3. A more direct role for juries in sentencing?

Updates and background for this project (Digest)

• Introduction
• Public perceptions and sentencing
• Jury involvement in sentencing
• Means of involving the jury
• Logistical questions
• Issues for discussion

3.1 The Chief Justice observed in the opening of the Law Term Dinner Speech, that public confidence in the administration of justice is one of the matters that is essential to government.

The direct involvement as decision-makers of members of the public, in their capacity as such, does more to ensure the maintenance of a high level of trust and confidence in the administration of justice than, perhaps, any other single factor. ¹

[s]entencing engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way that judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.

3.3 As noted earlier, the task of an Australian jury is completed once a verdict has been delivered,³ leaving the judge alone to determine the appropriate penalty. The concern which arises is whether criticism of sentencing and public perceptions of penalties being too lenient and out of step with community expectations, risks leading to an apparent decline in acceptance of, and confidence in, the fairness of sentencing decisions made by judges. While recognising that some of this criticism is ill-founded, and that there is a danger in the selective media reporting of sentences, the Chief Justice nevertheless acknowledged the damage it can do, not only to public confidence, but also to the overall effectiveness of the justice system. The Chief Justice suggested that one way of addressing this may be to provide an opportunity for the jury to play a role in the sentencing process, with a view to enhancing public confidence in it.

3.4 The essence of the Chief Justice’s proposal is that, after a jury has found an accused person guilty of a particular criminal offence, the jury should continue to have a role in a process of in camera consultations with the trial judge before any sentence is imposed on the accused. The proposal raised for consideration would require that the jury involved in the consultation would be composed of at least some of the members of the jury that delivered the verdict in the particular case:

It is not appropriate or desirable to create some kind of artificial jury composed of persons who have not had to decide the critical question of guilt. A jury that has had to turn its collective mind to the determination of guilt has had to focus in a direct, and not merely advisory way, on elements critical to the sentencing task. This focus cannot be artificially created.

3.6 The Chief Justice did not put forward the proposal as a means of increasing the level of sentences, and made it clear that he did not believe that it would have that effect. He offered the view that the process of consultation would improve the quality of sentence decision-making both jury decision-making and enhance public confidence in sentencing. He suggested that judges would welcome assistance from a spectrum of opinion reflecting a diversity of experience. He observed that the sentencing process could be improved by a judge being able to draw on a broad range of experience. Further, the Chief Justice considered that enabling judges to consult with jurors as to the actual reasons for the jury’s guilty verdict, which are currently concealed by the secrecy surrounding their deliberations, would assist the sentencing process.

3.7 Chief Justice Spigelman put forward the suggestion as to an enhanced jury role in sentencing tentatively, noting that many issues needed to be resolved if any such proposal were to be implemented. For example, consultation between judge and jury could intrude upon the secrecy of jury deliberations. Furthermore, there would be resource implications in recalling jury members at the sentencing stage, with logistical difficulties arising from the delay which necessarily occurs between the delivery of the verdict and the sentence.⁵

3.8 We now consider in detail the following issues raised by the Chief Justice’s speech:

• Public perceptions concerning the current sentencing process, and how that impacts on public confidence.
• The likely effect that introducing a role for jurors in sentencing would have on public confidence levels, sentencing decisions and the jurors themselves.
• The type of input that jurors should have, eg, being asked by the judge to explain why they found the defendant guilty, or giving their views on questions that relate directly to sentencing.
• The practical and procedural questions that would need to be resolved before any proposal for involving the jury in the sentencing process could be implemented.
• Whether there are any Constitutional constraints in relation to any such proposal.

The importance of public opinion

3.9 Public perception can be a most powerful tool: often acting as a catalyst for reform and influencing the decisions of policy makers.⁶ So far as the criminal justice system is concerned, the perception in many countries is that violent crime is spiralling out of control, that judges are out of touch with reality, and that sentences are far too lenient for the crimes being committed.⁷ In NSW, initiatives such as the NSW Sentencing Council, by providing a forum for community views on sentencing, and the guideline judgments scheme, by aiming to promote consistency in sentencing principle and appropriate levels of sentencing, can be seen as attempts to improve public confidence.

3.10 The primary reason for suggesting a direct role for the jury in sentencing is to respond to negative public perceptions and to promote greater public confidence in the criminal justice system. However, before considering any such reform to sentencing practice, it would be useful to examine the nature of public opinion concerning sentencing, and the factors that fashion, or at least impact upon, that opinion.

Difficulty in ascertaining a “true” indication of public confidence

3.11 Discussion about public opinion and levels of public confidence often proceed on the basis that it is a definable and tangible concept. It is generally taken for granted that media reports of public opinion on certain subjects are accurate and well-founded. However, research has shown that public opinion is far more diverse than the impression given through the media.⁸ It is also quite malleable, and can be changed and manipulated depending on the facts presented and the questions asked. For example, an opinion poll on whether the death penalty should be reintroduced would be likely to have a higher “yes” response rate following a particularly gruesome murder, than if it were conducted during a less newsworthy period.

3.12 Studies from around the world reveal that the rate of serious crime has plateaued over the last decade,⁹ while the incarceration rate is gradually increasing.¹⁰ Despite this, public dissatisfaction with the criminal justice system’s response to crime continues to gather momentum.¹¹ Research has looked at the reasons for this apparent disparity between statistics and perception. Studies have asked whether it indicates that the public are becoming more punitive in their approach, whether judges actually are out of touch with public views, or whether other factors are operating to create a public perception that does not reflect what is actually happening in the courts.

Research into public perceptions of sentencing

3.13 In 1987, the Australian Institute of Criminology conducted a study into public attitudes to crime and punishment.¹² That study surveyed a random sample of 2551 people, seeking their views on appropriate sentencing options in response to particular fact situations. The results showed that, in general, better educated and/or wealthy people tended to be more lenient in their views than poorer and/or less well educated people, the elderly took a more punitive approach than younger people, while males supported harsher sentences more often than females.¹³ Overall, however, the results reflected a diversity of opinion, with no single set of views regarding appropriate punishments being shared across the community. The authors considered this diversity to be an acknowledgement among members of the public of the complexity of the sentencing process: a fact they felt was often unrecognised by the tabloid press.¹⁴

3.14 In the United Kingdom, jurors in 2321 cases were asked whether or not the sentence handed down regarding the cases on which they served were roughly what they were expecting. Nearly one third (32%) believed that they were, with the same percentage of people having formed no opinion as to what an appropriate sentence would be. The remaining third who considered the sentence unsatisfactory were divided between those felt it was less severe than they would have liked (23%), and those who believed the sentence to be less lenient than it should have been (14%).¹⁵ These statistics support findings showing the diversity of public opinion regarding sentencing.¹⁶

3.15 A Canadian study yielded interesting results pointing to the complex nature of public opinion. When asked whether offenders convicted of particular crimes were treated too harshly or too leniently by the courts, a significant majority of respondents felt that the courts were too lenient.¹⁷ However, when asked whether the appropriate solution to Canada’s prison overpopulation was to build more prisons or to impose more non-custodial sentences, respondents overwhelmingly chose the latter option.¹⁸ While these responses may appear inconsistent, commentators account for this by reason of the following:

• People significantly overestimate the incidence of violent crime, and underestimate the severity of current sentencing practices, and therefore think the courts’ response to be inadequate. People are also more likely to support more severe sentences if they feel victimised by the fear of crime.¹⁹ These findings have been duplicated in studies in Australia,²⁰ New Zealand,²¹ and the United Kingdom.²²
• Survey results will more accurately reflect the type of question asked, the context in which it was asked, and the amount of information provided, rather than a definitive indication of public opinion.²³
• Most people receive the majority of their information about the courts and sentencing through the mass media, whose reporting of such issues is, at best, disproportionate and superficial, and at worst, biased and inaccurate.²⁴

Media and public opinion

3.17 As the Chief Justice pointed out in his speech, the media play a significant role in relaying, shaping and distorting public opinion. Systematic allegations by the media of leniency in sentencing are not only ill-informed, but also chip away at public confidence and skew public perception.³⁰ The Chief Justice acknowledged that mistakes in sentencing occasionally do occur. Unfortunately, these tend to be the only examples highlighted in the media, giving the impression that those decisions are widespread and typical. This may have the ironic, and unintended, effect not only of creating an unwarranted fear of crime and lack of confidence in the criminal justice system, but also of dissipating the deterrent purpose of sentencing by sending a message to would-be offenders that there is a significant chance they will not be punished severely.

3.18 This issue has also been discussed by the Chief Justice of Victoria, who speaks from personal experience when describing the sentencing process as “stressful, worrying and gut wrenching”.³¹ Like Chief Justice Spigelman, Chief Justice Warren has welcomed community debate on sentencing, and recognised the importance of public confidence in the sentencing process. However, she too noted that the media may distort the public’s view of sentencing by selective reporting. While this is to some extent the nature of the news media, when it comes to sentencing, it cannot possible convey the full picture as presented to the judge.

3.19 By their very nature, the news media provide the public with information that is new, or out of the ordinary, and therefore worthy of comment. Since offenders convicted of violent crimes are newsworthy, and since sentencing is the most visible aspect of the trial process, it is not surprising that sentencing decisions are a fertile source for media reports. It is also not surprising that only the most salacious details of a select few cases are ever reported.

3.20 It is right and necessary that the media report on crime and punishment and generate public debate. In doing so, they also have a responsibility to report the truth to ensure that debate is fully informed. We acknowledge that court documents can be bulky and difficult to understand, which does not translate well with the news media’s need to present clear, timely and interesting stories. However, stories on sentencing are often scant on detail to the point of inaccuracy, and fail to present a balanced picture. This can slant public opinion unfairly, and create unwarranted fear by suggesting that crime is out of control, and that the courts continually flout public opinion by imposing excessively lenient sentences. In this way, while claiming to reflect public opinion, the media are in fact creating it with no realistic or accurate basis. This can feed into the legislative and policy process, since no policy maker wants to be seen as unresponsive to public views, or as soft on crime.³²

3.21 As Chief Justice Spigelman noted, there is as much point in complaining about selective media reporting as there is in complaining about the weather. However, with an issue based as solidly on public opinion as the one under discussion, it is important to at least acknowledge that what we take for granted as representing public opinion, may not in fact be all that it appears.

JURY INVOLVEMENT IN SENTENCING

3.22 In this section, we discuss the broad concept of involving the jury in the sentencing process.³³ We note the advantages and disadvantages of jury involvement, with particular reference to the potential impact on public confidence, on sentencing decisions, and on the jurors themselves.

Potential impact on public confidence

3.23 Media reports following the Chief Justice’s speech indicate that victim’s groups generally regard the proposal to require judges to canvass the views of jurors before deciding on a sentence to be a positive move, providing judges with a “reality check”.³⁴

3.24 The underlying assumption of those groups is that the public would have greater confidence in the sentencing decisions made by judges, if they had direct access to community expectations about appropriate penalties, as conveyed through the jury members. In this way, it is thought that the public may be less likely to feel that sentencing decisions are out of step with public opinion on crime and sentencing.

3.25 On the other hand, however, there is reportedly a concern among the legal profession that the proposal could lead to more uncertainty and anxiety than it resolves.³⁵ There are a number of practical difficulties with the proposal, discussed below at paragraph 3.50-3.65, which, if not redressed, could actually have a negative impact on public confidence. For example, because it is proposed that the consultations between the judge and jury be secret, there would be no way of accurately conveying to the public what was said by jury members, and whether the jury’s views were reflected at all in the ultimate sentence.

3.26 Further, as noted above, it is arguable that the commonly held view that sentencing practice has become far too lenient is based largely on perception, generated through the media, rather than reality. As also discussed above, research consistently indicates that people are much more inclined to agree with the sentences handed down by judges when they are apprised of all of the facts and background. Should this research be bourne out in practice, then jurors, who would be aware of all aspects of the case, having heard the arguments for both sides, may be more likely to support a sentence that would match that favoured by the judge.

3.27 Should this trend emerge, there are two possible, and conflicting, outcomes so far as public confidence is concerned. First, public confidence may increase as people would be reassured that judges are not as out of step with public opinion as portrayed in the media, when that public opinion is fully informed. However, the second, and arguably more likely, outcome is that public confidence would continue to falter as there would be no dramatic increase in sentence severity, and the perception of excessive leniency would remain. The danger with this possible outcome is that not only would judges continue to be publicly criticised for their sentencing decisions, but the jury would be implicated as well. This could have the unintended irony of eroding public confidence in the jury system, rather than increasing confidence in the sentencing process.

Potential impact on sentencing decisions

3.28 As the Chief Justice noted in his speech, jury involvement in sentence determination may result in sentences that better reflect community expectations by encompassing a broader range of opinions. He also referred to what some judges describe as the “difficulty and loneliness” of the sentencing task, and expressed the view that many judges would welcome the assistance of jurors’ opinions.³⁶ In particular, the Chief Justice considered that juries could assist on matters relevant to sentencing by offering opinions on the gravity of the crime, or the chance of the offender committing a similar crime.³⁷

3.29 However, many commentators doubt the efficacy of any proposal involving the jury in the sentencing process, and its impact on sentencing decisions. Some feel that jurors may take into account irrelevant or unrealistic considerations when expressing their opinions. For many on the jury panel, sitting through a trial will have been their closest, and possibly first, exposure to the criminal law, and, particularly in cases involving gruesome evidence, will be the worst thing they have ever seen. The fear has been expressed that this could lead to “mob sentencing”, with jurors wanting retribution and recommending that judges impose sentences at the most severe end of the scale, regardless of any mitigating factors.³⁸

3.30 Chief Justice Spigelman stated in his speech that he did not propose jury involvement in sentencing with the aim of introducing harsher sentences. Indeed, he referred to studies, discussed at paragraph 3.13-3.16 above, that indicate jurors are not significantly more harsh in the views on sentencing than judges. In any event, under the possible system identified by the Chief Justice, jurors would only express opinions, with the final decision to be made by the judge.

3.31 Opponents of jury involvement in sentencing also believe that it would result in a lack of consistency in sentencing, which would in turn impact on public confidence.³⁹ It can be difficult enough to get twelve jurors to agree on a verdict, let alone a sentencing option.⁴⁰ Once again, this may not be of tremendous concern, since the ultimate decision is to be made by the judge and not the jurors. However, if the jury’s views are truly to be taken into account by the judge, it is argued that there may still be an element of disagreement or inconsistency.⁴¹

3.32 This raises the related consideration of how effective the proposal would ultimately be. Would hearing the diverse opinions of twelve people actually help a judge reach a more accurate conclusion than he or she would otherwise have reached after examining the evidence and hearing submissions?⁴² If the role of the jury in sentencing is confined to the advisory role proposed by the Chief Justice, would it ever be more than a token gesture?

Potential impact on jurors

3.33 In his speech, the Chief Justice noted that jurors are often interested in the sentencing process, with some attending the sentencing hearings following the trials in which they participated. However, others have argued that having an interest in the process is different from wanting, or being compelled, to attend a sentencing hearing and actively participate.⁴³ Not all jurors want to be involved at this level. Having already given up days, or weeks, of their time during the trial, jurors may be reluctant to submit to further disruption of their work and family lives.

3.34 It is also argued that the primary role of the jury as determiners of guilt is difficult enough. Requiring jurors to have input into sentencing could serve as a further distraction and add to their stress levels.⁴⁴ Opponents of the proposal also consider it to be too difficult a task for jurors, who have no legal training, no experience in sentencing, and are unaware of typical sentences and trends.⁴⁵ Sentencing involves an instinctive understanding of legislation, principles, trends and guidelines, which jurors do not have.⁴⁶ Some suggest that it would be “unnecessary, time-consuming, and expensive to educate every jury member on the intricacies of sentencing law” which, it is argued, would need to happen if the consultation process is to be meaningful.⁴⁷ Moreover, there is the problem of the jury being influenced by their perceptions of the community reaction to the offence, as portrayed by the media during the interval between verdict and sentence, which can sometimes be quite intense and vitriolic.

3.35 These arguments, however, may be overstating the problem. According to the model discussed by the Chief Justice, the jury’s role would be an advisory one only: limited to answering specifically targeted questions, such as the prospects of re-offending, or the perceived gravity of the offence, or the reasons for their verdict. While jurors would need to have a basic understanding of the sentencing process and their role in it, it does not follow that they would need to be aware of every intricacy of sentencing law and practice.⁴⁸ The information that jurors may need to have access to if they have a role in sentencing is discussed at paragraph 3.57-3.58 below.

3.36 Perhaps the most cogent argument against the proposal, so far as the impact on jurors is concerned, is the possibility that knowing they will have a role in sentencing may influence the jury’s verdict. Commentators have expressed concern that involving jurors in two stages of the criminal justice process may prejudice their primary role in determining the verdict. Jurors who may be having trouble reaching a decision could compromise on their verdict. For example, some jurors may decide to agree to convict a defendant, in circumstances where they would otherwise remain doubtful, because they believe they will have a role in convincing the judge to impose a lenient sentence.⁴⁹ There is also the related fear that expanding the jury’s role in sentencing would lead jurors to consider external, or even irrelevant, facts when determining the verdict. However, as noted in the previous chapter, it not always possible under the present system to know the evidence on which the jury bases its verdict.

MEANS OF INVOLVING THE JURY

3.37 Having discussed the broad concept of greater jury involvement in the sentencing process, we look in this section at the ways in which such involvement could be facilitated. In the previous chapter, we note that there have been occasions where judges have asked jurors to answer specific questions of fact as part of their verdict, in certain circumstances, provided those facts related to essential elements of the offence, and not to sentencing matters alone. Here, we examine the possibility that jurors should be able to answer questions following their guilty verdict that relate solely to sentencing, such as how serious they believe the offence to be, and the likelihood of the offender committing the same offence again. We also look at the propriety and possible consequences of judges asking jurors to disclose the facts on which their guilty verdict was based.

Clarifying the facts supporting a guilty verdict

3.38 As discussed in Chapter 2, a guilty verdict may not always reveal which aspects of the offender’s conduct the jury found to be proven beyond reasonable doubt, or what the jury believed about the offender’s mental state. At present, the sentencing judge must “fill in the gaps” by forming his or her own view of the facts upon which the jury based their decision. The main constraint on the sentencing judge in this respect is that the sentence must not conflict with the jury’s verdict,⁵⁰ and must not take into account any matters of aggravation which could amount to a more serious offence.⁵¹

3.39 The issue of judges asking jurors questions concerning the reason for their verdict is a contentious one, and has been raised for discussion on previous occasions.⁵² In certain cases involving manslaughter, where the jury’s verdict could have been based on a number of possible scenarios, courts have raised the possibility that the jury should be asked to disclose the reason for its verdict.⁵³ The risks involved in asking jurors to clarify the reasons for their verdict were summed up by Justice Stephen:

Care must no doubt be taken to ensure both that the foreman clearly understands the nature of the question and that he is fully capable of answering it, that is, that he in fact knows what are the grounds which have led his fellow jurors to their verdict. If there has been no unanimity as to grounds or if individual jurors have not disclosed, and may, indeed, not be prepared to disclose, their grounds the foreman cannot of course, supply the information sought. It should be made clear to him that his function is only to answer to the best of his ability the question asked, ensuring that, if answered, it does truly reflect the jury’s unanimous view. The question should, of course, be so confined as to ensure that it does not invite any spontaneous general disclosure of the jury’s deliberations.⁵⁴

3.41 This Commission previously considered this issue two decades ago. In Discussion Paper 12, we tentatively proposed that:

where alternative bases for a conviction (which have different consequences for sentencing) are left to a jury, the judge should endeavour to determine which basis the jury accepted. … [I]n such cases, the judge should direct the jury in the summing-up to consider on which ground the verdict is based. When the verdict is rendered in such a way that the ground accepted is not clear, the judge should first ask the foreman whether the jury reached a unanimous view as to which ground it accepted. If the foreman affirms that the jury was unanimous on this issue, the judge should then ask which ground was accepted . The judge should then be bound, in sentencing, by the jury’s view of the facts.⁵⁷

Benefits of the proposal

3.43 Clearly, the major benefit of the proposal to question the jury as to the reasons for its verdict is to take some of the “guess work” out of sentencing, where there are a number of bases on which the jury could have convicted the defendant. This could assist judges to impose sentences that more accurately reflect the nature and degree of the offender’s wrongdoing as found by the jury. It could also uncover potential defects in the jury’s decision-making process, which the trial judge could point out to the appeal court.⁵⁹

Problems with the proposal

3.44 The NSW Court of Criminal Appeal listed the following problems associated with asking questions of a jury concerning their verdict:

1. To inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.

2. The jury’s response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.

3. There may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.

4. There is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel.

5. Where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.

6. The judge may be embarrassed if he or she does not agree with the jury’s answer to the question.

7. Where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others.⁶⁰

Asking the jury to express opinions following conviction

3.46 One element of the Chief Justice’s proposal was that judges should be able to ask jurors their opinions on matters pertaining directly to sentencing, which may not have been relevant for their verdict in relation to guilt. The questions could be in relation to submissions brought before the sentencing hearing, including those which were of a subjective nature. Examples of the type of information identified, include opinions as to the likelihood of the offender re-offending, the chances of rehabilitation, and the gravity of the conduct involved.

3.47 This would involve a departure from the current position at common law, discussed in the previous chapter, in three respects.⁶³ First, it involves the jury in helping determine matters of sentencing only. Secondly, it provides for a role for the jury following delivery of the verdict, even though it has been assumed, as a matter of law, that once they have delivered a verdict, their role is concluded. Thirdly, it would involve the jury in giving an advisory, non-binding opinion, which would not be reflected in a verdict.

3.48 The advantage of jury involvement is that sentencing judges might have greater confidence that the sentences they hand down reflect contemporary social values. This would be especially relevant in cases where there are complicating or extenuating circumstances that may mitigate against either the gravity of the offence or the severity of the sentence. For example, in cases where an offender has been convicted of manslaughter involving euthanasia, or following years of domestic violence abuse, public opinion may tend towards a more lenient sentence being imposed than would otherwise be the case.⁶⁴

3.49 The disadvantage is that there is likely to be a diversity of opinion among jurors, which may ultimately be of little assistance to the sentencing judge. There is no way of knowing whether or not the opinion of twelve people drawn randomly from the community does, in fact, reflect contemporary social values. Nor is there any way of knowing whether or not the opinion may be based on a juror’s personal experience, prejudice or bias, or represents an impartial and independent assessment of the evidence and submissions presented during the sentencing hearing. Ironically, this is more likely to be the case in relation to offences involving contentious social issues, such as the examples in the above paragraph, where judges could benefit most from greater exposure to public opinion.

LOGISTICAL QUESTIONS

3.50 As the Chief Justice noted in his speech, his proposal gives rise to a number of practical issues that need to be resolved.

Potential for inconvenience and delay

3.51 At paragraph 3.33-3.36, we discussed the potential impact of the Chief Justice’s proposal on jurors, noting that not all members of a jury panel may want to participate in sentencing the offender they have just convicted. The Chief Justice referred in his speech to recalling “such proportion of the jury as is able to return to hear the evidence on sentencing”. This gives rise to the possibility that a judge could consult, on matters of sentencing, with less than the full complement of jurors who determined the verdict. This in turn raises the question whether jury participation in sentencing ought to be voluntary, or compulsory unless it is not possible or practical for jurors to attend.

3.52 Compulsory attendance at a sentencing hearing would involve further inconvenience for jurors and greater administrative costs.⁶⁵ Moreover, recalling a jury panel for sentencing purposes is not the same as empanelling jurors in the first place. Originally, twelve jurors are chosen at random from a large pool of candidates. The trial date is set, and the selection of the jury fits around that date. In sentencing, however, only the twelve defined people who delivered the particular verdict are eligible. Accordingly, the sentencing hearing, or at least the consultation between the judge and jury on sentencing issues, would need to be held at a time when the maximum number of jurors would be able to attend if the exercise is to be of any benefit. Given that sentencing hearings usually involve a delay sometimes of six weeks or more from the conclusion of the trial, in order to prepare the necessary evidence and secure the availability of the participants, the additional need to recall as many jury members as possible could contribute to further delay.⁶⁶

3.53 It may not be possible or practicable for all of the jurors to attend. Some may die, or fall ill or have commitments outside of the jurisdiction. This raises the issue of the minimum number of jurors needed to make consultation on sentencing fair and worthwhile. Should jury participation in sentencing proceed if less than half of the original panel are available at the time of the sentencing hearing? While jurors are currently required to agree unanimously on a verdict,⁶⁷ they need not agree on their interpretation of the facts leading to the verdict. Consequently, hearing from only a few of the jury panel at the sentencing stage may not give the judge the full picture of the facts on which the guilty verdict was based, which is one of the primary rationales for securing jury involvement.

3.54 There would also need to be some parity between sentencing hearings. For example, questions of fairness could arise where one offender was sentenced after the judge heard the views of twelve jurors, and another was sentenced at a separate hearing where a lesser number of jurors were available for consultation. While it is certainly desirable to expedite the sentencing process, this must occur within the bounds of procedural fairness.⁶⁸

Question of timing

3.55 Some of the issues discussed above could be addressed by the timing of the jury’s involvement in the sentencing process. As previously noted, the sentencing hearing takes place weeks, or even months, after the jury delivers its guilty verdict. In the interim, jurors may forget their exact reasons for reaching the views they did during their deliberations. More significantly, jurors may be influenced in the meantime by factors external to the evidence presented at trial and due to be brought at the sentencing hearing.⁶⁹ This would be particularly likely in high profile cases with extensive media coverage. The problems inherent with jurors having virtually instant access through the Internet to prejudicial information about their cases has been highlighted in recent decisions before the NSW Court of Criminal Appeal.⁷⁰ These difficulties would be compounded in the time lag between verdict and sentencing.

3.56 An alternative is for the judge to consult with the jury as to their views on sentencing immediately following delivery of a guilty verdict. This would have the advantage of not requiring the jury to be recalled at a later date, and so avoid the associated delay and problems with juror unavailability. The evidence from the trial, and the reasons why they chose the verdict they did would be fresh in their minds. However, the major drawback of this approach is that the jury would not have access to potentially important information specifically on sentencing that was not presented at the trial. Nor would they have the opportunity to hear submissions on sentencing brought by counsel for both sides relating to aggravating or mitigating factors, or to the subjective considerations that are a critical part of the sentencing process. As a result, their input would be less valuable to the sentencing judge.

Jurors’ information needs

3.57 At the sentencing hearing, information that has a bearing on the type and length of penalty an offender should receive is presented to the court. That information will generally differ from the evidence brought forward during the trial, given that it is intended for a different purpose. This is particularly the case with any Victim’s Impact Statement, or a report from the Probation and Parole Service or Department of Juvenile Justice, if required.

3.58 In our Majority Verdicts Report, we examined the question of jurors’ information needs during a trial. We looked at studies revealing that jurors generally found it quite difficult to understand the law and the evidence, and were assisted in their comprehension by receiving clear instructions from the judge, preferably at the start of the trial and in writing.⁷¹ It also helped if jurors were made aware of the ability to take notes and ask questions of the judge. Even though jurors would not be expected to be the ultimate decision makers, nevertheless, consideration would still need to be given to the type of information jurors would receive during the sentencing phase, and the manner in which it is presented, if jurors are to make a meaningful contribution to sentencing.

Procedural issues

3.59 The issue of how the consultations are to be conducted also needs to be resolved. The Chief Justice’s proposal contemplates that the judge should consult with members of the jury in private as to their views on certain aspects of sentencing, after they had listened to the evidence presented during the sentencing hearing. This would have the benefit of protecting jurors, and guarding against intrusions into the secrecy of jury deliberations. However, critics of the proposal claim that the secrecy of the consultations would be a denial of natural justice and run contrary to the tradition of justice being run in an open court.⁷²

3.60 It is unclear the extent to which the secrecy provisions would, or should, apply. The proposal identified by the Chief Justice left open the suggestion that a trial judge would be able to inform an appeal court of any possible errors in the jury’s decision-making process which were revealed as a result of consultations on sentencing. If so, this would undermine the requirement that the consultations be held in camera, and intrude into the veil of secrecy that has been observed in relation to jury deliberations. On the other hand, if judges were restricted in the ability to report the content of the discussions to the appeal court, or include details of the consultation in the reasons for the sentence handed down, then the extent to which the jury’s views were taken into consideration in determining the sentence would remain unknown. In this event, the consultation process would be likely to have little impact on public confidence.

3.61 The structure of the consultations also needs to be addressed. For example, would all jurors need to be consulted at the same time? Should the judge have to consult individually with all of the jurors able to attend the sentencing hearing, or should the foreperson speak on behalf of the jurors? As noted earlier, while jurors may agree with each other on the verdict, they may each hold a different view of the facts on which the verdict was based, or on other matters of relevance to sentencing. Consequently, consulting only with a spokesperson may give the judge an incomplete picture of the jury’s views. On the other hand, it is questionable how useful a judge would find twelve different opinions on the facts pertinent to sentencing.

3.62 At paragraph 3.51-3.52 above, we discussed the issue of whether or not jurors should be compelled to participate in sentencing. If it is compulsory for jurors to attend the sentencing hearing, what should happen if one or more of the jurors attends but refuses to reveal their views on sentencing issues, or reasons for supporting a guilty verdict?

3.63 Another issue that needs to be considered is whether or not a defendant should be able to ask that the jury not be involved in the sentencing process. Apart from raising questions of parity, matters of public policy would also be involved. If jury input into sentencing were to be adopted as a means of ensuring that sentences reflect community values, should the public interest in jury involvement in sentencing outweigh the defendant’s wish to be sentenced by a judge alone? Further, it may be more likely that offenders convicted of particularly gruesome crimes, such as rape, murder or child sexual offences, would seek to avoid the involvement of the jury in sentencing.

3.64 Finally, it is not unusual for Commonwealth and State offences to be heard together in the one trial. In its current examination of sentencing of federal offenders, the Australian Law Reform Commission has provisionally proposed that juries should not be involved in the sentencing process.⁷³ Should this be accepted, and some form of jury involvement be implemented at State level, it would create an uneasy synthesis in trials involving both Commonwealth and State offences. Juries would be able to deliver a guilty verdict regarding both types of offences, but only have a sentencing role with regard to State offences.

3.65 We are not aware of any Constitutional barriers to juries performing an advisory role in the sentencing process.

ISSUES FOR DISCUSSION

Q1.
Should jurors be involved directly in the sentencing process?

Q2.
What are the benefits and detriments of jury involvement in sentencing?

Q3.
What would be the likely effect of jury involvement on public confidence in the sentencing process?

Q4.
Is there a more effective way of addressing the issue of public confidence in sentencing decisions, and if so, what should it be?

Q5.
What effect would jury involvement be likely to have on sentencing decisions?

Q6.
How should consultation between judges and jurors be conducted? For example, should the consultation be a structured one, where the jury answers specific questions put to them by the judge, or should there be more open discussion?

Q7.
What sort of questions should a sentencing judge be able to ask a jury?

Q8.
Should jurors be asked to clarify the reasons for their guilty verdict? Why or why not?

Q9.
Are there other ways that jurors can be involved in the sentencing process?

Q10.
How can judges protect the secrecy of jury deliberations while consulting with the jury on aspects of sentencing?

Q11.
Should it be compulsory for jurors to participate in the sentencing process?

Q12.
What is the minimum number of jurors required to give the judge a fair and accurate indication of the jury’s views on sentencing?

Q13.
What should happen if the minimum number of jurors cannot be assembled for the sentencing hearing within a reasonable period following conviction of the offender?

Q14.
At what stage following a guilty verdict should the jury be consulted as to their views on sentencing?

Q15.
Should jurors receive access to all the information that the sentencing judge would have, including any Victim’s Impact Statement and sentencing guidelines? In what format should this information be presented?

Q16.
To what extent should the judge explain sentencing law and practice to the jury?

Q17.
Should each juror be consulted regarding his or her views on sentencing, or should the foreperson convey the jury’s views to the judge? If there is disagreement among jurors as to the appropriate approach to sentencing, should all views be presented to the judge, or only a unanimous or majority view?

Q18.
What should happen if the jurors cannot agree on the questions left to them by the judge, or on the opinions that they wish to offer?

Q19.
What should happen if a juror refuses to disclose his or her views?

Q20.
Do you agree that consultation between the judge and jury should occur in private without the presence of counsel for both sides? Should all aspects of the consultation be kept secret ( eg, the number of jurors consulted), or only some aspects, and if so, which ones?

Q21.
Should the defendant be able to request that the jury not be involved in the sentencing process? If so, in what circumstances?

1. The Honourable JJ Spigelman AC, Chief Justice of New South Wales, “A New Way to Sentence for Serious Crime”, Address for the Annual Opening of Law Term Dinner for the Law Society of New South Wales (31 January 2005). See «www.lawlink.nsw.gov.au/sc/sc.nsf/pages/spigelman_310105».

2. The Honourable JJ Spigelman AC, Chief Justice of New South Wales, Address to the Parole Authorities Conference (10 May 2006). See «www.lawlink.nsw.gov.au/sc/sc.nsf/pages/SCO_spigelman100506»

3. Or, in the case of a hung jury, where no verdict can be delivered and the jury is discharged.

4. See para 2.18-2.43 for a comparative look at jury sentencing in the United States.

5. See para 1.6-1.47 for a description of the current sentencing process.

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

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

8. See discussion below at para 3.11-3.21.

9. See NSW Bureau of Crime Statistics and Research, NSW Recorded Crime Statistics 2005 (relased 10 April 2006); see also the interactive Crime Trends Tool accessed at «www.bocd.lawlink.nsw.gov.au/bocd/cmd/crime trends/». See also Roberts, Stalans, Indermaur and Hough at 11-12.

10. See J Fitzgerald, “Trends in Sentencing in the New South Wales Criminal Courts: 1990-2000” 62 Crime and Justice Bulletin 1 (BOCSAR, November, 2001). See also Roberts, Stalans, Indermaur and Hough at 19.

11. See Roberts, Stalans, Indermaur and Hough; and Indermaur (1987) at 163; see also United Kingdom Parliament, “Public Attitudes Towards Sentencing: Research Findings” at «www.parliament.the-stationery-office.co.uk/pa/cm199798/cmselect/cmhaff/486/…». In a recent New Zealand survey, respondents were asked to rate the job done by a number of criminal justice officials. Judges, along with the prison service, received the lowest rankings: see J Paulin, W Searle and T Knaggs, Attitudes to Crime and Punishment: A New Zealand Study (December 2003, Ministry of Justice, Wellington, New Zealand) accessed at «www.justice.govt.nz/pubs/reports/2003/publicattitudes».

12. J Walker, M Collins and P Wilson, “How the public sees sentencing: an Australian survey” Trends and Issues in Crime and Criminal Justice (No 4, April 1987, Australian Institute of Criminology).

13. Walker, Collins and Wilson at 6.

14. Walker, Collins and Wilson at 6.

15. M Zander and P Henderson, The Royal Commission on Criminal Justice: The Crown Court Study (Research Study No 19, 1993) at para 8.8.3.

16. See also United Kingdom Parliament, “Public Attitudes Towards Sentencing: Research Findings” at «www.parliament.the-stationery-office.co.uk/pa/cm199798/cmselect/cmhaff/486/…».

17. See AN Doob and JV Roberts, “Public punitiveness and public knowledge of the facts: some Canadian surveys” in N Walker and M Hough, Public Attitudes to Sentencing: Surveys from Five Countries (Gower Publishing Co Ltd, Great Britain, 1988) at 111-113. See also JV Roberts and AN Doob, “Sentencing and Public Opinion: Taking False Shadows for True Substances” (1999) 27(3) Osgoode Hall Law Journal 491 at 494-496 and 497-499.

18. Doob and Roberts in Walker and Hough at 113; Roberts and Doob at 504.

19. M Hough, H Lewis and N Walker, “Factors associated with ‘punitiveness’ in England and Wales” in Walker and Hough at 210-211.

20. Indermaur (1987) at 175-177.

21. Paulin, Searle and Knaggs.

22. N Walker, M Hough and H Lewis, “Tolerance of Leniency and Severity in England and Wales” in Walker and Hough at 185-186.

23. See also Indermaur (1987) at 163.

24. Doob and Roberts in Walker and Hough at 113-133; Roberts and Doob at 499-501. See also Indermaur (1987) at 164. A study in the United Kingdom revealed that 91% of people surveyed gained most of their information about crime from the print and electronic media. That study also found that readers of the tabloid press were more likely to hold punitive views regarding sentencing than other readers: M Hough, H Lewis and N Walker, “Factors associated with ‘punitiveness’ in England and Wales” in Walker and Hough at 212-213.

25. Doob and Roberts in Walker and Hough at 124-133; Roberts and Doob at 501.

26. Doob and Roberts in Walker and Hough at 131-132.

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

28. A Ashworth and M Hough, “Sentencing and the Climate of Opinion” (1996) Criminal Law Review 776; see also Zander and Henderson.

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

30. See The Hon JJ Spigelman, “Sentencing Guideline Judgments” (1999) 73 Australian Law Journal 876 at 880.

31. Her Honour Justice Marilyn Warren, Chief Justice of Victoria “Sentencing Opinion Piece” (11 April 2005) (see «www.supremecourt.vic.gov.au»).

32. For a discussion on the media’s influence on public opinion and sentencing policy, see Roberts, Stalans, Indermaur and Hough at ch 5.

33. The details of how the proposal might be implemented are discussed at para 3.37-3.63 below.

34. M Pelly, “Lawyers uneasy over plan for jury sentencing role” Sydney Morning Herald (2 February 2005).

35. M Pelly, “Lawyers uneasy over plan for jury sentencing role” Sydney Morning Herald (2 February 2005).

36. See discussion at (2005) 29 Criminal Law Journal 355 at 362.

37. The benefits and drawbacks of involving the jury in this manner are discussed at para 3.46-3.49.

38. J McIntyre, “The role of juries in sentencing” (2005) 86 Reform 56 at 56; M Pelly, “Give jury a say in sentence: top judge” Sydney Morning Herald (1 February 2005); and “Sentencing Could Benefit from Jury Input: NSW Chief Justice” (2 February 2005): (see «www.findlawaustralia.com.au/news»).

39. McIntyre at 56.

40. An example is the recent experience of the United States jury in the sentencing of Zacarias Moussaoui for his role in the terrorist attacks of September 11, 2001. It was reported that the jury had difficulty in reaching a unanimous decision on many of the issues involved: see M Coultan, “Americans divided over Moussaoui verdict” Sydney Morning Herald (Friday, 5 May 2006 at 7); and P Hirschkorn, “Jury spares 9/11 plotter Moussaoui” (accessed at «www.cnn.com/2006/LAW/05/03/moussaoui.verdict/»).

41. (2005) 29 Criminal Law Journal 355 at 365.

42. McIntyre at 56.

43. McIntyre at 57.

44. M Pelly, “Lawyers uneasy over plan for jury sentencing role” Sydney Morning Herald (2 February 2005); K Gibbs “NSW Chief Justice advises greater role for jurors” (11 February 2005) at «www.lawyersweekly.com.au/articles/b4/0c02c9b4.asp»; McIntyre at 57.

45. McIntyre at 56.

46. McIntyre at 56.

47. McIntyre at 56. See also Australian Law Reform Commission, Sentencing of Federal Offenders (Discussion Paper 70) at para 13.90-13.91.

48. See (2005) 29 Criminal Law Journal 355 at 364.

49. (2005) 29 Criminal Law Journal 355 at 363; McIntyre at 56.

50. Savvas v The Queen (1995) 69 ALJR 564.

51. R v De Simoni (1981) 147 CLR 383.

52. See, eg, New South Wales Law Reform Commission Criminal Procedure: The Jury in a Criminal Trial (Discussion Paper 12, 1985) (“NSWLRC DP12”); New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial (Report 48, 1986) (“NSWLRC Report 48”) at para 8.16-8.20; and Australian Law Reform Commission, Sentencing of Federal Offenders (2005, Issues Paper 29) at para 11.58-11.61.

53. Veen v The Queen (No 1) (1979) 143 CLR 458; and R v Low (1991) 57 A Crim R 8.

54. Veen v The Queen (No 1) (1979) 143 CLR 458 at 466.

55. Cheung v The Queen (2001) 209 CLR 1 at [133]. See para 2.14.

56. R v Isaacs (1997) 41 NSWLR 374 at 379-380. See also Cheung v The Queen (2001) 209 CLR 1 at [18].

57. NSWLRC DP12 at para 9.17.

58. NSWLRC Report 48 at para 8.19-8.20.

59. (2005) 29 Criminal Law Journal 355 at 362.

60. Isaacs v The Queen (1997) 41 NSWLR 374 at 379-380.

61. (2005) 29 Criminal Law Journal 355 at 363; McIntyre at 57.

62. McIntyre at 57.

63. See para 2.2-2.17.

64. Issues such as these naturally involve competing questions of public policy and differences in personal beliefs.

65. McIntyre at 57.

66. See McIntyre at 57.

67. Although the Government has announced that majority verdicts will be introduced in criminal trials in NSW: see K Burke and M Pelly, “Law waves goodbye to 12 angry men” Sydney Morning Herald (10 November 2005); and D Fisher, “An end to hung juries – Laws introduced to allow majority verdicts” Daily Telegraph (10 November 2005).

68. Procedural fairness issues are discussed at para 3.59-3.64 below.

69. McIntyre at 57.

70. R v K (2003) 59 NSWLR 431, and R v Skaf (2004) 60 NSWLR 86. The issue of jury access to prejudicial reports is also discussed in See M Chesterman, J Chan, S Hampton, Managing Prejudicial Publicity (February 2001, Justice Research Centre, Law and Justice Foundation of NSW). See also Her Honour Justice Virginia Bell, “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (Speech at the Supreme and Federal Courts Judges’ Conference, 27 January 2005) accessed at «www.lawlink/supreme_court/11_sc.nsf/SCO_speech_bell_270105».

71. NSWLRC, Majority Verdicts (Report 111, August 2005) at para 4.17-4.46.

72. McIntyre at 57.

73. Australian Law Reform Commission, Sentencing of Federal Offenders (2005, Discussion Paper 70) preliminary view expressed at para 13.94-13.95.