THE COURSE OF THE REFERENCE

1.1 On 12 April 1995, the Attorney General, the Hon Jeff Shaw QC, referred the reform of sentencing law to the Law Reform Commission.¹ The terms of reference² provide the basis for a comprehensive review of sentencing law in New South Wales. For the purposes of managing such a review, the Commission has divided the reference into three phases:³

• The first phase, to which this Report is directed, involves an evaluation of the general principles of sentencing law in New South Wales.
• The second phase will involve a review of the particular problems which arise in sentencing groups of offenders who require special consideration.
• The third phase will involve the review and rationalisation of the maximum penalties prescribed by statute in New South Wales.

1.2 The Commission began work on the first phase of the reference in July 1995. In April 1996 we issued a Discussion Paper on the general principles of sentencing law in New South Wales, entitled Sentencing (“DP 33”). We invited submissions on DP 33, particularly on the tentative proposals for reform which we put forward. We received over 50 written and oral submissions, a list of which appears as Appendix A to this Report. In addition, we consulted widely among relevant interest groups. A list of consultations appears as Appendix B to this Report. A public seminar on the Discussion Paper was held on 15 May 1996 in Law Week.

1.3 DP 33, over 500 pages long, contains a detailed consideration of the arguments for and against reform of various aspects of sentencing law in New South Wales. Many of these arguments are not repeated in this Report, especially where the tentative recommendations made received widespread support in the consultation process. For complete understanding of the Commission’s arguments, this Report must, therefore, be read in conjunction with DP 33.

DEVELOPMENTS SINCE DP 33

1.4 In the eight months that have elapsed since the publication of DP 33, several statutes relevant to the Commission’s sentencing inquiry have been enacted. They are:

• Crimes Amendment (Mandatory Life Sentences) Act 1996 which provides for mandatory life sentences in certain cases of murder and of trafficking in commercial quantities of heroin or cocaine. The Act commenced on 30 June 1996.
• Periodic Detention of Prisoners Amendment Act 1996, the principal object of which is to provide for the better operation of the periodic detention regime. Among other matters, the Act attempts to provide for the secure identification of prisoners; to ensure greater compliance with periodic detention orders; and to regulate leave requirements and the cancellation of orders of periodic detention. The Act commenced on 27 September 1996.
• Children (Community Service Orders) Amendment (Maximum Hours) Act 1996 which increases the maximum number of hours which persons may be required to perform under a children’s community service order. The Act commenced on 25 November 1996.
• Prisons Amendment Act 1996 which makes extensive changes to the Prisons Act 1952, and replaces outdated penal terminology. The principal Act is renamed the Correctional Centres Act 1952, and is so referred to in this Report.⁴ The Act commenced on 25 October 1996.
• Home Detention Act 1996 which establishes an independent legislative basis to provide for home detention as a means of serving a sentence of full-time imprisonment for a term of up to 18 months in certain specified cases. The Act received assent on 1 November, and as at 20 December 1996 has not been proclaimed to commence.
• Fines Act 1996 which consolidates the law relating to fines (including infringement notices) and introduces new enforcement mechanisms designed to reduce the incidence of fine default and ensure the prompt payment of fines. The legislation received Assent on 26 November 1996, and as at 20 December 1996 has not been proclaimed to commence.

1.5 In very recent weeks a further three Acts relevant to the Commission’s reference, originally introduced in May 1996 as cognate Bills,⁵ have been passed by Parliament, and another Bill introduced:

• Two, the Victims Rights Act 1996 and the Victims Compensation Act 1996, are cognate Acts. The Victims Rights Act 1996 establishes a statutory charter of rights for victims of crime, establishes a Victims of Crime Bureau and Victims Advisory Board, and gives the courts some discretion to receive victim impact statements at sentencing. The Victims Compensation Act 1996 repeals the Victims Compensation Act 1987 (NSW) and establishes a new regime of statutory compensation for victims of crimes of violence. The Acts received Assent on 2 December 1996. Commencement will be on a date to be proclaimed, with the exception of provisions in the Victims Compensation Act 1996 relating to claims for compensation made in the transitional period, which commenced on Assent.
• Sentencing Amendment (Parole) Act 1996,⁶ which renames the Offenders Review Board the “Parole Board”, and revises Parole Board procedures relating to parole of prisoners who are serious offenders; requires victim and State submissions to be taken into account by the Parole Board when determining parole and by the Serious Offenders Review Council when determining the security classification of offenders; and makes amendments to the composition of the Serious Offenders Review Council and the Parole Board. The Act received Assent on 16 December 1996 and was proclaimed to commence on 20 December 1996.
• Sentencing Legislation Amendment Bill 1996 which proposes to amend the Community Service Orders Act 1979 (NSW), the Children (Community Service Orders) Act 1987 and the Home Detention Act 1996 (NSW) with respect to civil liability arising from work performed by offenders under those Acts and related matters; and to make changes to the administration of community service orders.

1.6 In formulating the recommendations in this Report, the Commission has taken account, where relevant, of the new legislation.

THE COMMISSION’S APPROACH TO REFORM OF SENTENCING LAW

The necessity for wide judicial discretion in sentencing

1.7 In sentencing an offender, the court aims “to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be”.⁷ This involves a synthesis of all factors relevant to the offence and to the offender to produce an appropriate sentence.⁸ Guidance is provided by the purposes of punishment⁹ and by sentencing principles of the broadest kind.¹⁰ The whole exercise presupposes a wide judicial discretion. In DP 33 the Commission argued that the existence of a wide judicial discretion is essential to doing justice in the individual case¹¹ - a point which the Chief Justices of New South Wales,¹² Victoria¹³ and Western Australia,¹⁴ as well as the Lord Chief Justice of England,¹⁵ have recently felt it necessary to assert extra-curially. We, therefore, rejected any approach to the “reform” of sentencing law which would constrain the exercise of judicial discretion either by the codification of common law principles,¹⁶ the creation of sanction hierarchies,¹⁷ or the specification of tariffs (especially for terms of imprisonment) for each offence.¹⁸ The Commission strongly reaffirms this approach, which was supported in many of the submissions which we received¹⁹ and, overwhelmingly, in our consultations.

1.8 The importance which the Commission attaches to doing justice in the individual case does not mean that we are unmindful of the desirability of obtaining consistency in sentencing. While consistency is of particular importance in imposing sentences on co-offenders,²⁰ the principle is more generally applicable.²¹ The significance of a consistent approach to sentencing is undeniable whether the concern is with justice, equity, efficiency, effectiveness or cost benefit.²² The corollary of this is that like cases (that is similarly circumstanced offenders charged with similar offences) should not be subjected to punishment which reflects unwarranted disparity. The need for such an approach was succinctly identified by Justice Mason in Lowe v The Queen:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.²³

1.9 The reference to “the avoidance and elimination of unjustifiable discrepancy” highlights an issue that has troubled those concerned with sentencing reform both in Australia²⁴ and overseas²⁵ - the so-called problem of disparity. It is not any apparent disparity between such sentences which is of concern but rather unjustifiable disparity. This notion raises issues as to the extent of such disparity and its definition. Both are related. Both are controversial. If unwarranted disparity refers to an unacceptable discrepancy between sentences in “like cases” (that is, those imposed on similar offenders in similar circumstances), the characterisation of “like cases” becomes crucial. As one commentator has observed:

At one extreme, it could be said that the number of like cases is zero because no case is like any other with the corollary that each case should be given individualised treatment and that there is no such thing as unjustifiable disparity ... this is an opinion which is commonly expressed by members of the judiciary.²⁶

1.10 On the other hand, if, as to the Commission seems preferable, it is possible to extract similar features relating to offence and offender which allow the identification of like cases, and a corresponding obligation to treat such cases with the consistency of approach to which Justice Mason refers, two further tasks arise:

• isolating the degree to which such a problem exists; and
• identifying an appropriate legal response to it.

1.11 As to the first, there is some difficulty in establishing empirically the existence of such disparity. There is little Australian research. Those who seek to establish unwarranted disparity must identify systematic and substantial variation in sentences for very similar cases.²⁷ The evidence relied on is often anecdotal and impressionistic.²⁸ One recent NSW study claimed that substantial disparities existed between the sentencing behaviour of two groups of District Court judges.²⁹ In the Discussion Paper, the Commission took issue with the general inferences of disparity sought to be drawn.³⁰ In a submission in response, Dr Weatherburn challenged the Commission’s analysis of his report.³¹ However, the Commission remains of the opinion that it is not possible to draw a reliable conclusion of general disparity, such as that apparently shown in the District Court, from that between two small groups of judges at the extremes of harshness and leniency or to distribute randomly case characteristics other than offence and plea so that relevant matters of importance are ignored.

1.12 The Commission is, of course, aware of the considerable body of literature in other jurisdictions purporting to establish widespread disparities in sentencing practice in relation to the “same case”.³² A multiple response by judicial officers to precisely the same case can, of course, only be tested in a hypothetical situation.³³ When this has been done, substantial disparities have been identified. This has occurred, for example, in sentencing exercises conducted at magistrates’ conferences in Australia.³⁴ Although such evidence points towards the existence of some disparity, it cannot be inferred that widespread unjustifiable disparity exists. In the Commission’s view, unjustifiable disparity is not necessarily established by a different sentencing outcome for similar cases. Our view is fortified by the High Court’s comment in Bugmy v The Queen that “uniformity cannot be pressed too far”.³⁵

1.13 Despite the understandably equivocal evidence as to unwarranted disparity, the Commission is prepared to assume that it exists to some degree and that it is appropriate to seek to minimise, if not eliminate, it for the purpose of addressing the question of the appropriate legal, or other, responses to the problem. Reform inquiries have suggested a variety of means of guiding or controlling discretion in attempts to reduce disparity.³⁶ The Victorian Sentencing Committee recognised criticisms of sentencing disparities resulting from “a subjective and unstructured approach but was unwilling to contemplate recommending the introduction of sentencing grids, guidelines, tariffs or fixed penalties which had been tried in other jurisdictions”.³⁷ Instead, the Committee opted for clearly defined sentencing objectives; identification of mitigating and aggravating factors; the means of determining offence seriousness; the power to hand down guideline sentences; and a sanction hierarchy.³⁸ The Australian Law Reform Commission adopted a similar approach but did not favour guideline sentences or a sanction hierarchy.³⁹ In the United States, the experience with sentencing guidelines in various forms has enjoyed mixed success. The experiment with strict, detailed federal guidelines was nothing short of a disaster and attracted virtually unanimous judicial and academic condemnation.⁴⁰ The context of sentencing in the United States is very different from that in Australia,⁴¹ and resort to such techniques has been consistently rejected by judicial officers in Australia as inappropriate to the Australian context.⁴²

1.14 The Commission has given careful thought to the various suggested techniques for guiding judicial discretion and reducing disparity. We remain convinced that what is important is that courts should adopt a common approach to sentencing having regard to its purposes⁴³ and to relevant applicable principles of common law and statute.⁴⁴ In fixing the quantum of sentence befitting the circumstances of the particular case, courts should have regard to previous cases which are similar in terms of the gravity of the offence and the circumstances of the particular offender in order to provide an indication of the appropriate sentencing range.⁴⁵ The quest is not one for identical sentences for like cases. The key concerns, in our view, are consistency of approach and outcomes which are not beyond the acceptable range. The Commission agrees with the approach adopted by Justice Hunt in R v Warfield:

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence ... which merely forms part of that range.⁴⁶

Whether or not the sentence falls within the appropriate range is, of course, subject to appellate review which may be initiated by either the accused or by the Crown.⁴⁷ There is no doubt that appellate review has been a most significant factor in setting guidelines for sentencing courts and reducing inappropriate disparity.

1.15 The ascertainment of the appropriate range will be enhanced in time by two further considerations. There is now available to all sentencing courts, on a comprehensive basis, information about sentencing patterns through the Judicial Commission’s Sentencing Information System.⁴⁸ Although these patterns do not, and should not, limit sentencing discretion, the Commission considers that the greater use of this information, which will inevitably come with the expansion of the database, will enhance consistency.⁴⁹ Further, the Commission is of the view that the articulation of reasons for sentence is a crucial part of the development of a cohesive sentencing jurisprudence. Wide discretion which, properly, allows individualisation and a broad choice of rationales for punishment should be accompanied by accountability. In our view this is best achieved by a clear statement from the sentencing court as to the sentencing rationale chosen, the relevant factors and the reasons for adopting them. This makes the position clear to the offender, improves community and media understanding of the process (including apparent superficial inconsistencies) and provides an unequivocal platform for appellate review.

The incidence of imprisonment in New South Wales

1.16 In DP 33 the Commission expressed concern about the incidence of imprisonment in New South Wales⁵⁰ (which has one of the higher rates of imprisonment in Australia)⁵¹ and of the length of time actually served by convicted persons in prison.⁵² In our view, too much use is made of imprisonment at the bottom end of the scale. Although there are, undoubtedly, cases where it is appropriate to sentence an offender to a short term of imprisonment, such cases ought to be exceptional. We therefore recommend that a judicial officer who intends to impose a sentence of full-time imprisonment of six months duration or less must provide reasons justifying the decision to do so, including an explanation of why some other lesser forms of punishment are not appropriate in the circumstances.⁵³ This recommendation is intended to further the common law principle, recognised in relation to summary matters in s 80AB of the Justices Act 1902 (NSW), that imprisonment is the punishment of last resort.⁵⁴ We hope that its implementation will reduce the incidence of imprisonment in New South Wales⁵⁵ and result in the greater use of other punishments appropriate in all the circumstances of a particular case.⁵⁶

1.17 At the other end of the scale are serious offences in respect of which some sections of the media mount a continuous campaign for harsher and longer sentences. In doing so, “the popular press has tended to resonate expressions of opinion that are more noteworthy for a simplistic and unequivocal advocacy of retributive punishment than a reflective consideration of the more complicated interaction between justice for the individual and the public good”.⁵⁷ The Commission does not regard this media litany either as evidence of sentence leniency or as indicative of community concern about the lack of severity of sentences.⁵⁸ Our view is reinforced by the almost invariable failure of media reports of court proceedings to achieve practical accuracy. In DP 33, we also pointed out the pitfalls involved in the ascertainment of public perceptions of appropriate sentence ranges.⁵⁹ A good illustration is a recent survey by which the Victorian Government is purporting to gauge the views of the average Victorian about appropriate sentences in individual cases.⁶⁰ In our view, leaving aside all concerns about the lack of authentication of the survey,⁶¹ it seems to require responses to inadequate reports of a small and unrepresentative sample of hypothetical sentencing cases.⁶² On any rational basis, it is impossible to accept that any useful conclusions could be drawn from such a survey.

THE PRACTICAL IMPLICATIONS

1.18 While the Commission has developed its arguments in DP 33 and in this Report by reference to principle, it is important to point out the practical implications, in terms of the cost to the community of longer sentences of imprisonment. In 1995-1996, the daily cost of full-time imprisonment per inmate was as follows:⁶³

Maximum security	$176.92
Medium security	$143.72
Minimum security	$104.34

1.19 The cost of periodic detention is much lower than that for full-time imprisonment. It is costed by calculation of two-sevenths of the cost of a minimum security inmate.⁶⁴ As at November 1996 this is approximately $30 per day. Each year the labour of periodic detainees in work programs contributes approximately $2.5 million value to the NSW community.⁶⁵

1.20 Both full-time and periodic imprisonment also involve substantial costs to the community in terms of capital outlays. In accordance with the Department of Corrective Services’ Capital Works Strategic Plan for 1996-2006 which has recently been finalised, the Commission has been advised that an investment program of more than $260 million is planned over this ten year period.⁶⁶ The figure does not include any sum for future regional or periodic detention centres.⁶⁷

1.21 The cost of non-custodial sentences is lower still. In 1996 the daily cost per person was calculated as:⁶⁸

Home detention	$30.00 69
Probation and parole supervision	$4.00
Community service orders	$3.50

On the other side of the balance sheet, the value to the community of the labour of those serving community service orders was estimated to be greater than $15 million in 1995.⁷¹

FOOTNOTES

1. The background to the reference is outlined in NSW Law Reform Commission, Sentencing (Discussion Paper 33, April 1996) (“DP 33”) at paras 1.1-1.9.

2. The terms of reference are set out on p iv. For comment on the terms of reference see DP 33 at para 1.10.

3. See DP 33 at paras 1.11-1.20.

4. The Act also replaces references to prisons, prisoners and prison officers with references to correctional centres, inmates and correctional officers respectively. This terminology generally has not been adopted in this Report.

5. Bills for each of these Acts were first introduced into the Legislative Council on 15 May 1996; the Victims Rights Bill 1996 and the Victims Compensation Bill 1996 remained cognate following withdrawal of the Sentencing Amendment (Parole) Bill 1996 on 17 October 1996.

6. Sentencing Amendment (Parole) Bill 1996 (No 2) was introduced on 30 October 1996, replacing in virtually identical terms the Sentencing Amendment (Parole) Bill 1996.

7. Webb v O’Sullivan [1952] SASR 65 at 66 per Napier CJ. See also Budget Nursery Pty Ltd v FCT (1989) 42 A Crim R 81 at 85 (NSW CCA).

8. R v Williscroft [1975] VR 292 at 300.

9. See DP 33 at paras 3.2-3.24.

10. See DP 33 at paras 3.25-3.44.

11. DP 33 at para 2.8, quoting G Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law Journal 112 at 119-120. Chapter 5 of DP 33 contains a discussion of some of the more important factors relevant to the offence and the offender which the court must take into account in sentencing.

12. Interview with Chief Justice Gleeson, Lateline (ABC Television, 28 May 1996).

13. Interview with Chief Justice Phillips, reported as “We Know Best, Says Top Judge” The Age, 28 August 1996 at 1.

14. Chief Justice David Malcolm, “General Framework of Sentencing Principles and the Role of the Court of Appeal”, Address to the Law Society of Western Australia, Forum on Sentencing and Criminal Law Issues, 5 August 1996 at 2-3.

15. “Howard’s Production Line Justice: Lord Chief Justice Taylor Condemns Minimum Sentences” The Times, 23 May 1996 at 20.

16. DP 33 at paras 2.7-2.12.

17. DP 33 at paras 9.9-9.10.

18. DP 33 at paras 6.51-6.66.

19. For example, Law Society of NSW, Submission (19 July 1996) at 23; W D T Ward, Submission (25 July 1996) at 2, 7; N R Cowdery, Submission (17 June 1996) at 2 (Response); M L Sides and Bar Association, Submission (24 June 1996) at 4 and 46.

20. See Lowe v The Queen (1984) 154 CLR 606; DP 33 at para 3.38.

21. See DP 33 at paras 3.39-3.40.

22. M Tonry, “Sentencing Reform Across Boundaries” in C M V Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995) at 268.

23. See Lowe v The Queen (1984) 154 CLR 606 at 610-611 (although the case was concerned with co-offenders, this statement was intended to be of general application). See also Griffiths v The Queen (1977) 137 CLR 293 at 326, 327 per Jacobs J; R v Oliver (1980) 7 A Crim R 174 (NSW CCA); R v Visconti [1982] 2 NSWLR 104 (CCA).

24. Australian Law Reform Commission, Sentencing (ALRC 44, 1988); Victorian Sentencing Committee, Sentencing: Report of the Victorian Sentencing Committee (Attorney General’s Department, Melbourne, 1988); R Fox, “Controlling Sentencers” (1987) 20 Australian and New Zealand Journal of Criminology 218; C Corns, “Destructuring Sentencing Decision-Making in Victoria” (1990) 23 Australian and New Zealand Journal of Criminology 145; A Freiberg, “Sentencing Reform in Victoria” in C M V Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995); G Zdenkowski, “Sentencing: Problems and Responsibility” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1980s (Butterworths, Sydney, 1986).

25. J Hogarth, Sentencing as a Human Process (University of Toronto Press, Toronto, 1971); M E Frankel Criminal Sentencing: Law Without Order (Hill and Wang, New York, 1973); A Partridge and W B Eldridge (eds), The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (Federal Judicial Center, New York, 1974); M Tonry and N Morris, “Sentencing Reform in America” in P R Glazebrook (ed), Reshaping the Criminal Law (Stevens and Son, London, 1978); A Ashworth, Sentencing and Penal Policy (Weidenfeld and Nicholson, London, 1983); C M V Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995).

26. G Zdenkowski, “Sentencing: Problems and Responsibility” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1980s (Butterworths, Sydney, 1986) at 218. On this view statistics provide no convincing evidence of sentence disparity: see DP 33 at para 2.17. See also Women Lawyers’ Association, Submission (17 June 1996) at 3; M L Sides and Bar Association, Submission (24 June 1996) at 5. Compare D Weatherburn, Submission (16 August 1996) at 2-3. See also critique by D Weatherburn and B Lind of the lack of enthusiasm of the NSW Court of Criminal Appeal for sentencing statistics in R v MacKenzie (NSW CCA, No 60448/93, 15 December 1993, unreported): D Weatherburn and B Lind, “Sentencing Disparity, Judge Shopping and Trial Court Delay” (1996) 29 Australian and New Zealand Journal of Criminology 147 at 162.

27. See DP 33 at para 2.17.

28. Green at 113-115; Fox at 223. For a summary of Canadian research, see J Roberts, Empirical Research on Sentencing (Canadian Sentencing Commission Research Report 3) (Department of Justice, Canada, 1988) at 15-18.

29. D Weatherburn, Sentence Disparity and Its Impact on the NSW District Criminal Court (NSW Bureau of Crime Statistics and Research, Report 34, 1994).

30. See DP 33 at para 2.17.

31. D Weatherburn, Submission (16 August 1996) at 2-3.

32. J Hogarth, Sentencing as a Human Process (University of Toronto Press, Toronto, 1971). See also M E Frankel, Criminal Sentencing: Law Without Order (Hill and Wang, New York, 1973); A Partridge and W B Eldridge (eds), The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit, (Federal Judicial Center, New York, 1974); M Tonry and N Morris, “Sentencing Reform in America” in P G Glazebrook (ed), Reshaping the Criminal Law (Stevens & Sons, London, 1978) at 434, 437-438.

33. Absent sentencing courts constituted by more than one judicial officer. Although such an approach has been suggested from time to time, it is not regarded as feasible or desirable.

34. See K Anderson, “The Role of the Magistrate in the Sentencing Process” in I Potas (ed), Sentencing: Problems and Prospects (AIC and ALRC, Canberra, 1986); N J H Milson, Submission (3 July 1996). See also University of Sydney, Institute of Criminology, Sentencing: Part I, Fitness to Plead (Proceedings No 1, Government Printer, Sydney, 1967) at 83; University of Sydney, Institute of Criminology, Sentencing Project: Part II, Probation (Proceedings No 10, Government Printer, Sydney, 1979); University of Sydney, Institute of Criminology, Sentencing Project: Part III, Parole of Prisoners Act 1966 (Proceedings No 11, Government Printer, Sydney, 1976); University of Sydney, Institute of Criminology Sentencing (Proceedings No 35, Government Printer, Sydney, 1978).

35. Bugmy v The Queen (1990) 169 CLR 525 at 538 per Dawson, Toohey and Gaudron JJ. Thus, while offenders may themselves regard “unfairness” in sentencing as related to perceived inconsistency, this needs to be balanced against “a contradictory concern held by most offenders that their case should be looked at in its particular detail and all the mitigating factors allowed for”: see D Indermaur, “Offenders’ Perceptions of Sentencing” (1994) 29 Australian Psychologist 140 at 143.

36. See Fox (1987); Ashworth (1983).

37. A Freiberg, S Ross and D Tait, Change and Stability in Sentencing: A Victorian Study (University of Melbourne, 1996) at 232.

38. Freiberg, Ross and Tait at 232.

39. See Australian Law Reform Commission, Sentencing (ALRC 44, 1988).

40. A N Doob, “US Sentencing Commission Guidelines” in C M V Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995); M Tonry, “Sentencing Reform Across Boundaries” in C M V Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995). See DP 33 at paras 6.51-6.64.

41 See for example Massachusetts Sentencing Commission, Report to the General Court (April, 1996). In January 1996, more than 21,000 prisoners were housed in gaols operating at over 140% of design capacity; 40% were sentenced to terms less than 6 months. Minimum mandatory sentences (capable of being departed from with justification) apply, eg 30 days for performing unlicensed television or radio repairs, 10 days selling uncooked lobster, 1 month selling liquor to an intoxicated person, 1 year for trespass in a building by a tramp.

42. See Judicial Officers Survey in Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) Appendix B.

43. N J H Milson, Submission (3 July 1996) at 1-2.

44. For the view that this achieves insufficient uniformity in sentencing, see D Weatherburn, “Sentencing Principles and Sentence Choice” (1987) 11 Criminal Law Journal 255; D Weatherburn and B Lind, “Sentence Disparity, Judge Shopping and Trial Court Delay” (1996) 29 Australian and New Zealand Journal of Criminology 147.

45. See R v Warfield (1994) 34 NSWLR 200 at 207 (CCA); R v Ellis (1993) 68 A Crim R 449 at 461 (NSW CCA). Consider also Bugmy v The Queen (1990) 169 CLR 525. And see DP 33 at paras 5.124-5.125.

46. R v Warfield (1994) 34 NSWLR 200 at 207 per Hunt CJ at CL, with whom McInerney and James JJ agreed.

47. DP 33 at paras 6.4-6.9.

48. See DP 33 at paras 6.11-6.20.

49. See DP 33 at para 6.26. The Commission remains concerned at the omission from the statistics of CCA decisions: DP 33 at para 6.17. At present the database is, for many less common offences, too small to provide useful guidance.

50. DP 33 at para 4.4.

51. DP 33 at para 4.2. In June 1994, 6,409 persons were serving full-time custodial sentences in NSW, more than 1,000 were in maximum security, about 1,000 were in medium security and approximately 4,000 were in minimum security: see New South Wales, Department of Corrective Services, Annual Report 1993/94 at 3. In June 1995, there were approximately 6,384 persons in full-time custody, of which 1,694 males and 5 females were in maximum security; 1,525 males and 205 females were in medium security; and 2,760 males and 89 females were in minimum security: see New South Wales, Department of Corrective Services, Annual Report 1994/95 at 4. (The breakdown of the figures was provided to the Commission by the Research and Statistics Unit of the Department of Corrective Services).

52. DP 33 at paras 4.3-4.4, from which it is apparent that it is not easy to account for the length of prison terms in New South Wales.

53. See Recommendation 40.

54. See Parker v DPP (1992) 28 NSWLR 282 at 296 per Kirby P (with whom Handley and Sheller JJA agreed).

55. In 1995, the total of fixed and minimum terms of imprisonment under 6 months duration was 3,408 (or 60% of dispositions) in the Local Court: see New South Wales, Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1995 Tables 1.10 and 1.11.

56. See Austral News Pty Ltd, Submission [Telephone] (19 July 1996); G Fearon, Submission (25 August 1996), D Plagaro, Submission [Telephone] (7 September 1996). For punishments other than full-time imprisonment, see Chapters 3-7.

57. L Blom-Cooper and T Morris, “The Penalty for Murder: A Myth Exploded” [1996] Criminal Law Review 707.

58. See DP 33 at paras 2.22-2.30. See further, A Ashworth and M Hough, “Sentencing and the Climate of Opinion” [1996] Criminal Law Journal 776. Submissions tended to agree with this point: eg Law Society of NSW, Submission (19 July 1996) at 2; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 2. But see eg Confidential, Submission (22 May 1996) at 7-8; W D T Ward, Submission (25 July 1996) at 1.

59. DP 33 at paras 2.29-2.30.

60. The survey, “Your Say Your Verdict”, was published in the Herald Sun, 1 August 1996, at 49-56.

61. Among other things, the survey does not require respondents to identify themselves and allows respondents simply to specify the number of people who participated in completing the survey.

62. See G Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law Journal 112 at 116. Compare N J H Milson, Submission (3 July 1996) at 1-2.

63. See New South Wales, Department of Corrective Services, Annual Report 1995/96 Appendix 23. In 1991-1992 the daily cost of maximum security was $120.47, of medium security $112.23 and of minimum security $95.90.

64. Information supplied by Finance Division of Department of Corrective Services, June 1996.

65 S D’Silva, “Sentencing Options: Changes to the Periodic Detention Program” Paper presented at the NSW Bar Association CLE Seminar, 14 October, 1996 at 5.

66. Acting Commissioner L M Sulman, Department of Corrective Services, Letter to Commission (1 July 1996), and document “Law Reform Commission Survey” enclosed with letter; and advice to the Commission, 9 December 1996.

67. New periodic detention centres which are to open in 1996 and 1997 have already been budgeted for: see para 6.4 at n 14.

68. Advice from NSW Probation and Parole Service, November 1996. These are based on updated formulae reflecting actual time allocated to different functions of Departmental staff, with the exception of the home detention program which has been costed separately in relation to passage of the Home Detention Act 1996 (NSW), they are to some extent indicative figures only as Service expenditure is not fully apportioned among programs, and the inclusion of corporate support service overheads is uncertain.

69. Projected to operation of scheme at capacity. In the pilot project, one third of cost was spent on surveillance equipment.

70. Including fine default orders.

71. New South Wales, Department of Corrective Services, Annual Report 1994/95 at 3.