Current Projects
NSW Sentencing Council is currently working on the following projects. Select a project to know more details on this page:
Aboriginal offenders - sentencing
Annual Report - Sentencing trends and practices 2008-2009
Arson - Review of laws
Fines - The effectiveness of fines as a sentencing option: court-imposed fines and penalty notices
Provisional sentencing for children
Public attitudes towards sentencing
Public forums on crime and sentencing
Reductions in penalties at sentence
Sexual asault offences - Penalties relating to sexual assault offences in New South Wales
Standard non-parole periods and guideline judgments - call for submissions
Aboriginal offenders – sentencing
In its 2005–06 Report on Sentencing Trends and Practices, the Council identified a number of Court of Criminal Appeal decisions that have illustrated the difficulties that may be experienced when sentencing an Aboriginal offender.
The so-called ‘Fernando principles’ set forth principles that may be relevant to the sentencing of an Aboriginal offender. The principles were intended to be indicative of some of the factors leading a person of Aboriginal background into offending behaviour, and as a consequence to be relevant for sentencing, rather than a comprehensive declaration of sentencing practice. The principles were considered by the NSW Law Reform Commission ‘to be accepted and applied in New South Wales’.
Determining when the principles are enlivened has proven to be a contentious issue. It has been suggested that attempts to define and limit contemporary Aboriginal experience fail to appreciate that ‘every Indigenous person [whether or not from a deprived background or from a rural/remote area] is a member of a visible racial minority in a community that is often not tolerant of racial minorities’.
The Council initiated an examination of the issue by considering over 100 cases in which the principles have been discussed, as well as recommendations made in respect of the sentencing of Aboriginal offenders in the past.
The Council is currently working with the Public Defenders Office and the Office of Director of Public Prosecutions to examine these issues further.
Annual Report - Sentencing trends and practices 2008-2009
The Council monitors, and reports annually to the Attorney General on sentencing trends and practices, including the operation of the standard non-parole periods and guideline judgments.
The reports commonly detail any changes to the membership of the Council and contain information on the activities in which the Council has been engaged during the period under review, particularly those conducted as part of its educative function. Updates of the projects the Council has completed in any given year are also described and new references and initiatives discussed. The reports also include details of significant sentencing issues that have arisen over the past year, including case law, legislative amendment and useful publications.
Arson - Review of laws
In February 2009 the Premier announced that the NSW Attorney General’s Department Criminal Law Review Division would undertake a review of the laws relating to arson, in the light of the recent New South Wales and Victorian bushfires. The review was to examine the type of sentences that have been imposed for arson offences, the standard minimum sentences given and their range, and include a comparison of interstate and other jurisdictional practices.
The Council has provided advice to the Attorney General’s Department as part of this review.
Fines - The effectiveness of fines as a sentencing option: court-imposed fines and penalty notices
In November 2005, the then Attorney General, the Hon Bob Debus MP, asked the Council to consider the effectiveness of fines as a sanction, and the consequences for those who do not pay them. The Council was specifically directed to examine the use of driver license sanctions to enforce fine default, and to explore any possible connection to increased imprisonment rates arising out of ss 25 and 25A of the Road Transport (Driver Licensing) Act 1998 (NSW).
The Council’s Interim Report and an accompanying monograph ‘Judicial Perceptions of Fines as a Sentencing Option: A Survey of NSW Magistrates’, were published in August 2007. Work on the final report is continuing.
Provisional sentencing for children
In its 2005–06 Report on Sentencing Trends and Practices the Council identified as an area of potential future research the difficulties that arise in the application of current sentencing principles when determining the appropriate length of a sentence for the small number of children who commit serious offences such as murder. Concerns have been expressed relating to the uncertainty in making diagnostic and prognostic assessments regarding the development of the child at the time of sentence, as is required as part of the sentencing process.
The Sentencing Council embarked on a review of the issues identified by Wood CJ in R v SLD [2002] NSWSC 758, specifically, whether the Court should have the ability to sentence an offender initially to be detained at her Majesty’s pleasure, with provision for review and re-sentencing at a later date, for example at the age of 21 years, or after five years in custody.
The Council’s views will be published in 2009.
Public attitudes towards sentencing
In October 2007 the Attorney General requested that the Council conduct a survey of the public perceptions of sentencing in accordance with the following terms of reference:
- the level of public confidence in the various aspects of the criminal justice system (bringing people to justice, meeting the needs of victims of crime, respecting the rights of people accused of crime, dealing with cases promptly and efficiently, punishing offenders); and
- whether those who lack confidence tend to be less well informed about crime and criminal justice.
The Council undertook the reference in partnership with the Bureau of Crime Statistics and Research (BOCSAR). Based on the British Crime Survey, a survey was designed to ascertain the extent to which the public is uninformed about sentencing and to identify ways in which it might be more effectively informed. A joint Council-BOCSAR bulletin, Public Confidence in the New South Wales Criminal Justice System, was published in November 2008.
The Council has produced a publication examining promising methods that can be used to educate the public about sentencing and the criminal justice system. The monograph will be released in July 2009.
Public forums on crime and sentencing
The Council is dedicated to strengthening public understanding and confidence in the sentencing process, and participates in education projects on sentencing issues.
A report by the Sentencing Council and the Bureau of Crime Statistics and Research (BOCSAR ) found that that many people were unclear about the criminal justice system and wanted to know more.
To address this need, the NSW Government announced that a series of public forums would be held at various locations across the state. Entitled The Process of Justice, these free community forums will look at how a criminal sentence is decided. The first of the forums was held in Parramatta on Tuesday 7 April, and the second forum took place at Campbelltown on 20 May 2009.
The Council has participated in both forums. Council member and Victims of Crime Assistance League (VOCAL) Vice-President, Howard Brown spoke at both forums on the reasons why victims of crime and the general public need to be better informed about the sentencing process. The Chair of the NSW Sentencing Council, former Supreme Court judge James Wood AO QC, provided the Campbelltown forum with an overview of the sentencing process in NSW.
Address by the Chair of the NSW Sentencing Council, former Supreme Court judge James Wood AO QC (WORD, 76KB)
Media Release: Justice experts to lead public forums on crime and sentencing (PDF, 21KB)Reductions in penalties at sentence
The Council is currently examining discounts on sentence in accordance with the following terms of reference:
1. the current principles and practices governing reductions in sentence,
2. how factors leading to a discount on sentence are taken into account, particularly where several factors must be considered at the same time,
3. the application of the totality principle to offenders being sentenced for multiple offences,
4. the effect of charge negotiation,
5. the use of a ‘Form 1’ to deal with additional offences, and
6. any other relevant matter.
The review does not include the Criminal Case Conferencing trial, as this is being considered through a separate process.
The Council is to report to the Attorney General by August 2009.
Sexual assault offences - Penalties relating to sexual assault offences in New South Wales
In October 2007 the Attorney General requested that the Council examine penalties relating to sexual assault offences in New South Wales. Part One (volumes 1 and 2(statistics) was published in October 2008. (Volume 3) of the Sexual Offences reference examines alternative sentence regimes incorporating community protection through extended supervision, and possible alternative responses to address repeat offending committed by serious sexual offenders. It also examines preventive detention schemes in other jurisdictions, such as England, France, Germany and the Netherlands.
The Council’s report has been provided to the Attorney General for consideration.
Standard non-parole periods and guideline judgments
In March 2009 the Attorney General requested that the Council examine standard non–parole periods and guideline judgments, in accordance with the following terms of reference:
1. Identification of any sexual offences not contained in the Table of Standard Non-parole Periods (SNPPs), which possibly should be included at a later date;
2. Standardisation of SNPPs for sexual and other offences within a band of 40-60 per cent of the available maximum penalty, subject to the possibility of individual exceptions, by reference to an assessment of the incidence of offending and special considerations relating thereto;
3. Identification of potential additions to the SNPP scheme, involving the level or levels at which SNPPs might be appropriately set;
4. Establishment of a transparent mechanism by which a decision is made to include a particular offence in the Table, and by which the SNPP is set; and
5. Identification of sexual offences that might justify an application for a guideline judgment.
Submissions are requested by July 30, 2009 and should be directed to to:
The NSW Sentencing Council GPO 6 SYDNEY NSW 2001 or via email: sentencingcouncil@agd.nsw.gov.au
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