USE OF IMPRISONMENT AS A SENTENCING OPTION
4.1 In 1994, imprisonment accounted for 6.05% (5,111) of sentence dispositions at New South Wales Local Courts and 52% (1,938) in higher courts.1 Between 1990 and 1994, the total sentenced prisoner population in New South Wales rose by almost 36% (and by almost 38% for male prisoners).2
4.2 New South Wales has one of the higher rates of imprisonment in Australia.3 Statistical analysis fails to account for this. The size of a prisoner population is a function of both the rate of entry into the prison system and the length of sentence.4 Using data relating to these factors, the Bureau of Crime Statistics and Research has conducted two studies (one published in 1992,5 the other in 1995)6 which have attempted to explain the differences between the New South Wales and Victorian rates of imprisonment - Victoria being the State which is demographically most similar to New South Wales, yet with an imprisonment rate almost half that of New South Wales.
4.3 As to entry into the prison system, the studies show that relatively more people are charged and appear before the courts in New South Wales than in Victoria, and that relatively more people are sent to prison.7 This may be attributable to more efficient policing or to a higher crime rate in New South Wales.8 Further, New South Wales population and reception rates are inflated by the availability of periodic detention (which is not a sentencing option in Victoria). New South Wales also has a much larger fine defaulter prison population than Victoria. As to length of stay, when periodic detainees and fine defaulters are removed from the data, New South Wales prisoners were found to spend about 20% longer in custody than Victorian prisoners.9 It is not, however, known whether longer custodial periods in New South Wales are due to heavier sentences being imposed for each category of offence, or whether New South Wales courts deal with a more serious profile of offenders.10
4.4 The Commission is gravely concerned at the level of imprisonment in New South Wales, particularly at the length of time served.11 Length of sentences inevitably increased in New South Wales as a result of the “truth in sentencing” legislation’s abolition of remissions without any corresponding reduction in sentences.12 The Commission urges that further research be undertaken into the level of imprisonment in New South Wales to attempt to provide answers to the questions raised by the statistics in paragraphs 4.2 and 4.3. In particular, research should be directed to an investigation of whether a pattern of longer sentences in New South Wales (as opposed to, say, Victoria), is consistent across categories of offences.13
REMISSIONS AND PAROLE14
4.5 Remission of sentences of imprisonment operates to reduce a sentence so that the offender may be released unconditionally before the date on which the term of the sentence expires. Remission of sentence was a practice that existed from the earliest days of the colony. The power originated in Governor Phillip’s Commission of 1787, and first received legislative recognition in the Prisons Regulations 1867, made under the Prisons Act of 1840 (4 Vic No 29). Three sorts of remissions developed:
- earned - those which accrued as a result of the good behaviour (and were forfeited by the misconduct) of the prisoner while in custody;
- unearned - those that accrued automatically in accordance with a predetermined rate;
- windfall - those attributable to external factors, such as strike action by prison warders or a Royal visit.
4.6 The availability of remissions was regulated in all legislative re-enactments of the Prisons Act. Regulation 110 of the Regulations published in 1968 provided for a remission of up to one-third of the term of imprisonment to which the offender was sentenced. In practice, the grant of such remissions was “virtually automatic.”15 In addition, amendments to the Prisons Act 1952 in 1968 allowed for remissions of up to fifteen calendar days per month of custody to be granted by the Corrective Services Commission “as it considered to be appropriate, having regard to the prisoner’s general conduct during the whole of that month and to the prisoner’s performance in industry or education or both during that month.”16
4.7 Another factor which affected the length of time offenders actually spent in custody was parole, which was introduced by the Parole of Prisoners Act 1966. Parole has its roots in the idea that punishment should rehabilitate the offender back into the community as much as possible. Section 4 of the Act required judges to specify - in addition to the total or “head” sentence of the court - a “non-parole period”, which was a component of the former. The non-parole period commenced at the beginning of the offender’s sentence, and the offender could not be released from custody until that period expired. It represented the minimum time which justice required the prisoner serve in custody, having regard to all the circumstances of the offence.17 Upon the expiry of the non-parole period (yet during the currency of the total sentence) the offender became eligible to be released from prison under parole supervision, and upon certain conditions. The prisoner had no right to be released after the expiry of the non-parole period. A Parole Board was formed to decide whether prisoners who had served their non-parole period should be released before the total sentence of the court expired.
4.8 Since its introduction in the 1960s, parole existed in addition to remissions. This co-existence raised particular problems in determining the length of time an offender would actually spend in custody. Before parole was introduced, remissions could simply be deducted from the total sentence length. With the introduction of parole in New South Wales, sentences comprised two distinct periods: the total, or head sentence (from which remissions were deducted); and the non-parole period (from which remissions were not deducted). This left open the theoretical possibility that remissions, when deducted from the head sentence, would result in the unconditional release of a prisoner prior to the expiration of the non-parole period (and therefore before the commencement of the period during which the prisoner was eligible for parole). In practice, eligibility for parole arose before entitlement to unconditional release, via remission.18
4.9 In 1983, the Probation and Parole Act 1983 replaced the Parole Act 1966. Under the Regulations of the new Act, a prisoner was entitled to reductions from the non-parole period in proportion to the reductions which would be made from the head sentence due to remissions.19 While remedying the problem referred to above, the new regime created its own problems. In particular, the sentencing process was increasingly criticised because of a perception that sentences handed down by the trial judges were not matched by the period of time actually spent in custody.
[T]he courts ... were quick to point out the difference between appearance and reality which necessarily resulted from a legislative scheme under which sentencing judges specified a non-parole period, before the expiration of which a prisoner was not to be released from custody, existing alongside a system of remissions which applied to the period so specified. The result was an absence of what came to be referred to in later public debate as “truth in sentencing”.20
4.10 The “absence of truth” occurred because the courts consistently held that remissions should not be taken into account when setting the non-parole period of the sentence.21 As the offender had no legally enforceable right to remissions, the courts were not at liberty to extend the non-parole period by an amount representing the likely “discount” on sentence which would be obtained through remissions.22 In addition, there was community confusion and resentment as to so-called early release of prisoners.23 Media treatment of these issues did not always clarify the position.24 Moreover, the issues of parole, remissions and early release (and the legitimate roles of the judiciary and the executive in these areas) were merged in the public debate with a small number of instances of early release involving corrupt payments.25 It was against this historical background that the Sentencing Act 1989 (NSW) was enacted.
"TRUTH" IN SENTENCING
The basic provisions of the Sentencing Act 1989
4.11 The Sentencing Act 1989 (NSW) lays down new principles for the determination of sentences of imprisonment. Section 3 specifies the objects of the legislation:
4.12 The Sentencing Act applies only to sentences of imprisonment. It has no application to the range of non-custodial options (such as fines and community service orders) which are available to judicial officers.26 Nor does the Act apply to terms of imprisonment imposed:27
- for default of payment of any fine or penalty;
- for life, or for an indeterminate period;
- upon a habitual criminal under the Habitual Offenders Act 1957 (NSW); or
- by way of periodic detention under the Periodic Detention of Prisoners Act 1981 (NSW).
Further, the Act does not apply to any sentence of “detention in strict custody” made under s 25 or s 39 of the Mental Health (Criminal Procedure) Act 1990 (NSW).28
4.13 A key feature of the Act is the abolition of all remissions.29 This has the effect that the minimum duration of the offender’s incarceration is determined by the sentencing judge and is not subject to subsequent administrative modification (eg by allowing remissions to reduce the term). The offender must serve the minimum term of the sentence. This is what is meant by “truth in sentencing”.30
4.14 The Sentencing Act has also made important changes to prisoners’ eligibility for release on parole (that is, release after the minimum term has expired, and during the currency of the additional term). Under the Probation and Parole Act 1983 (NSW), prisoners enjoyed the presumption that they would be released on parole at the expiry of their non-parole period.31 The Sentencing Act has reversed that presumption, requiring the Offenders Review Board to be satisfied that release is appropriate, “having regard to the principle that the public interest is of primary importance”.32 The law and procedure relating to parole is discussed in Chapter 7.
Minimum and additional terms of imprisonment
The necessity for minimum and additional terms
4.15 The core provision of the Sentencing Act 1989 (NSW) is s 5, which reads:
(1) When sentencing a person to imprisonment for an offence, a court is required:
(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.
(3) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision.
(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence.
Under this section, an offender sentenced to a term of imprisonment must be sentenced to both a minimum and an additional term. The minimum term represents the term of imprisonment which the prisoner must serve in gaol. The additional term represents the term during which the prisoner is eligible to be released on parole.
4.16 The only exception to the requirement of fixing a minimum and an additional term occurs where the judge imposes a fixed term of imprisonment under s 6 of the Act. A fixed term has the same effect as a minimum term, but without an additional term attached. Section 6(2) of the Sentencing Act 1989 permits the court to set a fixed term of imprisonment:
4.17 Where the court would otherwise sentence the offender to a total sentence of six months or less, he or she must be sentenced to a fixed term of imprisonment.33 The effect of this provision is that short term prisoners are ineligible for parole.34
The ratio of minimum to additional terms
4.18 Section 5(2) of the Act provides that the additional term must not exceed one third of the duration of the minimum term, unless there are “special circumstances.” The effect of the subsection is to limit substantially the exercise of judicial discretion in passing sentence upon an offender. In the absence of “special circumstances”, the duration of the offender’s parole is limited to a maximum of one quarter of the total sentence. However, the sentencing judge has the discretion, subject to the general principles of sentencing law, to impose an additional term of less than one third of the minimum term. While a sentencer who is minded to set an additional term exceeding one-third of the minimum term is constrained by s 5(2), there is nothing in the wording of the subsection constraining the discretion in relation to additional terms less than one-third of the minimum term.35
Setting the minimum term
4.19 Independently of the constraints imposed by s 5(2) of the Sentencing Act, it is important to note that the minimum term, or non-parole period, represents the time that the sentencer determines the offender must, in justice, serve in gaol given the circumstances of the crime and of the offender.36 Thus, factors influencing the determination of the total sentence are also relevant, though not necessarily of the same weight, in determining a minimum term.37 The minimum term is not to be seen as the shortest time required before the offender’s prospects of rehabilitation can be assessed, but rather as mitigation of punishment through conditional freedom.38
Methodology
4.20 A question has arisen about how the courts should approach their task in setting the minimum term of a sentence under s 5 of the Sentencing Act 1989. Does the section require the minimum term to be calculated in isolation from the additional term? Or should the court focus on the total sentence, determining the minimum term as a component of the total sentence? The weight of authority favours the view that an appropriate total sentence should be set as a starting point.39 Other authority asserts that a minimum term be set before the additional term.40 A third view suggests a provisional assessment focusing on the minimum term.41 A fourth view is that the court should not be constrained by any particular approach.42
4.21 On the face of the legislation, it is clear that the minimum term is to be set before the additional term.43 This approach to sentencing was termed the “bottom up” approach in the Second Reading Speech.44 It differs from the approach taken under the previous regime, which required the head sentence to be specified, followed by the specification of the component non-parole period (analogous to the minimum term). The Minister explained the “bottom up” procedure as follows:
The court will begin by focusing on the question of how much time a person must spend in prison. The court’s answer to this question will become the minimum term of imprisonment. The court will then turn its mind to the period that it thinks the prisoner should spend on parole. This period - to be called the additional term - will then be added to the minimum term of imprisonment.45
4.22 In a submission to the Commission, Justice Dunford has argued that the “bottom up” process was intended by the Act and should be restored. He argues that s 5(1) should be amended so that sentencers are required to “consider and set” a minimum term first (as opposed merely to setting the minimum term first).46 One advantage of this approach may be that it would underline the point that a totally new sentencing regime began with the Sentencing Act 1989.47 This could result in a reconsideration of sentencing ranges and neutralise the effect of the Legislature’s failure to specify that the abolition of remissions ought to be taken into account by the courts in determining sentence length.48
4.23 The Commission’s provisional view, which we develop below,49 is that s 5(2) of the Sentencing Act 1989 should be repealed. If this occurs, there will no longer be a predetermined ratio between the minimum and additional terms. In that event, it is difficult to see how proper consideration can be given to the appropriateness of the total sentence unless that sentence is itself the subject of initial determination. Even if our recommendation that s 5(2) be repealed is not accepted, the Commission would still tentatively be of the view that the sentencing court should commence with a total or head sentence, before proceeding to apportion the minimum and additional term components of the sentence. Even where an artificial ratio governs the relationship between the head sentence and the minimum term, it does not necessarily follow that setting the minimum term will automatically result in an appropriate head sentence by simple application of the ratio.
“Special circumstances” under the Sentencing Act 1989
4.24 Section 5(2) requires the existence of “special circumstances” before an additional term exceeding the prescribed ratio can be applied to the offender’s sentence. Statistics from the Judicial Commission show that 47% of all sentences with an additional term, dispensed by the higher courts, departed from the “one third” rule of s 5(2).50 About 30% of all appeals against sentence to the New South Wales Court of Criminal Appeal in 1992 raised the issue of “special circumstances” in the appeal, and about 50% of such appeals were successful in altering the 3:1 ratio of the minimum and additional terms.51 The frequency of such appeals has prompted the Court of Criminal Appeal to suggest that sentencing judges deal with the special circumstances provision in every case,52 although failure to do so will not necessarily provide the basis for quashing the sentence on appeal to the Court of Criminal Appeal.53
Case law
4.25 In R v Phelan,54 the Court of Criminal Appeal held that more than mere subjective features of the case were required to substantiate “special circumstances” under the Act:
“Special” does not necessarily mean “unusual”, but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s 5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration.55
In the instant case, Justice Hunt observed that to allow the applicant’s guilty plea, his co-operation with the authorities, the restitution he had made, his age, prior good character and gambling addiction, to satisfy the “special circumstances” requirement “would effectively remove the adjective ‘special’ from the subsection”.
4.26 The purpose of parole (available during the additional term of the offender’s sentence) is rehabilitative. It is, therefore, for the prisoner’s benefit.56 It also serves the public interest. In interpreting the nature of “special circumstances” under s 5(2), the Court of Criminal Appeal has stated that the term refers to “those circumstances which justify enlarging in the prisoner’s favour the existing rehabilitative ideal of s 5.”57 The value of supervised release following imprisonment is, therefore, a policy consideration informing the interpretation of s 5 special circumstances. But the offender is disadvantaged if a sentence which departs from the 3:1 formula does not decrease the length of the minimum term. This would be contrary to the rehabilitative ideal. A sentence might be produced which was in fact greater than the court thought appropriate in the circumstances.58 Accordingly, the extension of the additional term is accompanied by a reduction of the minimum term. The sentencing judge should commence with “the need or the desirability of a longer than usual additional term, not the need or the desirability of a shorter than usual minimum term”.59 The fact that considerations have been taken into account in setting the offender’s minimum term of imprisonment is no basis for excluding them from the range of special circumstances under subsection (2).60
4.27 Factors which the courts have regarded as special circumstances include:
- a discrete or non-continuous period of pre-sentence custody;61
- a requirement that the offender serve a cumulative sentence;62
- the fact that the offender has been subjected to “double jeopardy” in the determination of sentence, where the Crown has appealed against an inadequate sentence;63
- the fact that an offender will spend all or most custody in strict protection;64
- the “powerful subjective circumstances”, stemming from the lack of opportunity, and an environment of alcohol and violent abuse which are often part of Aboriginal communities, accompanied by a desire for rehabilitation.65
Statistics
4.28 Beyond the range of situations which are specifically identified in case law, observations about the nature of “special circumstances” can be derived from statistics. Statistical information records the characteristics of both the offence and the offender, and provides a general overview of the meaning of special circumstances.
4.29 Offence characteristics. Data from the Judicial Commission for 1992 show that special circumstances are identified in more than 40% of cases where the total sentence exceeds two years.66 They are found to exist in more than 60% of serious offences against the person (murder, manslaughter and malicious wounding) and found less frequently in property and drug offences.67
4.30 Offender Characteristics. Special circumstances are more often found in cases:
- involving younger offenders than in cases involving older offenders. Special circumstances were found in 60% of cases involving offenders younger than 20 years of age, while they were found in less than 40% of cases involving offenders over the age of 41.68
- where the offender is female (over 60% of cases) than where the offender is male (less than 50%).69
- where the offender has lower educational qualifications (over 50% of cases) than where the offender has trade or tertiary qualifications (just over 20% of cases).70
- the offender is unemployed or not in the labour force, than where the offender is employed.71
The position in other jurisdictions
4.31 In 1988, the Australian Law Reform Commission made recommendations generally consistent with the operation of s 5(2) and (3) of the Sentencing Act 1989 (NSW). The Australian Law Reform Commission recommended that the proportion of a sentence served in prison (as opposed to the period in which the offender was eligible for parole) should be governed by legislation, and should represent 70% of the total sentence.72 It was proposed that discretion be retained to reduce this proportion in “exceptional circumstances”, but in no case should it fall below 50% of the total sentence.73 The recommendation for the mandatory non-parole portion was accompanied by recommendations for mandatory release on parole at the conclusion of the required non-parole period and the retention of earned remissions.74
4.32 In the recently enacted Northern Territory legislation, non-parole periods must be at least 50% of the head sentence, and at least eight months in duration.75 The Sentencing Act 1995 (WA) provides that at least one-third of sentences six years or less must be served before eligibility for parole arises. For sentences over six years, the offender becomes eligible two years prior to serving two-thirds of the total sentence.76 Other jurisdictions do not specify a proportionate relationship between the minimum and additional terms.
The effect of s 5(2)
4.33 While both the rationale adopted by the Court of Criminal Appeal for finding special circumstances and the procedure adopted for determining the duration of the minimum term encourage the importation of traditional (common law) judicial discretion into determinations under s 5(2),77 Justices Hunt and Sheller have called for “urgent legislative review” of the necessity and operation of s 5. Their Honours have observed that its restriction upon the exercise of judicial discretion overlooks the varied situations assessed during the process of sentencing. Meanwhile, correction of the arbitrary effect of the section has produced a “patchwork” approach by the Court of Criminal Appeal on a case by case basis, which is unsatisfactory.78
The impact of “truth in sentencing”
4.34 It was not the government’s intention in introducing the Sentencing Act 1989 to increase the length of prison sentences and thereby compound the problem of prison overcrowding.79 However, the Act does not direct judges to take into account the abolition of remissions. The Court of Criminal Appeal has held that, in determining the duration of the minimum term, a sentencer cannot take into account the likelihood that an offender would have benefited from remissions under the previous system.80 And, while the 1989 legislation involves a “fresh approach to sentencing”81 which, in principle, frees sentencers from the need to adhere to sentencing ranges established under the old regime,82 the sentencing patterns which existed before 1989 remain generally relevant.83
4.35 Of the statistical studies conducted to determine the impact of the legislation, the most relevant for our purposes is a study conducted by the Department of Corrective Services in 1990.84 It suggests that despite average aggregate sentences being shorter, the average time to be served in custody has increased. In comparing sentences served before with those handed down after the introduction the Sentencing Act, it was found that the average minimum or fixed terms handed down following the legislation was 294 days, a 20% increase from the average of 244 days served previously.85 This estimated increase is equivalent to an overall increase in the prison population of at least 525 sentenced prisoners held on any one day.86
4.36 The statistics must, however, be interpreted with much caution. Sentencing and imprisonment are processes affected by many variables and it is impossible that any single factor or factors can be isolated as responsible for such changes as occur. For example, it has been suggested that prison overcrowding may be more a result of higher arrest rates than increases in length of custody. The daily average number of prisoners in New South Wales had been increasing since the 1984-85 financial year, well before the introduction of the Sentencing Act.87 In the end, all that can be said with reasonable certainty is that the Sentencing Act 1989 has, generally speaking, resulted in offenders serving significantly longer periods in custody, and this in turn is one of several important determinants of the prison population and the imprisonment rate.
Proposals for reform
4.37 Criticisms of the Sentencing Act 1989 focus upon increases in custodial lengths and the corresponding impact on prison overcrowding88 - the relevance of the latter being that overcrowding significantly increases the harshness of the physical and social environment of gaol and hence, in effect, the severity of the level of punishment. Central to these criticisms is the failure of the legislature to ensure that the abolition of remissions did not result in offenders’ serving longer periods in custody. Victorian and Commonwealth legislation have also abolished remissions, but courts in those jurisdictions are required to take the absence of remissions into account when imposing sentence.89 The insertion of a like provision into the legislation in New South Wales some six years after the introduction of “truth in sentencing” legislation would probably be difficult. Even if the provision were only to apply prospectively, the Commission would not favour it, since it would, in our view, lead to an artificial reduction in the length of terms of imprisonment and to a loss of public confidence in the criminal justice system.
4.38 An alternative, which would be even more controversial, would be to reintroduce remissions. The Commission cannot think of any arguments (other than ones of political and economic expediency) for unearned remissions. Earned remissions are a different matter. They provide an incentive to good behaviour, education or good works and promote rehabilitation. For these reasons, the Law Society has recently made representations to the Minister of Community Services arguing for their reintroduction.90 The Minister referred these representations to the Commission for consideration as part of this reference.91
4.39 The Commission’s tentative view is against the reintroduction of earned remissions, but we expressly invite comments on this important issue. While we agree with the theoretical arguments in favour of earned remissions, we do not believe that the corruption and abuse potentially arising from the power imbalance which surrounds their administration, makes their reintroduction feasible.92 The Law Society has attempted to meet this objection by arguing that integrity can be given to a system of earned remissions by openness, accountability, consistency and wide publicity, and by giving to an independent body (such as the Offenders Review Board) responsibility for their allocation. In the Commission’s view this suggestion may not work in practice, because it would rely on behavioural and other reports from within the prison system, with all the potential for abuse which that involves. In our view, the rehabilitative goal of punishment is sufficiently advanced by allowing the courts greater freedom than that given by s 5(2) of the Sentencing Act in fixing the ratio of the minimum to the additional term.
4.40 Many of the submissions made to the Attorney General’s Sentencing Review were in favour of the abolition of s 5(2) of the Sentencing Act 1989. Reasons in favour of abolition were the prospect of shorter periods of imprisonment (followed by longer periods on parole);93 discouraging unwarranted appeals and the desirability of greater judicial discretion.94 Justice Dunford has argued that the case law on “special circumstances” has developed to provide “an excuse” for reducing the minimum term, and submits that s 5(2) and (3) should be repealed.95 A submission to the Commission by the Department of Corrective Services has also recommended the abolition of s 5(2). The Department cited increases in the length of custodial sentences as the reason for its submission on this point.96 However, it was also argued that the considerable case law, which has developed the meaning of special circumstances, created some basis for greater consistency in sentencing.
4.41 The Commission agrees that s 5(2) has “deprived the courts of this State of a valuable sentencing option, and it has imposed an almost unyielding straight jacket upon them”.97 The Commission is, therefore, of the view that s 5(2) and (3) of the Sentencing Act 1989 (NSW) should be repealed without legislative replacement. The effect will be that, in cases in which a fixed term sentence is not imposed, the ratio between the minimum and additional terms is set in the sentencing judge’s discretion.98
MULTIPLE SENTENCES
Aggregate sentences?
4.42 Section 12 of the Sentencing Act 1989 states that where an offender is sentenced to more than one term of imprisonment, the court must set minimum and additional terms, or a fixed term, for each sentence imposed. The Department of Corrective Services has submitted that this requirement is confusing and increases the potential for error where many terms of imprisonment are imposed.99 The Department’s chief point of concern is the expiry date of the last minimum term, as this is the date on which the offender is eligible to be considered for parole. A major concern for the Offenders Review Board, on the other hand, is the sentence with the longest additional term, as the expiry of this sentence marks the end of the parole period.100 To deal with these problems, the Department of Corrective Services submits that the courts should hand down an aggregate sentence with a single minimum term.
4.43 The Attorney General’s Sentencing Review also raised the possibility of imposing an aggregate sentence featuring a single minimum term.101 The Review pointed to the requirement under Commonwealth law for the imposition of a single non-parole period accounting for all offences.102 In Victoria, a single non-parole period must be imposed by the court where it proposes to sentence an offender to a non-parole period before the expiry of a previous non-parole period.103 A procedure also exists under New South Wales law for recognising a single sentence for multiple offences where the offender has admitted guilt in certain circumstances.104
4.44 Several submissions to the Attorney General’s Sentencing Review suggested that changes to the operation of s 12 were either undesirable or unnecessary. It was pointed out that it was important to know exactly how the sentence of a person convicted of multiple offences was calculated,105 and that imposing a single minimum term might pose difficulties where (for example) one conviction was subsequently quashed on appeal.106 The Bar Association was in favour of imposing single non-parole periods in respect of multiple offences.107
4.45 The Commission has not come to any view on this issue, but seeks submissions on the value of requiring courts to impose a single sentence (composing one minimum term and one additional term) which accounts for all offences of which the offender has been found guilty.
Cumulative sentences
Concurrent or cumulative?
4.46 Where an offender is sentenced for multiple offences or where the offender has already been sentenced for a previous offence, the court must decide whether the sentences are to be served concurrently or cumulatively. The court has the discretion to order sentences be served concurrently, that is, at least one sentence must commence at the same time as another sentence. The effect of such an order is that the shorter sentence of imprisonment is subsumed by the longer term. The court may also order that a sentence is cumulative upon another sentence. If such an order is made, the cumulative sentence commences only after the previous sentence expires.
4.47 A cumulative sentence has the effect of prolonging the duration of the time spent in custody by offenders. The Australian Law Reform Commission recommended the insertion of a clear legislative presumption in favour of concurrent, rather than cumulative, sentencing.108 The Australian Law Reform Commission was of the view that cumulative sentences should be imposed in exceptional circumstances only, and these should be specified by the court. The rationale for the Australian Law Reform Commission’s recommendation was that offenders should not be subjected to an “excessively severe penalty” having regard to the total “criminality” of the incident(s) concerned. A presumption in favour of concurrent sentences applies in the Australian Capital Territory,109 the Northern Territory,110 Victoria,111 Queensland112 and Western Australia.113
4.48 In New South Wales, a presumption in favour of cumulative sentences exists where any person is convicted of assault or other offence against the person, and the offence was committed while the offender was serving a sentence of imprisonment.114
4.49 The Commission’s tentative view is that there should be a legislative presumption in favour of concurrent sentences for the reasons which have been articulated by the Australian Law Reform Commission.
Section 9 of the Sentencing Act 1989
4.50 Section 9 of the Sentencing Act 1989 (NSW) governs the effect of a cumulative sentence upon any minimum or additional terms:
(1) If a court imposes a further sentence of imprisonment which is to be cumulative on a previous sentence imposed by the court or to which the person is subject (being a previous sentence which has a minimum term), the further sentence must commence at the end of the minimum term of the previous sentence.
(2) If there is more than one previous sentence which has a minimum term, the further sentence must commence at the end of the minimum term that last expires.
(3) If the further sentence is imposed during the additional term for the previous sentence or during the additional term that last expires, the further sentence must commence on the day it is imposed or on an earlier day specified by the court.
...
(6) Otherwise, this section does not affect any law relating to the time when a sentence commences or commenced, or comes to an end, and any power of a court to direct that a sentence is to commence at the expiration of another sentence.
Section 9(1)
4.51 Section 9(1) of the Sentencing Act requires sentences cumulative upon a previous sentence to commence at the end of the minimum term of the previous sentence. However, in R v Elder, the Court of Criminal Appeal held that s 9(1) imposes no fetter upon the discretion of the sentencer to impose a sentence partly concurrent and partly cumulative on an existing minimum term.115 Partly cumulative terms are expressly recognised in Commonwealth legislation,116 and, acting from an abundance of caution, the Commission is of the view that legislation ought to recognise the possibility of partly cumulative sentences.
Section 9(3)
4.52 Section 9(3) requires that a sentence imposed while an offender is serving the unexpired portion of an additional term must commence at the date it is imposed, or on an earlier date specified by the court. The Chief Magistrate has forwarded to the Commission the concerns of a Sydney Magistrate about the operation of this subsection.117 An offender was serving part of an additional term, which had just over four months left to run. The Magistrate wished to impose a four month sentence on the offender for an assault. The effect of s 9(3) is that the term of imprisonment served by the offender was only marginally longer than the duration of sentence served at the time the additional term expired. A similar issue arises where the offender is sentenced for escaping from lawful custody during the unexpired portion of an additional term.118
4.53 Another problem in the interpretation of s 9(3) arises where a prisoner is serving part of an unexpired additional term (parole not having been granted) from one sentence and the remainder of a fixed term from another sentence at the time the court imposes a cumulative (third) sentence upon the offender. This situation arose for consideration in R v Blanchard119 and in R v Arnold.120 In both cases, the Court of Criminal Appeal held that the last cumulative sentence must commence on the day it is imposed, or on an earlier day specified by the court.
4.54 However, in the latter decision, Justice Hunt dissented from the judgments of Chief Justice Gleeson and Justice Abadee. His Honour argued that s 9(3) had no application to the situation where the offender was serving a fixed term (as opposed to a minimum term, which is expressly provided for in that subsection). Justice Hunt held that s 9(6) applies to fixed term sentences, thereby removing them from the ambit of the requirements set out in s 9(3).121 Significantly, Chief Justice Gleeson accepted that the majority decision was founded upon a literal, rather than purposive, construction of s 9,122 while Justice Abadee referred to the “anomalies” that might result from the same construction.123 Chief Justice Gleeson referred to the possibility of legislative amendment of the section, and Justice Hunt regarded amendment of s 9(3) as a matter of “overwhelming urgency”.124
4.55 As noted above,125 the Department of Corrective Services has submitted that an aggregate sentence should be imposed on an offender convicted of multiple offences. The Department further submits that aggregate sentences will correct the problems identified with cumulative sentences.126
4.56 The Commission’s tentative view is that s 9(3) should be amended to allow cumulative sentences to be imposed during the currency of an existing term of imprisonment.
Cumulative sentences, escape from lawful custody and prison offences
4.57 The concerns about the operation of s 9(3) where an escape from custody has occurred, have been mentioned above.127 These concerns arise because, amongst other matters, the provisions of other legislation require additions to be made to a term of imprisonment where a prisoner escapes from imprisonment128 or is guilty of a prison offence.129 To the extent to which such other legislative provisions are in conflict with the provisions of the Sentencing Act, the latter Act prevails.130 The Attorney General’s Sentencing Review suggested that any revision of the cumulative sentence provisions should make allowance for the relevant provisions under other legislation.131 The Commission tentatively agrees.
Restrictions on imposing cumulative sentences
4.58 Section 444(4) of the Crimes Act 1900 (NSW) prevents a magistrate from imposing:
4.59 An exception to these provisions applies, by virtue of s 444(5), where the offence(s) involved an assault on a prison officer while in the execution of his or her duty. The legislature has recognised that prisoners who assault a prison officer should be liable to greater punishment by magistrates than other offenders. The Department of Corrective Services has submitted that s 444(5) should be amended to include any offence committed while the offender is serving a sentence of imprisonment.132
4.60 Section 444(5) was inserted into the Crimes Act 1900 by the Crimes (Amendment) Act 1980. The provision was added in response to several assaults against prison officers (particularly one occurring in Goulburn gaol) where subsequent charges had been brought in the Local Courts. There is no requirement to bring the charges in the Local Court, and the Second Reading Speech to the amending Act refers to the availability of the District Court to hear such charges.133 Because of the District Court’s unfettered jurisdiction in this area, the problems to which the amendment was directed, were described as “limited”. During the second reading of the Bill, the Minister noted:
I emphasize that this bill does not seek to undermine the general principle that there must be limitations upon the power of magistrates to sentence offenders to lengthy terms of imprisonment. There is no intention to cut into what is now the jurisdiction of the District Court.134
4.61 In this context, it may be argued that the jurisdiction of the Local Court should not be widened by amending s 444(5) to include any offence committed during the course of imprisonment. The Attorney General’s Sentencing Review reported that it received widespread opposition to the idea of removing the three-year limit contained in s 444(4), although Magistrates tended to favour its abolition.135 The amendments suggested by the Department of Corrective Services and outlined in paragraph 4.59 are narrower in their scope than complete abolition of s 444(4). The Commission’s present view is that s 444(4) and s 444(5) should not be amended. However, we invite submissions on the amendment suggested by the Department of Corrective Services.
Cumulative sentences and a right to be released on parole
4.62 Section 24 of the Sentencing Act 1989 makes release from gaol on parole mandatory for offenders who have been sentenced to a term of imprisonment for three years or less, and whose minimum term has expired. Offenders serving sentences longer than three years have no such entitlement. While the Offenders Review Board must consider their applications for parole at the expiry of their minimum term, these offenders have a right to release only when their total sentence (that is, including the additional term) expires.
4.63 Subsection 24(4) applies to offenders who are already serving a term of imprisonment of longer than three years duration at the time they are sentenced to another term of imprisonment of less than three years duration. Such offenders cannot rely on any right to be released at the expiry of the minimum term of the latter sentence. They must be entitled to release under the provisions applying to offenders serving sentences of more than three years, before they can be released on parole.136
4.64 Where an offender is sentenced to a term of imprisonment cumulative upon an existing sentence, it is possible that the first sentence (minimum and additional term) will expire before a minimum term of the cumulative sentence. In this situation, the former term of imprisonment cannot restrict the offender’s right to release, as the total sentence has expired. If the cumulative sentence (in total) is for three years or less, the offender has a right to release on parole when the minimum term of that sentence expires. The Attorney General’s Sentencing Review suggested that offenders should not have a right to be released in such circumstances, and that the Offenders Review Board should decide whether parole is appropriate in the circumstances.137 The Commission expresses no opinion on this issue, but welcomes submissions addressing it.
LIFE SENTENCES
Background to the current law
4.65 Prior to the Sentencing Act 1989, most offenders sentenced to a term of life imprisonment in fact served a term in gaol considerably less than a natural life sentence. Under s 463 of the Crimes Act 1900 (NSW), which has since been repealed, offenders could be released from prison prior to the completion of the sentence imposed by the sentencing judge. The provision stated:
The Governor may grant to any offender a written licence to be at large within limits specified in the licence but not elsewhere, during the unexpired portion of his sentence, subject to such conditions endorsed on the licence as the Governor shall prescribe, and while such offender continues to reside within the limits so specified, his sentence shall be suspended.
4.66 Section 463 was often invoked when dealing with offenders sentenced to imprisonment for life. The use of the section meant that, on average, life sentence prisoners served 11.7 years, with almost 93% of lifers serving 15 years or less.138 Exercise of the power to release on licence was at the discretion of the executive. It was a power similar to the one which provided prisoners with remissions and suffered the same fate as remissions. The release on licence scheme was repealed by s 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989 (NSW) in order to accommodate the “truth in sentencing” system.139
Natural life sentences
4.67 The provisions of the Sentencing Act 1989 relating to the setting of minimum and additional terms of imprisonment do not apply to a life or any other indeterminate period of sentence.140 A life sentence is the legislatively prescribed maximum penalty for murder141 and commercial drug trafficking.142 Since 12 January 1990,143 “life” means that the sentence must be served for the period of the prisoner’s “natural life”. The repeal of the Release on Licence scheme means that there is no longer any provision for an offender sentenced to life imprisonment to be released from gaol except in the exercise of the royal prerogative.144
Principles applicable to the imposition of a natural life sentence
4.68 Both s 19A of the Crimes Act 1900 (which prescribes a natural life sentence as the maximum penalty for murder) and s 33A of the Drug Misuse and Trafficking Act 1985 (which prescribes a natural life sentence as the maximum penalty for commercial drug trafficking) preserve the availability of lesser penalties.145 As at November 1995, a natural life sentence under s 19A had been imposed on nine occasions.146 The Commission is not aware of any natural life sentence imposed under the Drug Misuse and Trafficking Act.
4.69 The common law principle that the maximum penalty for any offence should be reserved for the worst category of case for which the maximum penalty is prescribed147 is not displaced by s 19A.148 When determining whether the circumstances of the offence disclose the worst category of case, it is incorrect to consider whether it might be possible to envisage a worse case, since “ingenuity can always conjure up a case of greater heinousness.”149 Accordingly, it is inappropriate to compare the facts of a particular case to those in which a life sentence has been previously handed down, and simply point to greater gravity in those other cases.150 In R v Twala, Justice Badgery-Parker (with whom Justices Carruthers and Finlay agreed) stated the principle as follows:
[I]n order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective factors mitigating the penalty to be imposed). Of course, it goes without saying, that the court is entitled to consider the facts in the [relevant cases] to assist in the calculation of the degree of criminality in the subject case.151
In referring to circumstances which would prevent the imposition of a life sentence, it appears that the sentencer should look only to those objective features which would relevantly mitigate the seriousness of the offence. In Twala, the mental disturbance of the offender (as opposed to a psychiatric illness) as a result of the breakdown of his marital relationship sufficiently mitigated the offence to avoid the “worst category” label.
Mandatory life sentences
4.70 Following the abolition of capital punishment in New South Wales in 1955, offenders convicted of murder were subject to a mandatory life sentence.152 In 1982, the courts were given a limited discretion to award sentences less than life imprisonment, where extenuating circumstances relating to the culpability of the offender existed.153 In October 1995, the Government placed the Crimes Amendment (Mandatory Life Sentences) Bill 1995 before Parliament. The explanatory note to the Bill states that its object is to amend the Crimes Act “to specify the circumstances in which it will be mandatory for a court to impose a life sentence on a person found guilty of murder or of trafficking in large commercial quantities of heroin or cocaine.”154
4.71 In relation to a conviction for murder, the Bill proposes the following addition to the Crimes Act 1900 as s 431B:
Section 442 of the Crimes Act allows the sentencing judge to pass a sentence less than a life sentence, where a section of the Act makes an offender liable to such punishment.
4.72 The Commission can see a number of problems with this provision.155 First, it is strictly unnecessary in that it adds nothing to the law as it currently stands. The courts already have the discretion to pass a life sentence where a statute permits and where the circumstances of the offence, the culpability of the offender and the furtherance of sentencing objectives so require.156 Secondly, it is, of course, difficult to refer to a “mandatory” sentence in any meaningful sense, when a co-existing provision expressly preserves the discretion to pass a lesser sentence.157
4.73 Nevertheless, it might be argued that, at a time when the common law has come under criticism, a restatement of the law by the legislature operates to support and reinforce the law and the courts which have an independent constitutional duty to ascertain and apply it. In this context, it may matter little that the criticism is ill-informed or inappropriate: the legislature might reasonably consider that it has a responsibility to lend its weight to supporting the law as applied by the courts. This argument is, by its very nature, a political rather than a legal one.
4.74 In respect of the trafficking of commercial quantities of heroin and cocaine, the Bill requires the imposition of a life sentence applying the same criteria as those which apply in respect of murder.158 However, in respect of the drug offences, the court must also be satisfied that:
(a) the offence involved:
(i) a high degree of planning and organisation; and
(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward.
Where these criteria are satisfied, the court must apply a sentence of life imprisonment.159
4.75 The gravity of the conduct required before a life sentence becomes mandatory is exceptionally high. If the criteria come to be treated as a code, there is a danger that this may make it harder to impose a life sentence on someone who would otherwise be deserving of one but whose circumstances do not fall precisely within the legislative provisions. This could also lead to marked sentence disparity between cases which are similar in all but a few respects, some attracting a mandatory life sentence and others not. Under these circumstances, it may be doubted whether the resort to life sentences for drug trafficking could ever be more frequent than it is at present.
4.76 More generally, the Commission is just as opposed to mandatory life sentences as it is to other statutory minimum penalties (except in cases involving minor fixed penalties, such as traffic offences).160 The potential rigidity of such sentences interferes with the discretion of the sentencing judge which must be preserved if justice is to be done in individual cases. Further, the introduction of mandatory life sentences is likely to have an adverse impact on the efficiency of the criminal justice system. Persons facing such sentences are likely to be less willing to plead guilty to the charges laid against them. This will place an increased burden on the courts, and prosecution and law enforcement agencies.161 Research from the Judicial Commission of New South Wales which evaluated the impact of the abolition of s 19 mandatory life sentences (and their replacement by the s 19A discretionary life sentence regime) revealed a marked increase in the number of guilty pleas for murder.162 The Commission also notes that, with respect to persons below the age of 18 years, the provisions of the Bill are probably in conflict with Article 37 of the Convention of the Rights of the Child 1989 which requires at least the provision of a minimum term as part of a life sentence.163
4.77 The Commission, tentatively, does not favour mandatory life sentences in New South Wales, but invites submissions on this matter, particularly referable to the proposed s 431B.
Section 13A re-determinations of life sentences
4.78 Section 13A of the Sentencing Act 1989 (NSW) was introduced by the Sentencing (Life Sentences) Amendment Act 1989, accompanying the repeal of the release on licence scheme, and the introduction of s 19A of the Crimes Act 1900. To avoid the natural life amendments having retrospective effect, s 13A provides for the potential conditional release of life sentence prisoners who were serving their terms when the amendments came into operation. Section 13A provides for applications to have a minimum and additional term of imprisonment determined for prisoners sentenced to life imprisonment. The re-determination provisions apply only to “existing life sentences”, that is, life sentences imposed before or after the enactment of the section, but excluding:
- sentences for murder under s 19A of the Crimes Act 1900; or
- sentences for the cultivation, production or supply of a large commercial quantity of prohibited drugs or plants, under s 33A of the Drugs Misuse and Trafficking Act 1985 (NSW).
For such offenders, the original “natural life” sentence cannot be re-determined at any stage of the punishment.
4.79 “Existing life sentence” prisoners who have served at least eight years of their sentence may apply to the Supreme Court for the determination of minimum and additional terms of imprisonment.164 If the court decides to make the determination, the original life sentence is replaced,165 and the minimum term is taken to have commenced on the date of the original sentence (or at the date the offender was remanded into custody).166 The number of offenders eligible, or who may become eligible (after serving 8 years of their sentence), to apply for a determinate sentence is necessarily finite.167 The Serious Offenders Review Council has confirmed that the last offender who will become eligible to apply for a re-determination may lodge his application in the year 2000. In total, 257 prisoners are eligible, or will become eligible, to apply for a determinate sentence. As at 1 November 1995, the Supreme Court has heard 162 s 13A applications, of which the vast majority (153) have been granted. Six applications have been refused, and the remaining three decisions have been reserved. An additional 30 applications have been filed, and a further 14 prisoners eligible to apply for a re-determination have not yet lodged an application.168
4.80 A successful s 13A application does not result in the offender’s immediate release from custody. A successful application merely entitles the offender to certainty about the expiry of the minimum period he or she must spend in gaol. These terms may expire many years after the date of the successful application, and even then entitle the offender only to be considered by the Offenders Review Board for release on parole.
4.81 The principles applicable to standard sentencing procedure are generally applicable to determination of life sentence applications under s 13A.169 For example, in Crump’s case, Justice Allen referred to the importance of proportionality, the totality principle and the law’s abhorrence of preventive detention, when assessing applications.170 However, an important practical difference between the initial sentencing hearing and the subsequent application proceedings is that the offender’s progress toward rehabilitation since being imprisoned can be evaluated in the latter forum. Naturally, this will be an important factor in deciding whether or not to set a determinate sentence.171
4.82 The Commission has a number of concerns with several aspects of s 13A of the Sentencing Act. These relate both to its internal working and to its wider implications for the sentencing regime in New South Wales.
Matters to be taken into account when considering applications
4.83 Section 13A(9) sets out several factors to which the court must have regard when considering an application for a determinate sentence:
(a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and
(b) any report on the person made by the [Serious Offenders] Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person’s rehabilitation), being in either case reports made available to the Supreme Court; and
(c) any relevant comments made by the original sentencing court when imposing the sentence; and
(d) the age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),
and may have regard to any other relevant matter.
4.84 Subsection (9) poses significant difficulties of interpretation. The drafting of paragraph (a) has been severely criticised by the Court of Criminal Appeal in recent life sentence re-determination appeals. Paragraph (a) is expressly concerned with the knowledge of the relevant release practices of the judge who originally sentenced the offender, yet it is difficult to see what relevance this knowledge can have for a current determination under the section. As Justice Hunt has pointed out on a number of occasions, all life sentences for murder which are eligible for re-determination by the Supreme Court were imposed mandatorily. Prior to 1982, a sentencing judge had no discretion to pass a sentence other than imprisonment for life once a verdict of murder had been established. After the 1982 amendments, life sentences remained mandatory in the absence of circumstances which significantly diminished the offender’s culpability. Accordingly, knowledge of the judge of the release on licence practices then applicable was not relevant to the determination of the appropriate sentence.172
4.85 Finding the provision ambiguous, Justice Hunt referred to the Minister’s Second Reading Speech which accompanied the legislation. That Speech referred to the fact that most life sentence prisoners would have envisaged release after a period of ten to thirteen years imprisonment, and that this should be taken into account under s 13A. In contrast, Justice Allen construed paragraph (a) as providing an objective footing for determining the relevant knowledge of release on licence practices.173 The knowledge of the “original sentencing court” is not the actual knowledge of the sentencing judge, but the “relevant knowledge of judges of [the Supreme] Court dealing with criminal matters at that time”174 - that knowledge being of the estimated duration of a sentence before release on licence.
4.86 The decision in Crump175 disclosed both a lack of uniform interpretation of s 13A(9)(a) and strong dissatisfaction with the drafting of the paragraph. The Commission is at a loss to determine how any sensible meaning can be given to s 13A(9)(a) of the Sentencing Act 1989. In our view, it ought to be repealed. So, in our view, should the rest of s 13A(9) with the exception of s 13A(9)(b) and (c). Section 13A(9)(d) refers to a matter which is already relevant to the court’s task.
Availability of additional terms of life imprisonment
4.87 Section 13(c) of the Sentencing Act 1989 (NSW) prevents the setting of minimum and additional terms of imprisonment where a sentence of imprisonment for life is imposed at the original sentencing hearing. This prevents the possibility of an offender serving a minimum term of imprisonment, followed by conditional release on parole for the remainder of his or her life. However, for those life sentence offenders eligible to apply for a determinate sentence under s 13A of the Sentencing Act, the Supreme Court is expressly empowered (where it agrees to set a determinate sentence) to impose an additional term for the remainder of the offender’s natural life.176 When setting a determinate sentence under s 13A, sentencers accordingly have greater discretion to deal with very serious offenders.
4.88 A submission from Justice Dunford has suggested that it should be possible to fix a minimum term of a determinate number of years with an additional term of life imprisonment at the initial sentencing hearing.177 The Australian Law Reform Commission recommended in 1988 that any offender sentenced to life imprisonment should be considered for parole after ten years.178 It is difficult to evaluate the effect that such a reform would have upon life sentences imposed upon conviction. On the one hand, offenders who otherwise would have been sentenced to a natural life sentence might benefit from the prospects of being released on parole during their additional term (which would apply for the remainder of the offender’s life). This could provide a powerful incentive for reform for prisoners who would otherwise have no prospect of release.179 On the other hand, it is possible that sentencers would be encouraged to impose more life sentences, in the knowledge that offenders released on parole during their additional terms would be returned to prison for the remainder of their lives if they breach parole conditions (however unlikely this might be).
4.89 The Commission tentatively favours Justice Dunford’s suggestion. It would allow the court to impose a life sentence but fix a minimum term of imprisonment with an additional term of life at the initial sentencing hearing. The implementation of this suggestion would not be difficult if our recommendation that s 5(2) of the Act be repealed is accepted.180 Section 13(c) of the Sentencing Act 1989 would, of course, need to be restricted to cases of natural life sentences (as defined by Parliament).181
Commencement of minimum terms
4.90 If the court chooses to grant the application to have a minimum and additional term determined under s 13A, the commencement date of the minimum term is governed by subsection (5), which provides:
A minimum term set under this section is to commence on the date on which the original sentence commenced or, if the person was remanded in custody for the offence, the date on which the first such remand commenced.
4.91 In Re Purdey, Justice Hunt drew attention to the inadequacy of the drafting of this provision since it fails to account for the situation where a life sentence was imposed upon a prisoner already serving a sentence.182 This inadequacy arises because the principle of totality applies to the actual length of sentence an offender is likely to serve, and not merely to sentences imposed for offences “committed as part of a connected and roughly contemporaneous series of offences”.183 Purdey was already serving sentences for armed robbery at the time his life sentence for murder was imposed. However, as subsection (5) requires the minimum term to commence at the time of the original sentence (or at the time of the first remand for the offence), a sentence which adequately accumulates the terms of imprisonment appropriate to Purdey’s total criminality could not be imposed. The Commission’s tentative view is that s 13A(5) should be redrafted to take into account the comments in Purdey.
Restrictions upon application for determination of life sentences
4.92 In 1993, the Sentencing (Life Sentences) Amendment Act amended s 13A to give the court power to prevent re-application for re-determination where an offender has been sentenced to life imprisonment. Section 13A(8) now provides:
If the Supreme Court declines to determine a minimum term and an additional term, the court may (when making that decision) direct that the person who made this application:
(a) never re-apply to the Court under this section; or
(b) not re-apply to the Court under this section for a specified period.
4.93 These directions may be made only where the person was sentenced for the crime of murder and “it is the most serious case of murder and it is in the public interest that the determination be made.”184 If a person is directed never to re-apply for a determinate sentence, the person must serve the existing life sentence for the term of the person’s natural life.185 In any case where the court declines the application, but makes no direction about the offender’s future application, the offender may not re-apply within two years of the court’s refusal to pass a determinate sentence.186
4.94 One submission to the Commission has claimed that these provisions would make offenders eligible to a form of penalty not available at the time of the commission of the offence.187 Such a provision may be in breach of international law, specifically Article 15.1 of the International Covenant on Civil and Political Rights (1966), which provides:
No one shall be held guilty of any offence ... which did not constitute a criminal offence under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.
4.95 Central to this argument is the idea that the liability of the offender to a “natural life” sentence under the current regime is more severe than the previous “indeterminate” life sentence (which was accompanied by the prospect of release on licence).188 While life sentence prisoners certainly had no legal right to be released from prison under the previous regime,189 practically, there remains a significant difference between a discretion to refuse to fix a release date (which existed under the release on licence regime) and a power to declare permanently that release will not be considered.190 The only answer to the argument is that a power of release under the prerogative of mercy does still remain.191
4.96 Whatever the force of this argument, it may still be argued that offenders should not be directed never to re-apply for a determinate sentence under s 13A. To make such an order effectively dismisses any hope of rehabilitation, and provides the prisoner with no incentive to reform. A periodic review of life sentences provides the Supreme Court with an opportunity to assess objectively the progress of the individual offender toward rehabilitation. Such an opportunity can be regarded as valuable, even where the prospects of rehabilitation are considered very low at the time an application for a determinate sentence has been rejected. Accordingly, the Commission is, provisionally, of the view that s 13A(8)(a) of the Sentencing Act should be repealed and that s 13A(8)(b) should be amended to allow the Court to direct that the applicant may not re-apply for a period of up to ten years. In turn, this requires the repeal of s 13A(8A) and the amendment of s 13A(8C) and s 13A(12).
PROTECTIVE SENTENCES
4.97 “Incapacitation” is usually articulated as one of the aims of punishment.192 While the language of incapacitation is not common in Australian discussions of sentencing (at least by courts), the same underlying concept is often invoked when reference is made to community protection, protective sentencing or the desirability of indefinite or indeterminate sentencing. In one sense, community protection is the object of all sentencing decisions. However, the term is also used to refer to various approaches to sentencing in Australia, which have as their purpose imprisonment of an offender beyond so-called proportional punishment. The High Court has declared, at least as far as the common law is concerned, that proportionality is the basic principle governing custodial sentences in Australia: “The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending protection of society from the recidivism of the offender”.193 This means that any form of sentencing aimed at community protection beyond proportionality (“protective sentencing”) is a deviation from the general rule which requires justification. Such deviations have emerged in various Australian jurisdictions.
4.98 Protective sentences have taken diverse forms which should be carefully distinguished:
- indefinite (or indeterminate) sentences;
- additional fixed sentences; and
- preventive detention orders.194
Some caution is required in making comparisons between jurisdictions. For example, habitual offender legislation in New South Wales takes the form of an additional fixed sentence,195 whereas legislation dealing with habitual criminals in South Australia involves indefinite detention.196
Indefinite sentences
4.99 Indefinite sentences are penalties imposed without a finite termination date. Courts may impose such penalties ab initio or as an indefinite extension of a normal fixed sentence. Although theoretically the term can apply to other penalty types, it usually refers to indefinite imprisonment and will be so understood in the material which follows.197 The power to impose indefinite sentences is widely available in Australia.198 Such a power is not currently available in New South Wales.199 The question for consideration is whether such sentences should form part of New South Wales sentencing law, having regard to their prevalence in other jurisdictions.
Types of indefinite sentence
4.100 Although indefinite sentences all share the characteristic of having an indefinite period of custody, two different types are distinguishable: an older type, involving indefinite extensions terminable by executive act;200 and indefinite sentences terminable by judicial review. The latter are now the more common and apply, in schemes which are quite similar, in Queensland, Victoria, the Northern Territory and Western Australia.201 The intention has been to introduce some elements of due process and to reduce the apparent arbitrariness of indeterminate punishment. The Victorian example is considered below.
Indefinite prison sentences in Victoria
4.101 Following repeal of the habitual criminal legislation in Victoria in 1991,202 the Victorian government amended the Sentencing Act 1991 (Vic) to introduce a power to impose indefinite sentences on serious offenders.203 The legislation was largely based on similar provisions in Queensland.204
Key provisions
4.102 A court may sentence any person over 21 who has been convicted of a serious offence205 to an indefinite term of imprisonment, whatever the prescribed maximum penalty might be.206 The court must not fix a non-parole period in respect of the indefinite sentence207 but must specify a “nominal sentence” equal in length to the non-parole period it would have fixed had the court decided to impose a fixed term.208 An indefinite sentence may only be imposed if the court is satisfied by the prosecution, to a high degree of probability,209 that the offender is a serious danger to the community because of his or her character, past history, age, health or mental condition; the nature and gravity of the serious offence and any special circumstances.210 In determining whether the offender is a serious danger to the community the court is obliged to consider whether: the serious offence is exceptional; anything relevant to this issue is contained in the certified transcript of any proceeding against the offender in relation to a serious offence; there is any medical, psychiatric or other relevant report received by it; there is a risk of serious danger to other members of the community if an indefinite sentence were not imposed; and there is a need to protect members of the community from that risk.211 An application for an indefinite sentence can be brought by the DPP or initiated by the court.
4.103 If an indefinite sentence is imposed, the court is required to state and record its reasons.212 Provision is made for review of indefinite sentences by the court. A review is to be taken, on the application of the DPP, as soon as practicable after the nominal sentence has been served.213 The offender may seek a review every three years.214 At review hearings reports can be sought by the court and both sides may challenge the contents of any such reports.215 Unless the court is satisfied to a high degree of probability that the offender is still a serious danger to the community, at any such review hearing, the court must order the discharge of the indefinite sentence. In this event, the court must also make the offender subject to a five year reintegration program administered by the Adult Parole Board.216 The offender and the DPP are both entitled to appeal to the Full Court of the Victorian Supreme Court in relation to the result of the review.
Judicial consideration
4.104 The legislation has recently been considered in the Victorian Court of Appeal in R v Carr.217 The applicant pleaded guilty to a series of serious offences arising out the circumstances of a sexual assault by him on a 77 year old woman. He was due to be sentenced when the DPP made an application for an indefinite sentence which was opposed by the applicant. The court imposed prison terms in relation to three counts and an indefinite sentence in relation to the two counts of rape. The applicant admitted 57 prior convictions between 1975 and 1993. Many of these were for burglary, theft and street offences but included five incidents (with multiple convictions on each occasion) involving sexual assaults. The application for leave to appeal against the sentence was dismissed. The Court of Appeal held that the sentencing court had carefully reviewed and correctly applied the statutory criteria to the facts of the case. The offence was exceptional (the rape of a 77 year old woman by a 36 year old man); previous offences were often accompanied by physical violence, perpetrated on impulse, often on total strangers, without planning or regard to the consequences. The court had been satisfied to a high degree of probability that the applicant was a serious danger to the community. The major challenge by the applicant to the decision of the sentencing court was to the court’s inability to predict future dangerousness. It was argued that the legislation required an assessment of a future risk which could not, in fact, be made. According to the applicant, the sentencing court was wrong in holding that the issue for decision in relation to serious danger was: is the offender a serious danger were he now to be released? However, the Court of Appeal upheld the statutory construction of the sentencing court: the primary question for that court was whether the prisoner was at the time of sentencing a serious danger to the community.218
Arguments in favour of indefinite sentences
4.105 Key arguments raised in favour of indefinite sentences include:
- The community is entitled to be protected against those likely to commit crimes involving serious violence. If such greater safety is attainable via indefinite sentences, extended imprisonment is justified.219 And, incapacitation through imprisonment of offenders convicted of serious violent crimes renders them physically incapable of committing further crime.
- The notion of proportionality as a limiting principle is subject to justifiable exceptions. An exception is justifiable where the past record of violent crime is manifest.220
- Selective incapacitation is a useful way of more rationally allocating prison resources. The task is to identify high-rate offenders and to target them.221
- Concern about potential injustice can be met by careful selection of offenders who are likely to commit violent offences using suitable criteria and imposing requirements for expert evaluations and stringent levels of proof.222
- Concern about changes in behaviour patterns in offenders incarcerated in this manner can be met by devising suitable review mechanisms.
- Indefinite sentences in Australia, in various forms, are not novel. Indeed all jurisdictions in Australia (other than New South Wales and the Australian Capital Territory) have adopted indefinite sentences of some kind. Presumably there was a public demand for such laws and they were introduced after careful consideration.
Arguments against indefinite sentences
4.106 Arguments against indefinite sentences centre on the efficacy, justice, and ethics of indefinite sentencing:
- Justice requires that a punishment be proportional to the crime and this fundamental principle is embodied in the common law of sentencing in Australia.223 The High Court has described indeterminate detention as “stark and extraordinary”.224 Ultimately, an indefinite sentence breaks “the vital nexus between the offence and the sentence. Instead it maximises the link between the offender and the sentence. No longer can it be said that the punishment fits the crime. Under this philosophy the punishment fits the criminal”.225
- Selective incapacitation, directed at dangerous offenders, is inevitably problematic. Predictive techniques are notoriously flawed. One of the key proponents of indefinite sentencing for dangerous offenders,226 concedes that at least half of those classified as risks will be wrongly placed in this category.227 Parke and Mason remark:
[T]here is a wealth of material on the assessment of risk and the prediction of dangerous behaviour. But despite these vast outpourings, there are no reliable actuarial and statistical devices as yet that can predict with any degree of certainty the likelihood of dangerous behaviour. Following an exhaustive inquiry into draft legislation authorising the preventive detention of dangerous offenders, the Victorian Parliament’s Social Development Committee concluded that, despite great efforts to develop useful indices of violent crime the predictive usefulness of those indices had still not been established.228
- Indefinite sentences, based on flawed predictions, amount to arbitrary imprisonment. Such imprisonment is a violation of human rights. Arguably, such punishment amounts to “cruel and unusual punishment”.229 Critics of indefinite sentences in Victoria have argued that such sentences violate the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory. Although the ICCPR is not part of domestic law in Australia, and accordingly, is not directly enforceable, a person adversely affected by indefinite sentence provisions could seek to petition the Human Rights Committee of the United Nations pursuant to the First Optional Protocol to the ICCPR.230
- It is difficult to prove the criteria as to dangerousness stipulated in existing legislation. For example, in Queensland judges are required to assess “the risk of serious harm to members of the community if an indefinite sentence were not imposed”.231
- It is questionable whether the discipline of psychiatry has the relevant expertise in predicting dangerousness. Moreover, is such prediction for the purpose of extending the imprisonment of an offender an appropriate role for psychiatry?232
- The procedural safeguards in existing legislation fail to prevent the potential for injustice through predictive error.
- Indeterminate sentencing legislation has distinct implications for the type of criminal to be imprisoned under it. “It will ensure that more often than justice dictates, criminals imprisoned will be young, poor, disadvantaged and members of certain racial minorities. Less often than justice demands will the imprisoned criminal be affluent and corrupt - particularly as white-collar criminals are often more able to show that they will not repeat their criminal activity”.233
- Victims may be placed at greater risk as desperate offenders may resort to homicidal violence to escape detection or to escape, if caught.234
- Juries may be reluctant to convict.235
- There may be a reduction in the rate of guilty pleas for offences involving serious violence and the prosecution’s power to secure plea-bargains may thereby be weakened.236
- Although it is difficult to estimate the actual impact, some commentators have pointed to the serious potential cost implications of indefinite sentences in terms of the prison population.237
The Commission’s view
4.107 The legislation dealing with indefinite sentences in various Australian jurisdictions is based on the understandable and laudable concern to protect the community from violent crime. However, on the available evidence it is difficult to justify the efficacy of such legislation even if one accepts this utilitarian approach as the guiding principle. Obviously the restraint which flows from extended detention inevitably prevents the offender from having the opportunity to commit crime during this period. Yet it cannot be said with any confidence that such crimes would have been committed. Even the protagonists of indefinite detention acknowledge that predictive techniques are flawed and that “false positives” are commonplace.
4.108 When one considers the objections to indefinite detention based on justice and ethical concerns together with the unreliability of predictive techniques, the case against such measures, despite their superficial attraction as a means of dealing with a difficult social problem, is compelling. The Commission does not favour the introduction of indefinite sentence legislation in New South Wales. We agree with the comments of Parke and Mason in their analysis of the Queensland legislation:
Part 10 of the Penalties and Sentences Act 1992 is based upon, first, the assumption that it is just to incarcerate offenders beyond what is proportional for the crime committed on the basis that they are dangerous, and, secondly, that it is possible to accurately forecast dangerousness. Both assumptions are at best arguable and at worst unjust and misleading.238
Additional sentences
Habitual criminals legislation
4.109 The Habitual Criminals Act 1957 (NSW) provides for certain offenders to be declared “habitual criminals”, on whom an additional term of imprisonment may then be imposed. The criteria which must be satisfied before an offender may be pronounced a habitual criminal are:
- that he or she is at least 25 years of age;
- that he or she has served at least two previous, separate terms of imprisonment (other than the punishment to be imposed for the commission of the instant offence) for indictable offences;
- that these offences were not dealt with summarily without the offender’s consent; and
- that the judge is satisfied, having considered the prospects of the offender’s reformation or the prevention of crime, that it is expedient to imprison the offender for a substantial time.239
4.110 Once an offender has been pronounced a habitual criminal, he or she must be sentenced to a term of imprisonment of at least five and not more than fourteen years in length.240 The offender should first be sentenced according to the crime of which he or she has been convicted, followed by the pronouncement that the offender is a habitual criminal, and the appropriate sentence imposed on that pronouncement.241
4.111 Section 6(2) of the Habitual Criminals Act 1957 (NSW) provides that any sentence being served by the offender at the time he or she is pronounced a habitual offender is to be served concurrently with the sentence imposed under the Habitual Criminals Act. The two sentences, however, are separate and distinct. On appeal against pronouncement as an habitual criminal there is no power to review the sentence for the offence.242
4.112 Under corresponding South Australian provisions, offenders convicted of two or more violent offences (or three or more offences, in the case of specified property offences) may be declared habitual criminals.243 The significant difference between the New South Wales and South Australian legislation is that offenders declared habitual criminals under the latter are liable to be detained in custody “until further order.”
4.113 Many submissions to the Attorney General’s Sentencing Review favoured the abolition of the Habitual Criminals Act. Notably, the Office of the Director of Public Prosecutions was in favour of the repeal of extended sentence provisions.244 Given the fact that such provisions have fallen into disuse, the DPP’s view is very significant. The discretion vested in the DPP is relevant to the decision to prosecute, and the provisions under which the alleged offender will be charged. The DPP’s view of the value of such provisions is likely to influence the choice of legislation under which offences are prosecuted.
4.114 The Australian Law Reform Commission recommended the repeal of the corresponding provisions in s 17 of the Commonwealth Crimes Act 1914.245 The Australian Law Reform Commission was of the view that the provisions were based upon preventative detention; inconsistent with the objective of promoting just punishments; and in contravention of the International Covenant of Civil and Political Rights.246 Section 17 was repealed in 1990.247
Additional sentences upon second or third convictions
4.115 Section 443 of the Crimes Act 1900 (NSW) allows a sentencing judge to impose an additional sentence upon convicted offenders who have been previously convicted of one or more indictable offences. The quantum of the potential additional punishment varies according to the nature of the instant offence of which the offender has been convicted, and the number of previous convictions of the offender. If the offender is convicted of a felony, then in the case of one previous conviction or sentence, he or she is liable to an additional period of between two and ten years imprisonment. In the case of two or more previous convictions or sentences, he or she is liable to an additional period of between three and fourteen years imprisonment.248
4.116 Where the instant offence is a misdemeanour, the offender is liable to serve an additional punishment of between six and eighteen months imprisonment.249 The additional penalty may be imposed only where the presiding judge is of the opinion that the maximum punishment provided for an offence is insufficient in the circumstances.250
4.117 Section 114 of the Crimes Act 1900 (NSW) sets out the offence of being armed, possessing implements to commit certain property offences, being disguised with intent to commit a felony or misdemeanour, or entering or remaining on property with intent to commit a felony or misdemeanour. It is followed by s 115 which provides:
Whosoever, having been convicted of any felony or misdemeanour, afterwards commits any offence mentioned in section 114, shall be liable to penal servitude for ten years.
The relevant procedural requirements of s 443 and s 115 are significantly different. While the former provision provides for additional punishment, s 115 provides for an additional offence - not merely a higher statutory maximum penalty.251 The ramification of this distinction is that proceedings commenced under s 115 require the prosecution to prove afresh the commission of the offence provided for by s 114 (of which the accused has already been found guilty).
The Commission’s view
4.118 The Attorney General’s Sentencing Review pointed out that the provisions for extending sentences are very rarely used, and that previous criminality is a factor already taken into account when a judicial officer fixes the sentence for the instant offence.252 Consultation with the Department of Corrective Services revealed that the Habitual Criminals Act 1957 had not been used since the 1970s, and that s 115 and 443 of the Crimes Act 1900 “appear[ed] equally unused.”253 However, the 1991 decision of the Court of Criminal Appeal in Tillott254 indicates that use of s 115 has not fallen completely into disuse. But the construction placed on s 115 in that decision would appear to be a disincentive for the prosecution to rely upon that provision.
4.119 The fact that these provisions have fallen into disuse might also be the basis for a suggestion for the introduction of a new form of habitual offenders legislation. A submission was made to the Attorney General’s Sentencing Review that habitual criminals legislation should be retained, but with a narrower scope, applying only to offenders with histories of violent crimes.255 The Commission can find no argument in support of this submission. The twin stated aims of habitual offenders legislation are rehabilitation and crime prevention or community protection. The pursuit of these objectives extend the offender’s sentence beyond its proportion to the instant offence. Given its centrality as a sentencing principle,256 the Commission is of the view that here (as elsewhere)257 a justification must be found for any departure from it. That justification has not been made out in the case of habitual offenders legislation. The Commission’s tentative view is, therefore, that such legislation should be repealed.
Preventive detention
4.120 The Community Protection Act 1994 (NSW) was enacted with the express intention of protecting the community by providing for the preventive detention of one Gregory Wayne Kable.258 It was originally intended that the Act be expressed in general terms to allow the Supreme Court, where satisfied that certain specified criteria had been met, to make a preventive detention order, interim detention order, or issue an arrest warrant. The Bill was passed in its current restricted form following parliamentary and community criticism of the proposals.259 Although it now applies only to one person, the Act warrants consideration because its provisions could be extended to the more general application which was first considered in 1994.
4.121 The main provisions of the Act are set out in s 5 which provides:
Applications are made under the Act by the Director of Public Prosecutions.260 The Supreme Court can only make a detention order when it is satisfied that the DPP’s case has been proved on the balance of probabilities.261
Arguments in favour of the legislation
4.122 It is claimed by some that there is a gap in the protection which the criminal law affords, in that it provides for punishment of those convicted of violent offences but, generally, does not provide for the prevention of violent acts. This was the argument put forward by the then Attorney General in his second reading speech for the Community Protection Bill 1994 (NSW)262 He also stated that the government would not “shirk” the responsibility of protecting the community from persons who present a real danger. The answer to such a claim is that the criminal justice system simply cannot provide a perfect guarantee against crime.
4.123 Justice Deane has also acknowledged the need for preventive detention to be available at the expiration of terms of some who have been convicted for violent offences:
[T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.263
This proposal does not encompass some aspects of the New South Wales legislation, in particular the provision which does not require the commission of an offence or the previous detention of the subject.
Arguments against the legislation
4.124 There have been numerous challenges to the constitutionality of the provisions of the Act.264 Although no such challenge has been successful to date,265 it can be argued that it is a fundamental principle of a democratic society that, save for carefully defined exceptions relating to the law of bail, contempt, mental illness and migration, citizens shall not be imprisoned unless they have been convicted of a criminal offence following the finding of a tribunal of fact, beyond reasonable doubt. A law which authorises preventive detention of an individual who has not been so convicted (and who does not come within other well-defined exceptions) constitutes an infringement of a fundamental human right. Three members of the Court of Appeal have expressed misgivings concerning the use of preventive detention. Justice Clarke said:
A preventive detention order which enables the imprisonment of a person who has not been convicted of a crime ... prima facie, constitutes an infringement of a fundamental human right.266
4.125 Article 9.1 of the International Covenant on Civil and Political Rights deals with detention:267
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
It seems, however, that the provisions of the Community Protection Act 1994 (NSW) are consistent with this article, as they are with other articles.268 Justice Mahoney, while expressing misgivings about such provisions, stated:
If such provisions are to be enacted, the circumstances in which a person may be detained should be clearly stated, should be capable of clear proof or disproof, should be independently administered, and should be capable of ongoing appeal and review.
But, in my opinion, it is proper to accept that there are circumstances in which such legislation may be justified. There is no breach of human rights if the circumstances warrant such an enactment.269
4.126 Other arguments against the Act include the insufficiency of balance of probabilities as the standard of proof in relation to the deprivation of liberty, and the serious practical problems involved in relying on the prediction of future violent behaviour.270 Notwithstanding the safeguards included in the Act as it currently stands, it can be said that the provisions could still be open to abuse.271 The Commission is tentatively of the view that the Community Protection Act 1994 (NSW) should be repealed.
NOMENCLATURE
4.127 Sections 9 and 10 of the Crimes Act 1900 (NSW) provide that a “felony” is an offence punishable by penal servitude, while a misdemeanour is punishable by imprisonment. While gaoled offenders are liable to be sentenced to either “penal servitude” or “imprisonment”, there is no longer any practical difference between the two types of sentence. Accordingly, there no longer appears to be any rational basis for maintaining these distinctions.
4.128 The Department of Corrective Services has submitted that the distinction between penal servitude and imprisonment be abolished.272 The Attorney General’s Sentencing Review also proposed abolition of this distinction, as well as the distinction between felonies and misdemeanours.273 However, the Review also referred to the fact that some offences under the Crimes Act 1900274 have as one of their elements the commission of (or intent to commit) a felony. Such offences - if they retained this element - could be amended so that the offence is established where a crime carrying a maximum penalty of a certain number of years was committed. Consideration will also have to be given to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) under which a person convicted of a felony who is still in custody requires the leave of the court to institute civil proceedings. If the substance of this provision is to be retained, it will require redrafting. Alternatively, it could be repealed if it is thought that convicted persons should have access to the courts as of right.275
4.129 Both the Sentencing Review and the Department of Corrective Services argued for the abolition of the distinction between “hard labour” and “light labour”.276 The main provision supporting this distinction is s 554 of the Crimes Act 1900. Again, no practical distinction exists between the two, and the Department of Corrective Services has the authority under the Prisons Act to determine the classification of prisoners.
4.130 The Commission tentatively agrees with the submissions which have been made to abolish these outdated distinctions. We particularly invite submissions on whether there are any consequences resulting from abolition which we may have overlooked.
QUESTIONS ARISING IN CHAPTER 4
1. Should earned remissions be re-introduced into the imprisonment regime in New South Wales? If yes, how should such a re-introduction apply to prisoners currently serving sentences? If no, should the legislation nevertheless now provide that the abolition of remissions is to be taken into account in determining sentences?
2. Should s 5(2) and (3) of the Sentencing Act 1989 (NSW) be repealed? If so, should anything be put in their place?
3. Should courts be required to impose a single sentence (composing one minimum term and one additional term) which accounts for all offences of which the offender has been found guilty?
4. Should there be a general legislative presumption in favour of concurrent sentences?
5. Should there be statutory recognition of partly cumulative sentences?
6. Should s 9(3) of the Sentencing Act 1989 be amended to allow cumulative sentences to be imposed during the currency of an existing term of imprisonment?
7. Should s 9(3) be amended to apply to fixed terms being served by the prisoner?
8. Should the provisions dealing with multiple sentences incorporate the effect of the provisions in s 26B and 34(2) of the Prisons Act 1952 (NSW) and in s 447A of the Crimes Act 1900 (NSW)?
9. Should the exception provided by s 444(5) of the Crimes Act 1900 (NSW) be amended to include any offence committed by a prisoner?
10. Should offenders retain the automatic right to parole (without consideration by the Offenders Review Board) where they are serving a sentence of more than three years and receive a cumulative sentence of less than three years such that the original sentence expires before completion of the minimum term of the cumulative sentence?
11. Should provision ever be made for mandatory life sentences? If so, in what types of cases?
12. Should s 13A(9)(a) and (d) of the Sentencing Act 1989 be repealed?
13. Should judges have the discretion to impose a minimum term of imprisonment with an additional term of life at the initial sentencing hearing?
14. Should s 13A(5) of the Sentencing Act be redrafted according to the comments made in Purdey?
15. Should s 13A(8)-(8C) of the Sentencing Act 1989 (NSW) be modified or repealed?
16. Should legislation providing for indefinite sentences be introduced in New South Wales? If so, what form should it take?
17. Should habitual criminals legislation be repealed? If not, what is the rationale for its continued existence?
18. Should the Community Protection Act 1994 be repealed?
19. Should there continue to be distinctions between “penal servitude” and “imprisonment”, between “felonies” and “misdemeanours”, and between “hard labour” and “light labour.” If not, should all these expressions, except “imprisonment,” be no longer used?
FOOTNOTES
1. New South Wales Bureau of Crime Statistics and Research, Criminal Courts Statistics 1994 (BCSR, 1995) at Tables 1.6, 4.7.
2. New South Wales Bureau of Crime Statistics and Research, Key Trends in Criminal Justice - 1994 (BCSR, 1995) at 38.
3. In 1993, 15,866 persons were held in prisons across the country, 7,632 (48%) of whom were held in New South Wales: see S Mukherjee and D Dagger, Australian Prisoners 1993 (Australian Institute of Criminology, Canberra, September 1995) at 19. The national rate of imprisonment of 86.2 per 100,000 population is significantly lower than the New South Wales rate of 105 per 100,000. Western Australia (121.7 per 100,000) and the Northern Territory (286.1 per 100,000) also had rates significantly higher than the national rate. South Australia has approximately the national rate, while Queensland (75.6 per 100,000), Tasmania (51.8 per 100,000), the Australian Capital Territory (31.4 per 100,000) and Victoria (54.3 per 100,000) all had rates significantly lower than the national figure: see Australian Institute of Criminology, Australian Prison Trends (No 215, April 1994) at Table 2.
4. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? Crime and Justice Bulletin No 23 (NSW Bureau of Crime Statistics and Research, 1995) at 1.
5. Imprisonment Rates in NSW and Victoria: Explaining the Difference Crime and Justice Bulletin No 14 (NSW Bureau of Crime Statistics and Research, 1992).
6. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? at 23.
7. Imprisonment Rates in NSW Wales and Victoria at 5; Why Does NSW Have a Higher Imprisonment Rate Than Victoria? at 2.
8. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? at 2, 4. Likewise, the rate of imprisonment in the Northern Territory may, at least partially, be attributable to higher rates of serious violence (especially murder) in the Territory than in New South Wales.
9. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? at 2.
10. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? at 4.
11. See para 2.24.
12. See paras 4.35.
13. Why Does NSW Have a Higher Imprisonment Rate Than Victoria? also draws attention to the need for this research.
14. The discussion of remissions and parole in this section is drawn largely from the decision of the Court of Criminal Appeal in R v Maclay (1990) 19 NSWLR 112 at 115-121. See also D Weatherburn, “Appellate Review, Judicial Discretion and the Determination of Minimum Periods” (1985) 18 ANZ Journal of Criminology 272.
15. Maclay at 116.
16. Maclay at 116.
17. Power v The Queen (1974) 131 CLR 623 at 627.
18. Maclay at 117-118.
19. As recommended by the Muir Report: New South Wales, Report of the Committee Appointed to Review the Parole of Prisoners Act 1966 (Government Printer, Sydney, 1979).
20. Maclay at 119. See also the decision in R v Yates [1985] VR 41 at 47 (CCA).
21. R v Paivinen (1985) 158 CLR 489; Hoare v The Queen (1989) 167 CLR 348; R v O’Brien [1984] 2 NSWLR 112.
22. Some statistical information suggests that sentencers tended to increase the length of non-parole periods to offset the perceived effect of remissions under the Probation and Parole Act 1983. See D Weatherburn, “Appellate Review, Judicial Discretion, and the Determination of Minimum Periods” (1985) 18 Australia and New Zealand Journal of Criminology 272 at 280.
23. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at paras 69-71.
24. P Grabowski and P Wilson, Journalism and Justice: How Crime is Reported (Pluto Press, 1989) at Chapter 5; G Zdenkowski, “Sentencing: Problems and Responsibility” in D Chappell and P R Wilson (eds), The Australian Criminal Justice System: The Mid 1980s (Butterworths, Sydney, 1986) at 227-228.
25. See J Chan, Doing Less Time: Penal Reform in Crisis (Institute of Criminology, Monograph Series No 2, Sydney, 1992).
26. See Chapters 9-10.
27. Sentencing Act 1989 (NSW) s 13.
28. Sentencing Act 1989 (NSW) s 13(d).
29. Sentencing Act 1989 (NSW) Sch 3 cl 8 (repealing Prisons Act 1952 Pt 11).
30. In some American writings the expression is also used to suggest that there must be a high ratio (eg 85%) between the minimum and additional terms.
31. Probation and Parole Act 1983 (NSW) s 26.
32. Sentencing Act 1989 (NSW) s 17.
33. Sentencing Act 1989 s 7.
34. In contrast, the Australian Law Reform Commission recommended that all prisoners should be eligible for parole, including those imprisoned for short periods: see Sentencing (ALRC 44, 1988) at paras 79-80.
35. R v GDR (1994) 35 NSWLR 376 (CCA).
36. Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525 at 536-538; R v Maclay (1990) 19 NSWLR 126; R v Grmusa [1991] 2 VR 153 at 158; R v Longshaw (1993) 114 FLR 423 at 426-428. See also D Weatherburn, “Sentencing Principles and Sentence Choice” in M Findlay and R Hogg (eds), Understanding Crime and Criminal Justice (Law Book Co, Sydney, 1988) at 263.
37. Bugmy at 537 (risk of reoffending and interests of community protection).
38. Bugmy.
39. R v Radford (NSW CCA, CCA 60706/90, 21 August 1991, unreported); R v Close (1992) 31 NSWLR 743 at 749, 758; R v Gower (1991) 56 A Crim R 115 at 118; R v Morgan (1993) 70 A Crim R 368 at 372.
40. Especially R v Maclay (1990) 19 NSWLR 112 at 126.
41. R v Moffitt (1990) 20 NSWLR 114, 118, 121, 125; R v Gower (1991) 56 A Crim R 115 at 118 at 118-119 per Priestley JA.
42. R v Morgan (1993) 70 A Crim R 368 at 377 per Allen J.
43. Sentencing Act 1989 s 5(1).
44. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 10 May 1989 at 7906. See also P Hidden, “The Sentencing Act: An Historical Overview” (1992) 3 Current Issues in Criminal Justice 287 at 291; M Campbell, “Changing Horses” (1992) 3 Current Issues in Criminal Justice 298 at 300-301.
45. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 10 May 1989 at 7906.
46. Justice Dunford, Submission (7 August 1995) at 1-2.
47. See also R v Maclay (1990) 19 NSWLR 112 at 122.
48. But see para 4.35.
49. See paras 4.24-4.41.
50. I McKinnell, D Spears and R Takach, “Special Circumstances” Under the Sentencing Act 1989 (NSW) (Judicial Commission of New South Wales, Monograph Series No 7, Sydney, 1993) at 4.
51. McKinell, Spears and Takach at 8.
52. Brindley v The Queen (1993) 66 A Crim R 204 at 207.
53. R v Astill (No 2) (1992) 64 A Crim R 289.
54. R v Phelan (1993) 66 A Crim R 446.
55. Phelan at 449 per Hunt CJ at CL.
56. Moffitt at 116 per Samuels JA.
57. Moffitt at 116. This contrasts with the interpretation of s 20A of the (now repealed) Probation and Parole Act 1983, which also required that the period during which the offender was eligible for parole was restricted to one third of the non-parole period. In Griffiths v The Queen (1989) 167 CLR 372 the High Court held that departure from the formula of s 20A was justified only in special or exceptional circumstances. However, as s 20A was directed only toward a statutorily defined group of “serious offenders”, the provision was punitive in nature. Moffitt held that the same considerations do not apply under the Sentencing Act 1989. See also R v Simpson (1992) 61 A Crim R 58 at 60 per Hunt CJ at CL.
58. Moffitt at 118 per Samuels JA, at 134 per Badgery-Parker J.
59. R v Phelan at 449-450.
60. Moffitt at 117 per Samuels JA, at 121 per Wood J.
61. Close at 748 per Hunt CJ at CL.
62. R v Simpson (1992) 61 A Crim R 58; R v Pollock (1993) 67 A Crim R 166; R v Close at 748-749 per Hunt CJ at CL.
63. R v Hunter (NSW CCA, No 60056/91, 12 August 1992, unreported); R v Wotherspoon (NSW CCA, No 60558/92, 4 December 1992, unreported).
64. R v Astill (No 2) (1992) 64 A Crim R 289.
65. R v Fernando (1992) 76 A Crim R 58. For a detailed coverage of factors which have been accepted as special circumstances, see the Appendix to E Matka, NSW Sentencing Act 1989 (NSW Bureau of Crime Statistics and Research, 1990).
66. I McKinnell, D Spears and R Takach, “Special Circumstances” Under the Sentencing Act 1989 (NSW) (Judicial Commission of New South Wales, Monograph Series No 7, Sydney, 1993) at 5.
67. McKinnell, Spears and Takach at 5.
68. McKinnell, Spears and Takach at 6.
69. McKinnell, Spears and Takach at 6.
70. McKinnell, Spears and Takach at 7.
71. McKinnell, Spears and Takach at 7.
72. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at xxxi.
73. ALRC 44 at xxxi.
74. ALRC 44 at para 84.
75. Sentencing Act 1995 (NT) s 54. At least 70% of the head sentence must be served where the offender has been convicted of sexual assault: s 55.
76. Sentencing Act 1995 (WA) s 94.
77. See McKinnell, Spears and Takach at 14.
78. Close at 745 per Sheller JA, at 752 per Hunt CJ at CL.
79. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 10 May 1989 at 7907.
80. R v Maclay (1990) 19 NSWLR 112 at 122-124.
81. Maclay at 122.
82. Maclay at 126 (pointing out that patterns under previous legislation may have been influenced by a “fictional element”).
83. See R v Corbett (1991) 52 A Crim R 112 at 115-117 (NSW CCA).
84. A Gorta and S Eyland, Truth in Sentencing: Impact of the Sentencing Act 1989 (Department of Corrective Services, Research Publication No 22, June 1990).
85. Gorta and Eyland at 11. This comparison is made on the basis that, since the abolition of remissions, the minimum or fixed terms will reflect the time served in prison reasonably accurately. Subsequent empirical surveys, dealing with the length of minimum or fixed terms handed down both before and after the legislation have shown varying results within the court hierarchy and are inconclusive: see E Matka, NSW Sentencing Act 1989 (New South Wales Bureau of Crime Statistics and Research, Legislative Evaluation Series, 1991); M Cain and V Roby, “The Impact of Truth in Sentencing: Part 1 - The Higher Courts” (Judicial Commission of New South Wales, Sentencing Trends No 2, March 1992); M Cain and V Roby, “The Impact of Truth in Sentencing: Part 2 - The Local Courts” (Judicial Commission of New South Wales, Sentencing Trends No 3, June 1992). The Judicial Commission has also conducted a study of the impact of the legislation upon juvenile offenders: M Cain and G Luke, Sentencing Juvenile Offenders and the Sentencing Act 1989 (NSW): The Impact of Legislative and Administrative Change in the Children’s Court 1982-1990 (Judicial Commission of New South Wales, Monograph Series No 4, December 1991); New South Wales Bureau of Crime Statistics and Research, Key Trends in Criminal Justice - 1994 (BCSR, 1995) at 7-11.
86. Gorta and Eyland at 13. If prisoners are detained for the aggregate term (ie including the additional term) this would represent an increase of 831 sentenced prisoners held on any one day.
87. Gorta and Eyland at 10.
88. See generally J Chan, “The New South Wales Sentencing Act 1989: Where Does Truth Lie” (1990) 14 Criminal Law Journal 249; D Brown, “Battles Around Truth: A Commentary on the Sentencing Act 1989” (1992) 3 Current Issues in Criminal Justice 329; D Brown, “What Truth?” (1989) 14 Legal Services Bulletin 161; G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1990s (Butterworths, Sydney, 1994) at 203-209. See also A Freiberg, “Truth in Sentencing?: The Abolition of Remissions in Victoria” (1992) 16 Criminal Law Journal 165.
89. Sentencing Act 1991 (Vic) s 10; Crimes Act 1914 (Cth) s 19AA. A monitoring study of the effect of the Victorian legislation found that minimum periods of imprisonment remained relatively stable after s 10: 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 76-78. See also Crimes Act 1900 (ACT) s 454, which provides that the absence of remissions in the State in which the offender will serve the sentence must be taken into account when imposing the sentence. The most recent abolition of remissions occurred in 1995 in the Northern Territory (Prisons (Correctional Services) Amendment Act (No 2) 1994 s 6). Offenders sentenced to a term of imprisonment of less than twelve months who would otherwise serve a longer sentence are entitled to a shorter sentence: Sentencing Act 1994 (NT) s 58. The section expires in the year 2000: s 58(5).
90. Law Society of New South Wales to the Hon Bob Debus MLA, 27 November 1995.
91. Hon Bob Debus MLA to the Commission, 15 January 1996.
92. Compare Report of the Commission into New South Wales Prisons (NSW Government Printer, Sydney, 1978) (“Nagle Report”) Volume 2 at 463.
93. Uniting Church Board for Social Responsibility, Submission to the Attorney General’s Sentencing Review (27 July 1994); Ministry for the Status and Advancement of Women, Submission to the Attorney General’s Sentencing Review (25 July 1994).
94. Public Defenders Chambers, Submission to the Attorney General’s Sentencing Review (12 August 1994) at 1; Office of the Director of Public Prosecutions, Submission to the Attorney General’s Sentencing Review (27 July 1994) at 1; Legal Aid Commission of New South Wales, Submission to the Attorney General’s Sentencing Review (25 July 1994) at 1.
95. Justice J R Dunford, Submission (7 August 1995) at 1-2.
96. NSW Department of Corrective Services, Submission (4 September 1995) at 21.
97. R v Hawkins (1993) 67 A Crim R 64 at 70 per Hunt CJ at CL (with whom Grove and McInerney JJ agreed).
98. For principles applicable to setting the minimum term, see para 4.19.
99. NSW Department of Corrective Services, Submission (4 September 1995) at 18.
100. NSW Department of Corrective Services, Submission (4 September 1995) at 18-19.
101. Attorney General’s Sentencing Review at 15.
102. Crimes Act 1914 (Cth) s 19AB, 19AD.
103. Sentencing Act 1991 (Vic) s 14. See also Sentencing Act 1995 (NT) s 57.
104. Criminal Procedure Act 1986 (NSW) Part 6, although the Court of Criminal Appeal has held that serious offences should be separately charged (and therefore placed outside the scope of the procedure): R v Morgan (1993) 70 A Crim R 368. Note also “general sentences” in Tasmania: see K Warner, Sentencing in Tasmania (Federation Press, Sydney, 1991) at 194-199.
105. Mr Ivan Potas, Submission to Attorney General’s Sentencing Review (11 August 1994).
106. Public Defenders, Submission to Attorney General’s Sentencing Review (12 August 1994).
107. Bar Association of New South Wales, Submission to Attorney General’s Sentencing Review (2 August 1994).
108. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 66.
109. Crimes Act 1900 (ACT) s 443 (other than sentences imposed for fine default).
110. Sentencing Act 1995 (NT) s 50.
111. Sentencing Act 1991 (Vic) s 16 (other than sentence imposed: for fine default; on a prisoner in respect of a prison offence or an escape offence; on a serious sexual offender for a sexual offence or a violent offence; on any person for a sexual or violent offence when the offender was on parole for a similar offence: s 16(1A)).
112. Penalties and Sentences Act 1992 (Qld) s 154.
113. Sentencing Act 1995 (WA) s l88.
114. Crimes Act 1900 (NSW) s 444(3). See also Sentencing Act 1991 (Vic) s 16(2)-(6). Compare Crimes Act 1900 (NSW) s 442A.
115. CCA NSW, No 60452/92, 2 September 1993, unreported.
116. See Crimes Act 1914 (Cth) s 19.
117. A George LCM, Submission (4 February 1995) (forwarded by I H Pike, Chief Magistrate).
118. R v Andrews (NSW CCA, No 60621/91, 28 April 1993, unreported).
119. R v Blanchard (NSW CCA, No 60420/90, 10 September 1991, unreported).
120. R v Arnold (1993) 30 NSWLR 74.
121. Arnold at 76 per Hunt CJ at CL.
122. Arnold at 74 per Gleeson CJ.
123. Arnold at 85 per Abadee J.
124. Arnold at 75 per Gleeson CJ, at 77 per Hunt CJ at CL.
125. See para 4.42.
126. Department of Corrective Services, Submission at 22.
127. Para 4.52.
128. See Crimes Act 1900 (NSW) s 447A; Prisons Act 1952 (NSW) s 34(2).
129. Prisons Act 1952 (NSW) s 26B(1)(e), (4) and (5).
130. R v Andrews (CCA NSW, No 60621/91, 28 April 1993, unreported).
131. Attorney General’s Sentencing Review at 22.
132. Department of Corrective Services, Submission (18 October 1995).
133. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 26 March 1980 at 5969.
134. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 26 March 1980 at 5969.
135. Attorney General’s Sentencing Review at 24. See also R Dive, Submission (19 July 1995).
136. Sentencing Act 1989 Part 3 Division 2.
137. Attorney General’s Sentencing Review at 22.
138. Nguyen Da Huong and B Thompson quoted in J Nicholson “Resentencing Serious Offenders: A Commentary on the New South Wales Model” (1992) 16 Criminal Law Journal 216 at 217. For a detailed empirical study of the use of life sentences in Australia, see A Freiberg and D Biles, The Meaning of ‘Life’: A Study of Life Sentences in Australia (Australian Institute of Criminology, Canberra, 1975).
139. NSW, Parliamentary Debates (Hansard), Legislative Assembly, 30 November 1989, at 14052, 14054 (Second Reading Speech to the Prisons (Serious Offenders Review Board) Amendment Bill).
140. Sentencing Act 1989 (NSW) s 13(c).
141. Crimes Act 1900 (NSW) s 19A.
142. Drugs Misuse and Trafficking Act 1985 (NSW) s 33A.
143. That is, the date on which the Crimes (Life Sentences) Amendment Act 1989 (NSW) was proclaimed. The introduction of natural life sentences was the subject of considerable controversy: see G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1990s (Butterworths, Sydney, 1994) at 184-187.
144. See Sentencing Act 1989 (NSW) s 53. Compare re-determination of life sentences under s 13A: see 4.78-4.86.
145. Crimes Act 1900 (NSW) s 19A (3); Drug Misuse and Trafficking Act 1985 (NSW) s 33A(2).
146. See Parliament of New South Wales, Legislative Council, Standing Committee on Law and Justice, Report on the Crimes Amendment (Mandatory Life Sentences) Bill 1995 (Report No 1, November 1995) at 15.
147. See para 3.42.
148. R v Twala (Court of Criminal Appeal, NSW, 4 November 1994, No 60187/93, unreported).
149. Veen v R (No 2) (1988) 164 CLR 465 at 478; Twala at 2.
150. Twala at 7.
151. Twala at 7.
152. G Zdendowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson (eds) The Australian Criminal Justice System: The Mid 1990s (Butterworths, Sydney, 1994) at 184.
153. Crimes Act 1900 (NSW) s 19, which was replaced by s 19A considered in para 4.67. See Zdenkowski (1994) at 184.
154. The High Court has held by majority (Gibbs CJ, Murphy and Aickin JJ, Wilson and Brennan JJ dissenting) that very clear words are required before a sentence of life imprisonment would be considered a mandatory punishment: Sillery v The Queen (1981) 35 ALR 227. Murphy J suggested, obiter, that Parliament may not be competent to pass such a law (at 234).
155. For a detailed account of arguments against the Bill, see Parliament of New South Wales, Legislative Council, Standing Committee on Law and Justice, Report on the Crimes Amendment (Mandatory Life Sentences) Bill 1995 (Report No 1, November 1995) at 43-52.
156. R v Garforth (NSW CCA, No 60500/93, 23 May 1994, unreported) at 13.
157. See G Zdenkowski, Submission to the Legislative Council’s Standing Committee on Law and Justice’s Inquiry into the Crimes Amendment (Mandatory Life Sentences) Bill 1995, 6 November 1995, at 7-8, reproduced in Appendix 3 of the Committee’s Report.
158. Proposed s 431B(2) Crimes Act 1900 (NSW).
159. Proposed s 431B(2)(4).
160. See paras 6.46-6.50.
161. Legislative Council, Standing Committee on Law and Justice, Report on the Crimes Amendment (Mandatory Life Sentences) Bill 1995 at 46-47.
162. D Spears and I MacKinnell, “Sentencing Homicide: The Effect of Legislative Changes on the Penalty for Murder” (Sentencing Trends No 7, Judicial Commission of New South Wales, June 1994) at 3, 4.
163. Article 37(a) provides that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age”. See Law Society of New South Wales, Submission (21 November 1995).
164. Sentencing Act 1989 (NSW) s 13A(3).
165. Sentencing Act 1989 (NSW) s 13A(6).
166. Sentencing Act 1989 (NSW) s 13A(5).
167. Since 12 January 1990 there are only natural life sentences: see para 4.67.
168. Data provided by the Office of the Director of Public Prosecutions, 3 November 1995.
169. Re Purdey (1992) 65 A Crim R 441; R v Crump (NSW CCA, No 60080/93, 30 May 1994, unreported) at 51 per Allen J.
170. Crump at 51 per Allen J
171. One NSW Public Defender has suggested that the advantages of this should be generalised by providing that all offenders who would receive a minimum term of five years or more should be re-sentenced after serving five years in gaol of an indeterminate sentence. At the re-sentence hearing, the judge would set a determinate sentence of a minimum and additional term, along the lines currently applying for life sentence prisoners under s 13A of the Sentencing Act 1989. The purpose of the suggested reform is twofold: first, to allow the trial judge to evaluate objectively the progress of all serious offenders towards rehabilitation; and secondly, to provide a substantial incentive to the prisoner to reform: see J Nicholson “Resentencing Serious Offenders: A Commentary on the New South Wales Model” (1992) 16 Criminal Law Journal 216 at 222.
172. Re Purdey (1992) 65 A Crim R 441 at 444, per Hunt CJ at CL; Crump at 9 per Hunt CJ at CL.
173. Crump at 24.
174. Crump, at 23-24 per Allen J.
175. NSW CCA, No 60080/93, 30 May 1994, unreported (leave to appeal to the High Court refused: (1995) 129 ALR 719; 69 ALJR 570).
176. For a determinate sentence of this type, see R v Rees (NSW CCA, No 60565/93, 22 September 1995, unreported).
177. Justice J R Dunford, Submission (7 August 1995) at 2.
178. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 84.
179. See G Zdenkowski, “Contemporary Sentencing Issues” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1990s (Butterworths, Sydney, 1994) at 185-186.
180. See Proposal 4.
181. Currently, sentences under s 19A of the Crimes Act 1900 (NSW) and s 33A of the Drug Misuse and Trafficking Act 1985 (NSW).
182. Re Purdey (1992) 65 A Crim R 441 at 446, per Hunt CJ at CL.
183. Re Purdey at 446.
184. Sentencing Act 1989 (NSW) s 13A(8C).
185. Sentencing Act 1989 (NSW) s 13A(8A). To date, no prisoner has been directed never to re-apply under s 13A for a determinate sentence.
186. Sentencing Act 1989 (NSW) s 13A(8B). Only 6 of the 162 applications for a determinate sentence have been refused by the Supreme Court: data provided by the Office of the Director of Public Prosecutions (3 November 1995). All of the failed applications were filed prior to 21 November 1993, the date on which the amendments inserting subsections (8A)-(8C) came into effect. Accordingly, all six prisoners may make a second application two years from the date of the initial refusal.
187. Associate Professor David Brown, Submission (13 September 1995) at 2. See also G Zdenkowski, “Door Slams Shut on Lifers” The Bulletin 23 November, 1993, at 22; T Anderson “Victims’ Rights or Human Rights?” (1995) 6 Current Issues in Criminal Justice 335.
188. Anderson at 342.
189. Just as they had no “right” to remissions: see R v Maclay (1990) 19 NSWLR 112.
190. See G Zdenkowski, “Retrospective Punishment in NSW” (1994) 3(1) Human Rights Defender 5 at 10.
191. Sentencing Act 1989 (NSW) s 53.
192. See paras 3.18-3.20.
193. Chester v The Queen (1988) 165 CLR 611 at 618 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ. See further paras 3.35-3.37.
194. Strictly speaking, the last mentioned are not sentences but involve imprisonment of individuals (who have not committed an offence) on the basis of predictions about their potential violent behaviour. The Community Protection Act 1994 (NSW) which authorises such detention of a named individual is discussed in paras 4.120-4.126.
195. Habitual Criminals Act 1957 (NSW). See paras 4.109-4.111.
196. Criminal Law (Sentencing) Act 1988 s 22.
197. Indefinite prison sentences should be distinguished from the “normal” custodial sentence in which the minimum term is often indeterminate in the sense that release is not automatic at the end of the minimum term. The effluxion of this period often (as in NSW under the terms of the Sentencing Act 1989) leads to an eligibility date for release to parole by the relevant authority.
198. See Criminal Law Sentencing Act 1988 (SA) s 22-23; Penalties and Sentences Act 1992 (Qld) Part 10; Sentencing Act 1991 (Vic) s 18A-18P; Sentencing Act 1995 (NT) s 65-78; Sentencing Act 1995 (WA) s 98-101.
199. Distinguish additional fixed sentences imposed on habitual offenders in NSW (see paras 4.109-4.119) and preventive detention orders imposed pursuant to the Community Protection Act 1994 (see paras 4.120-4.126).
200. For example, Criminal Code 1913 (WA) s 662(a), repealed by Sentencing (Consequential Provisions) Act 1995 (WA).
201. Sentencing Act 1991 (Vic) s l8A-18P; Penalties and Sentences Act 1992 (Qld) Pt 10; Sentencing Act 1995 (NT) s 65-78; Sentencing Act 1995 (WA) s 98-101.
202. Social Welfare Act 1970 (Vic) s 192.
203. For a detailed critique see R Fox, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394.
204. Penalties and Sentences Act 1992 (Qld) Part 10.
205. As defined in Sentencing Act 1991 (Vic) s 3. Fox (1993) at 407 notes that over 50 crimes varying greatly in gravity are covered by this definition.
206. Sentencing Act 1991 (Vic) s 18A.
207. Section 18A(2).
208. Section 18A(3).
209. That is, on the Briginshaw test located between the ordinary civil standard of proof on the balance of probabilities and the criminal standard, beyond reasonable doubt.
210. Section 18B(1).
211. Section 18B(2).
212. Section 18G.
213. Section 18H(a).
214. Section 18H(b).
215. Sections 181, 18J and 18K.
216. Section 18M(1).
217. Vic CA, 19 December 1995, Charles JA, Crockett AJA and Southwell AJA, unreported.
218. In the first, and to date only, application for an indefinite sentence made under the equivalent Queensland legislation, Penalties and Sentences Act 1992 (Qld) Part 10, the District Court in Cairns declined to order an indefinite sentence: R v Eather (District Court Qld, 26 October 1993, Daly DCJ, unreported). The prisoner had pleaded guilty to five charges of carnal knowledge by anal intercourse and three of indecent assault involving three boys all two years of age. For further discussion and an extensive critical review of this legislation generally, see J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312.
219. See D Wood, “Dangerous Offenders and Civil Detention” (1989) 13 Criminal Law Journal 324; J Floud and W Young, Dangerousness and Criminal Justice (Heinemann, London, 1981) at 180.
220. Floud and Young at 10.
221. James Q Wilson, “Selective Incapacitation” in A von Hirsch and A Ashworth (eds), Principled Sentencing (Northeastern University Press, Boston, 1992).
222. For example, Norval Morris, “Incapacitation with Limits” in von Hirsch and Ashworth (1992). Arguably, current legislation in Australia does not meet the requirements on which Morris insists.
223. See paras 3.35-3.37.
224. Chester v The Queen (1988) 165 CLR 611 at 619.
225. Parke and Mason at 330.
226. Jean Floud, the principal author of the so-called Floud Report: J Floud and W Young, Dangerousness and Criminal Justice (Heinemann, London, 1981).
227. See von Hirsch and Ashworth (1992) at 104.
228. Parke and Mason at 322.
229. In Sillery v The Queen (1981) 55 ALJR 509 at 513, Murphy J, obiter dicta, questioned the constitutional competence of the Commonwealth Parliament to pass legislation having such an effect.
230. This procedure came into force in Australia on 25 December 1991. The provisions of the ICCPR which might be the subject of such a petition include: Art 7 which prohibits “cruel, inhuman and degrading treatment or punishment” and Art 10.3 which states that the key aim of penal systems is the “reformation and social rehabilitation” of offenders. For further discussion, see R Fox, “Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394 at 410-411.
231. Penalties and Sentences Act 1992 (Qld) s 163(4)(d).
232. Parliament of Victoria, Social Development Committee, Inquiry into Mental Disturbance and Community Safety: Third Report: Response to the Draft Community Protection (Violent Offenders) Bill (Government Printer, Melbourne, 1992) at 30-38.
233. Parke and Mason at 330.
234. Fox (1993) at 412.
235. Fox (1993) at 412.
236. Fox (1993) at 412-413.
237. Fox (1993) at 413.
238. Parke and Mason at 328.
239. Habitual Criminals Act 1957 (NSW) s 4.
240. Habitual Criminals Act 1957 (NSW) s 6(1)
241. R v Roberts [1961] NSWR 681; (1959) 78 WN (NSW) 329.
242. Roberts per Street CJ and Herron J.
243. Criminal Law (Sentencing) Act 1988 (SA) s 22.
244. Office of the Director of Public Prosecutions (NSW), Submission to the Attorney General’s Sentencing Review (27 July 1994).
245. Australian Law Reform Commission Sentencing (ALRC 44, 1991) at para 230.
246. ALRC 44 at para 230.
247. Crimes Legislation Amendment (No 2) 1990 (Cth) s 6.
248. Crimes Act 1900 (NSW) s 443(1).
249. Crimes Act 1900 (NSW) s 443(2).
250. R v McIvor (1933) 50 WN (NSW) 57.
251. R v Tillott (1991) 53 A Crim R 46 at 54.
252. Attorney General’s Sentencing Review at 11.
253. Attorney General’s Sentencing Review at 11.
254. (1991) 53 A Crim R 46.
255. Attorney General’s Sentencing Review at 12.
256. See paras 3.35-3.37.
257. See para 4.97.
258. Community Protection Act 1994 (NSW) s 3.
259. In 1992 the Victorian government proposed making a similar act, the Community Protection Act 1990 (Vic) (which also applied against a specified individual, Gary David) generally applicable but, owing to a highly critical report on the proposed law by the Social Development Committee of the Victorian Parliament, the bill did not proceed: see Victorian Parliament, Social Development Committee, Inquiry into Mental Disturbance and Community Safety: Third Report: Response to the Draft Community Protection (Violent Offenders) Bill (April 1992). The original Act lapsed in April 1994.
260. Community Protection Act 1994 (NSW) s 8.
261. Community Protection Act 1994 (NSW) s 15.
262. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 October 1994 at 4790.
263. Veen v R (No 2) (1988) 164 CLR 465 at 495.
264. DPP v Kable (1994) 75 A Crim R 428; DPP v Gregory Wayne Kable (NSW SC, No 13152/94, 30 December 1994, Hunter J, unreported); Gregory Wayne Kable v DPP (NSW SC, No 13152/94, 23 February 1995, Levine J, unreported); Kable v DPP (1995) 36 NSWLR 374.
265. The High Court heard argument in the matter in December 1995 following the granting of special leave to appeal: Gregory Wayne Kable v The Director of Public Prosecutions of New South Wales (High Court of Australia, 18 August 1995, Dawson, Toohey and McHugh JJ, unreported). Judgment is currently reserved in the matter.
266. Gregory Wayne Kable v DPP (1995) 36 NSWLR 374 at 395.
267. Compare the European Convention on Human Rights Article 5.1 of which expressly recognises the possibility of preventive detention in some form: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.
268. For example: Article 8.2 (against servitude); Article 9.3 (right to prompt trial); Article 14.2 (presumption of innocence with respect to criminal charges); Article 14.7 (against double jeopardy)
269. Kable v DPP (1995) 36 NSWLR 374 at 379.
270. See para 4.106. Strictly, the principle of proportionality is inapplicable since a sentence is not in issue.
271. See the points raised by Justice Mahoney in Kable v DPP (1995) 36 NSWLR 374 at 378-379.
272. New South Wales, Department of Corrective Services, Submission (4 September 1995) at 24.
273. Attorney General’s Sentencing Review at 9-10.
274. See s 106, 107, 109, 111-114.
275. See Australian Law Reform Commission, Sentencing: Prisons (DP 31, 1987) at paras 133-138.
276. Attorney-General’s Sentencing Review at 10; Department of Corrective Services, Submission at 24.
