Updates and background for this project (Digest)

• Background to this report
• Structure of this report

BACKGROUND TO THIS REPORT

1.1 This Report marks the final stage of the New South Wales Law Reform Commission’s (“NSWLRC”) inquiry into juror involvement in the sentencing of offenders. It follows from the reference given to us by the former Attorney General, the Hon Bob Debus MLC, to investigate whether the presiding judge in a criminal trial by jury “might, following a finding of guilt, and consistent with the final decision remaining with the judge, consult with the jury on aspects of sentencing”.

1.2 The former Attorney General referred the issue of juror participation in sentencing to the Commission as a result of an address delivered by his Honour James Spigelman AC, Chief Justice of the Supreme Court of New South Wales, entitled “A New Way to Sentence for Serious Crime”.¹ In that speech, the Chief Justice suggested various improvements to current sentencing procedures. One of those suggestions was to investigate the possibility of involving the jury in the sentencing process. 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. This would enhance the jury’s role beyond that of fact-finders determining the accused’s guilt or innocence.

1.3 The Chief Justice did not suggest that the jury should actually determine the sentence, as occurs in some United States jurisdictions.² Nor did he 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. The Chief Justice offered the view that the process of consultation would improve the quality of sentencing decisions 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.

Issues Paper 27

1.4 The Commission released an Issues Paper in June 2006 inviting discussion on the matters raised by the Chief Justice.³ That Paper generated significant media attention.⁴ Particular attention was drawn to:

• 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.

Submissions overview

1.5 The Commission received 22 submissions in response to IP 27. Those submissions were from current and former District and Supreme Court judges, organisations representing the legal profession and civil liberties groups, together with several submissions from interested members of the public, including former jurors.⁵ All but one of those submissions opposed the suggestion that juries should have a direct role in determining sentence following the conviction of an offender.⁶

1.6 The overwhelming majority considered that the current situation should remain, with the jury having no role following the verdict. This view is held for the following reasons:

• any advantage that may occur from any actual or perceived increase in public confidence would be outweighed by the “possible distortions of the trial process and sentencing phase”, and an erosion of the integrity of the jury system; ⁷
• jury involvement is unlikely to produce more consistent or significantly different sentencing outcomes; ⁸
• the practical difficulties of jury involvement in sentencing are too great, and cannot be overcome without importing unfairness into trial and sentencing phase; ⁹
• sentencing is a complex process, and as such, it would be difficult if not impossible, to educate jurors to the extent that they could give considered advice to the judge in sentencing;¹⁰
• it would create a two-tier system of justice causing inequality between trials heard by a jury and trials heard by a judge alone;¹¹ and
• the issue of a real or perceived lack of public confidence in the criminal justice system would be better addressed through community education about current sentencing practices.¹²

1.7 The Commission also participated in a number of conferences and seminars following the release of IP 27. For example, our Chairperson, the Hon James Wood AO QC, hosted a session at the Government Lawyers Continuing Legal Education Conference,¹³ and participated in a seminar in conjunction with the University of Sydney Law School and the Institute of Criminology.¹⁴ The Commission also presented a paper at the Australia New Zealand Jury Research and Practice Conference.¹⁵ At the request of the Human Rights and Equal Opportunity Commission, we also participated in, and presented a paper at, the People’s Assessors Research Seminar in Hainan, China.¹⁶

STRUCTURE OF THIS REPORT

1.8 In Chapter 2 of this Report, the Commission discusses the law and practice setting out the factors that judges must consider when sentencing an offender. In Chapter 3, we look at the input that the jury may currently make with regard to sentencing in NSW. This is contrasted with a brief study of the role of the jury in other jurisdictions.

1.9 The views expressed in submissions concerning the desirability of involving jurors to a greater extent in the sentencing process are detailed in Chapter 4. Having considered those views, we recommend that any perceived benefits of adopting the proposal would be significantly outweighed by the practical difficulties of its implementation, together with concerns regarding the impact of the proposal on the right to a fair trial. Finally, the Commission considers the issue of public confidence in the sentencing process, since concerns about confidence levels was one of the major drivers of the Chief Justice’s proposal. We recommend that taking measures to improve community awareness and public education regarding the current sentencing process would be more effective in boosting confidence levels.

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, Sydney 31 January 2005).

2. See ch 3 for a discussion of jury sentencing in the United States.

3. New South Wales Law Reform Commission, Sentencing and Juries, Issues Paper 27 (June 2006) (“IP 27”).

4. Richard Macey, “Juries may set penalties”, Sydney Morning Herald, 26 July 2006; Simon Benson, “Juries to set sentences”, Daily Telegraph, 26 July 2006; Simon Benson, “Judge pushed people power”, Daily Telegraph, 26 July 2006; “Don’t sentence the jury to judges role”, Editorial, Daily Telegraph, 26 July 2006; Janet Fife-Yeomans, “Australia’s own reality court show: Judge Jury”, Daily Telegraph, 26 July 2006; Paul Sheehan, “Finally, the law might loosen its grip on the jury”, Sydney Morning Herald, 27 July 2006; Tim Dick, “Lawyers pan jury idea”, Sydney Morning Herald, 27 July 2006; Simon Benson, “Lawyers reject jury sentences”, Daily Telegraph, 27 July 2006; “The verdicts are in for jury sentencing”, Daily Telegraph, 27 July 2006; “Juries fully occupied in reaching a verdict”, Letters to the Editor, Daily Telegraph, 27 July 2006; “Jury involvement in sentencing not fair, threatens consistency”, Newcastle Herald, 27 July 2006; Alix Drew, “Jurors may have greater role”, Daily Liberal, 27 July 2006 “Lawyers sceptical about jury sentencing”, Daily Liberal, 27 July 2006; “ Move for jury sentencing help”, Hobart Mercury, 26 July 2006; Terry Sweetman, “Jury out on sentencing reform”, Courier Mail, 28 July 2006; Drew Cratchley, “Public divided on the question of jury sentencing”, Illawarra Mercury, 29 July 2006; Megan Kinninment, “Sentencing is not a role for jurors”, Northern Star, 31 July 2006; J Roberts, “Juries lack legal insight”, Daily Telegraph, 7 August 2006.

5. A full list of individuals and organisations who made submissions to this Inquiry can be found in the Appendix to this Report. The views expressed in submissions are discussed extensively in chapters 4 and 5.

6. Australian Labor Party, Kincumber Region, Submission, 20 August 2006. That submission recommended that juries should be able to make sentencing recommendations, and that those recommendations should be based on shared community perspectives.

7. NSW Council for Civil Liberties, Submission, 1 September 2006; NSW Bar Association, Submission, 1 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge John Goldring, Submission, 16 August 2006; Judge Michael Finnane, Submission, 7 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Legal Aid NSW, Submission, September 2006.

8. NSW Council for Civil Liberties, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

9. NSW Council for Civil Liberties, Submission, 1 September 2006; NSW Bar Association, Submission, 1 September 2006; The Hon Gordon J Samuels, Submission, 13 August 2006; Judge John Goldring, Submission, 16 August 2006; Justice R O Blanch, Submission, 31 July 2006; Judge Michael Finnane, Submission, 7 August 2006.

10. NSW Council for Civil Liberties, Submission, 1 September 2006; NSW Bar Association, Submission, 1 September 2006; The Hon Gordon J Samuels, Submission, 13 August 2006; Judge John Goldring, Submission, 16 August 2006; Public Defenders’ Office, Submission, 18 September 2006.

11. NSW Bar Association, Submission, 1 September 2006. See also Judge M Sides, Submission, 28 July 2006; Judge G D Woods, Submission, 28 July 2006; Justice RO Blanch, Submission, 31 July 2006; Judge Michael Finnane, Submission, 7 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

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

13. Held in Sydney on 12 September 2006.

14. The seminar, entitled Masters of Fact and Law? A Place for Juries in Sentencing?, was held in Sydney on 4 October 2006.

15. Held at the University of Canberra Law School, 10 November 2006.

16. Held on 13-15 November, 2006. The seminar was held as part of the China-Australia Human Rights Judicial Co-operative Program.