Opening of Law Term Dinner 2002
OPENING OF LAW TERM DINNER
NEW SOUTH WALES LAW SOCIETY
PARLIAMENT HOUSE, SYDNEY
29 JANUARY 2002
The sentencing of convicted criminals is one of the most important tasks performed by the judiciary. Sentencing engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.
I venture to suggest that in all of recorded history, there has never been a time when crime and punishment has not been the subject of debate and difference of opinion. This is not likely to change in the future. The problem may be said to have started in the garden of Eden when God called Adam to account for his transgression. He, of course, blamed his wife. She – more imaginatively - blamed the snake. All three were the subject of condign punishment. For millennia, theologians and others have been debating whether the punishment has had the desired effect of general deterrence and what are mankind’s prospects of rehabilitation.
I am concerned that public confidence in the administration of justice and public respect for the judiciary, is diminished by reason of ignorance about what judges actually do in terms of the sentences that are imposed. Plainly there are occasions when a particular sentence attracts criticism and that criticism is reasonably based. What concerns me is that such cases appear to be widely regarded as typical, when they are not.
The Chief Justice of Australia, the Honourable A. M. Gleeson, has recently summarised the result of public opinion polls about sentencing not just in Australia but also in the United Kingdom and North America:
“… when people are asked whether they think the sentences imposed by judges are too lenient, or too severe, or just about right, most say that the sentences are too lenient. However, when they are then given the facts of individual cases, and asked what sentences they themselves would have imposed, a majority come up with sentences that are more lenient than sentences that were actually imposed by judges. The same results have shown up in similar surveys in other countries. When people are questioned in more depth, and are made to think more closely about an issue, their responses change A. M. Gleeson AC “Valuing Courts” 2001 13 Judicial Officers Bulletin 49 at 51.
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There is a considerable body of research which indicates that with respect to crime and, particularly with respect to sentencing, there is a significant disparity between what actually happens and what a majority of the public believes happens. Research shows, for example, that the public believes that crime is going up, when in fact it is going down and that the amount of violent crime is greater than it actually is. Members of the public believe that they are much more likely to be the victim of crime than the objective facts suggest. Many believe that judges generally sentence much more lightly than they actually do.
Detailed research in many nations, including Australia, has shown that when the full facts of particular cases are explained, the public tends, to a very substantial degree, to support the sentences actually imposed by judicial officers or, at least, to express the opinion that the sentences were lenient to a significantly lesser extent than answers to general questions about judicial leniency in sentencing, would suggest See the references collected in J. J. Spigelman “Sentencing Guideline Judgments” (1999) 73 ALJ 876 at fn 23-28.
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This is not an area in which there can ever be unanimity. The most that can be expected is that when the facts of particular cases are known, the proportion of the public which believes that the judge’s sentence was too high, is of the same order of magnitude as the proportion which believes that the judge’s sentence was too low. That is in fact what research studies, in which the public knows or is informed of details of the case, establish to in fact be the case. There is a very real discrepancy between public perception and reality with regard to sentencing practice. The integrity of our judicial system requires us to do what we can to minimise that discrepancy.
In this context I was pleased to read the Bureau of Crime Statistics and Research report on Trends in Sentencing in New South Wales Criminal Courts: 1990-2000, released last week Crime and Justice Bulletin Number 62.. That report made it clear that the criminal courts have, over the course of that decade, increased the severity of sentences imposed for serious offences. The percentage of convicted offenders sent to prison has gone up for offences like assault, sexual assault against children, robbery, break and enter, fraud. This has occurred in a context where public opinion supporting increased sentences has been reflected in various statutory changes to the applicable sentencing regimes, including reclassification of offences and increases in maximum penalties.
There are occasions when public criticism of specific sentences for leniency is justified. These criticisms are not always able to be rectified on appeal. There are significant inhibitions on the Crown initiating appeals on sentence at all. When they are instituted, appellate courts approach such appeals with the application of the principle of double jeopardy and manifest self restraint from interfering with the exercise of the sentencing discretion. Nevertheless, the appeal process does ensure that both inadequate and excessive sentences are generally changed.
The occasional inadequate sentence receives much more significant public exposure through the media than the continuing, day in and day out, imposition of sentences that are generally regarded as correct and, for that reason, pass without comment. It is an invariable rule that when a first instance decision that has attracted howls of controversy is overturned on appeal, the appellate decision receives virtually no publicity.
In such a context, judges are entitled to feel a little irritated when, although they apply themselves diligently to a difficult task, they are frequently accused collectively of excessive leniency and of being out of touch.
There is an important task of educating the public about the actual level of sentences imposed. The media, with its understandable focus on high profile cases and controversy, fails to inform the public about what judges are actually doing in the normal line of case. There are not adequate alternative means of public information. What is required is a widespread recognition, on the part of the public, that it is only getting part of the story.
There is a wide spectrum of legitimate opinion about appropriate levels of punishment for criminal offences. There have been periods in the history of all societies when the public believed in the need for the imposition of severe punishment. In the past, that has taken the form of death, mutilation, whipping and other forms of infliction of pain. In our own times the call is for significant periods of incarceration.
It is, of course, impossible for courts to satisfy all sections of the community with respect to a matter like sentencing, about which there are such significant divisions of opinion within the community. There is a distinct view held by some that sentencing should be more severe than it in fact is, at least for certain kinds of offences. In the broad spectrum of community opinion those who have that view are often balanced by another distinct view, that sentences at the present level of severity, let alone any increased level of severity, do not serve what that group believes to be the proper function of punishment: deterrence or rehabilitation.
The judiciary cannot satisfy both points of view. The permissible range for the reasonable exercise of the sentencing discretion on the part of the judiciary is necessarily narrower than the broad range of opinion held by significant sections of the community. The reason for this is that the core value of fairness in the administration of criminal justice requires the range to be narrow, so that criminal justice is seen to operate reasonably equally.
Inevitably there will be differences on the part of judges in terms of their philosophical approaches to the exercise of the sentencing task. Nevertheless, it would fundamentally undermine public confidence in the administration of criminal justice if it became widely believed that the result was a complete lottery based on who the judge was. It is, I believe, essential for the maintenance of public confidence in the administration of justice that the outcomes of similar cases are, within reasonable bounds, the same. Consistency in sentencing must be more than empty rhetoric. That is a primary task of the Court of Criminal Appeal.
The range of permissible judicial discretion is much narrower than the range of actual public opinion. For that reason, the outcome of the judicial sentencing task will, necessarily, not be acceptable to some segment of public opinion. It is, of course, permissible for that segment to seek to have its opinion prevail by statutory change. Unless this happens, however, it is important for the legitimacy of our judicial institutions, that any disaffected segment of the public appreciate that judges operate within constraints that do not permit decisions at either extremity of public opinion.
The reason why debate about sentencing will know no rest, is because the ineluctable core of the sentencing task is a process of balancing overlapping, contradictory and incommensurable objectives. It has always been thus. Requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice do not point in the same direction. Specifically, the requirements of justice, in the sense of just desserts, and of mercy, often conflict. Yet we live in a society which values both justice and mercy.
Centuries of practical experience establishes that the assessment of the multiplicity of factors involved in the sentencing task is best served by the exercise of a broad discretion. That same practical experience, over centuries, suggests that this difficult process of weighing and balancing all of the relevant considerations is best done by an independent, impartial, experienced, professional judge. It is not best done on talkback radio.
The existence of sentencing discretion is an essential component of the fairness of our criminal justice system. Unless judges are able to mould the sentence to the circumstance of the individual case then, irrespective of how much legislative thought has gone into the determination of a particular rule or regime, there will always be the prospect of injustice in the individual case.
The history of the imposition of severe punishment in the past has been that at a certain level of severity, the punishment becomes tolerable no longer. It comes to be regarded by many to be virtually as repulsive as the crime. There appears to be a natural oscillation in the balance of outrage in such matters.
Significant issues have been debated about legislative interference with the exercise of the sentencing discretion, particularly in Western Australia and the Northern Territory. It is not an issue wholly absent from the New South Wales justice system. With respect to certain driving offences there is statutory provision for automatic suspension of a driving licence. This can operate in an exceptionally harsh way, for example to a farmer who lives many miles from the nearest town, with no possibility of public transport or support from another family member. Judges are placed in the invidious position of either refusing to record a conviction or imposing a penalty which operates harshly. Surely provision could be made for the truly exceptional case.
There is nothing new about the debates we have had in recent times in this regard. In 1883 the New South Wales Parliament passed legislation which created a sentencing structure with five distinct steps or categories, including both minimum and maximum sentences. The scheme led to palpable injustices, so that the Sydney Morning Herald editorialised on 27 September 1883:
“We have the fact before us that in a case where a light penalty would have satisfied the claims of justice, the judge was prevented from doing what he believed to be right, and was compelled to pass the sentence which he believed to be excessive, and therefore unjust, because the rigidity of the law left him no discretion.”
The scheme was abandoned by statute a year after its introduction. As the philosopher George Santayana put it:
“Those who forget the past are condemned to repeat it.”
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Over recent years I have taken the opportunity at this dinner to inform the profession about the operation of the Supreme Court. It is convenient to do so again.
Over the course of the year 2000 the Court has made substantial progress with its backlog, notwithstanding an increase of filings.
In the Common Law Division civil filings increased from 4,177 in 2000 to 5,032 in 2001. However, the pending caseload as at 31 December of each of those years declined from 4,716 to 4,039. The number of criminal filings remained at the historically high levels of 127 and 126 in the respective years, but the number of cases pending as at 31 December fell from 97 cases to 82 cases.
In the Equity Division the pattern was similar. The number of filings increased from 4,478 in the year 2000 to 5,493 in the year 2001, but the case load pending as at 31 December fell from 3,291 to 2,914.
In the Court of Appeal the number of new cases increased from 483 in 2000 to 504 in 2001. However, there was a substantial fall in the number of pending cases as at 31 December, from 460 to 337.
In the case of the Court of Criminal Appeal there was a substantial increase in the number of filings from 867 in 2000 to 940 in 2001. In this case, alone, the Court was not able to reduce its backlog. The pending caseload as at 31 December increased from 750 to 767.
The Court of Criminal Appeal planned for a substantial reduction in the backlog over the year. This was frustrated by reason of the very substantial increase in the number of filings. However, there would have been no increase in the number of cases outstanding at the end of the year, if all the dates which the Court had made available for sittings of the Court of Criminal Appeal had been used. Because not enough appeals were ready to be heard, the Court found that it had to vacate several weeks of sittings. Steps have been taken to ensure that this does not happen again. I am reasonably confident that it will not.
The result of these developments is that the delay in the criminal list has been reduced very substantially already. I anticipate a significant reduction in delay in the Court of Appeal during this year. Subject to the rate of new filings, further progress is likely across the board.
At this dinner last year I announced that in every area of the Court there was no longer a holding list in the sense of a list of matters ready for hearing, but which could not be given a date. Over the course of 2001 that remained the case. All matters that became ready for hearing were immediately placed in call up lists and, in a short time, were offered a date. Clearly longer matters are not able to be accommodated as readily as short matters, but the position as I indicated it to be last year remained so over the course of the year and is likely to remain so for the next year.
Perhaps, the most significant change in 2001 was in the practice of the Common Law Division with respect to cases that exceed their time estimates. Until last year such cases were adjourned, usually for many months, with substantial costs imposed on all parties and on the Court. Primarily because of the availability of acting judges, such adjournments are no longer necessary. I regard that as a substantial improvement.
During the course of my address last year I noticed a certain degree of agitation, perhaps even an expression of disagreement, when I said that those who traditionally advise clients on the basis that it takes years to get a case on for a hearing to the Supreme Court should change their advice. I said it was no longer true and it is no longer true. For those practitioners who are capable of preparing their cases expeditiously, the Court is now in a position to reward them for their efficiency, to the advantage of their clients and the enhancement of their reputations. It is clear that over the course of 2001 better organised practitioners have taken advantage of this opportunity. Nevertheless, there remains a very large number of cases that should be ready for trial and are not.
As at 31 December in the Supreme Court there were over 1,000 cases in the Common Law Division and over 300 cases in the Equity Division which were filed more than two years ago and which are not ready for hearing. I accept that there are circumstances in which a delay of more than two years in preparing a case for trial can be justified. But the overwhelming bulk of these cases is not of that character.
I indicated last year that the legal culture in this State which accepted that it took years to get a case on for trial in the Supreme Court had to change. The better practitioners have adjusted to that change. But the culture has still not gone. I reiterate that the profession must accept that delays in excess of two years in preparing a matter for a first instance trial in the Supreme Court is no longer appropriate, in the usual case.
During 2001, the Court has focused its case management to ensure that there was a flow of cases ready to proceed. There has, at times, been a certain hand to mouth quality about the process of case management. Practitioners frequently express reluctance to take early dates for hearing when they are offered. The Court has become less and less tolerant of such a response. The uptake of cases from the pending caseload to the status of ready for hearing remains slower than desirable, particularly in the Common Law Division. So far the Court’s case management has been limited in the degree to which it overrides the wishes of the parties in terms of time for preparation, at least in the way those wishes are expressed by their legal representatives. Unless the flow of cases ready for hearing improves in the future, it may become necessary for the Court to override those wishes more and more frequently.
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