassett (NSW SC, No 70082/93, 20 May 1994, Hunt CJ at CL, unreported). Compare R v Tucker (NSW CCA, No 60254/90, 13 April 1992, unreported). See further para 5.60.

46. For example, R v Bailey (1988) 35 A Crim R 458. See further paras 5.111-5.113.

47. R v Shinfield (NSW CCA, No 60090/93, 13 May 1993, unreported); R v Saunders (NSW CCA, No 60480/90, 18 February 1992, unreported); R v Powell (NSW CCA, No 60647/91, 23 March 1993, unreported) (brain damage).

48. R v Letteri (NSW CCA, No 60407/91, 18 March 1992, unreported) at 14 per Badgery Parker J (with whom Gleeson CJ and Sheller JA agreed). See also R v Champion (1992) 64 A Crim R 244. Compare R v Mason-Stuart (1993) 68 A Crim R 163 at 164; R v Shinfield (NSW CCA, No 60090/93, 13 May 1993, unreported).

49. See New South Wales Law Reform Commission, People With an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (DP 35, October 1994) at paras 11.57-11.73.

50. See People With an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues at Chapter 11.

51. See New South Wales Law Reform Commission, Annual Report 1995 at 15.

52. See paras 3.42, 5.9-5.12.

53. See paras 2.20-2.21. The Canadian Sentencing Commission was of the view that, in practice, maximum penalties “have little impact upon the sentences handed down by judges and only serve to confuse the public”: see Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, Ottawa, 1986) at 199-200.

54. See P H Rossi, E Waite, C E Bose and R E Berk, “The Seriousness of Crimes: Normative Structure and Individual Difference” (1974) 39 American Sociological Review 224; K Pease, J Ireson, S Billingham and J Thorpe, “The Development of a Scale of Offence Seriousness” (1977) 5 International Journal of Criminology and Penology 17; P H Rossi and J P Henry, “Seriousness: A Measure for All Purposes?” in M W Klein and K S Teilmann (eds), Handbook of Criminal Justice Evaluation (Sage Publication, London, 1980) at 489-505; A von Hirsch, “Commensurability and Crime Prevention: Evaluating Formal Sentencing Structures and Their Rationale” (1983) 74 Journal of Criminal Law and Criminology 209; R Fox and A Freiberg, “Ranking Offence Seriousness in Reviewing Statutory Maximum Penalties” (1990) 23 ANZ Journal of Criminology 165.

55. See para 1.6.

56. Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, Ottawa, 1986) at 195-210; Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at Chapter 3; Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 293-322; Victoria, Sentencing Task Force, Report to the Attorney-General, Review of Statutory Maximum Penalties in Victoria (Melbourne, 1989). See also Ireland, Law Reform Commission, Consultation Paper on Sentencing (Dublin, March 1993) at 300-308.

57. Victoria, Sentencing Task Force, Report to the Attorney-General, Review of Statutory Maximum Penalties in Victoria (Melbourne, 1989).

58. Sentencing Act 1991 (Vic) s 109.

59. See A Freiberg, “Sentencing Reform in Victoria: A Case-Study” in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995) at 67.

60. Freiberg (1995) at 67.