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The Law Reform C Ommission SENTENCING

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The Law Reform C Ommission SENTENCING The Law Reform C ommission Report No 44 SENTENCING Australian Government Publishing Service Canberra 1988 - Unless otherwise indicated this report reflects the law as at 1 February 1988 Note: References to the Crimes Act 1900 (NSW:ACT) are references to the Crimes Act 1900 of the State of New South Wales in its application to the Australian Capital Territory. @Commonwealth of Australia 1988 ISBN 0 644 06910 4 Commission Reference: ALRC 44 The Law Reform Commission is established by section 5 of the Law Reform Commission Act 1973 to review, modernise and simplify the law. The first members were appointed in 1975. The offices of the Commission are at 99 Elizabeth Street, Sydney, NSW Australia (Tel (02) 231 1733; VOCADEX (02) 223 1203). Printed in Australia by Pirie Printers P/L Fyshwick ACT Contents Paragraph Terms of Reference Participants Summary of recommendations Summary 1. The Reference The Reference 1 Terms of reference 1 Focus of report 2 Background 3 Federal offences and offenders 3 Structure of the federal criminal justice system 3 Federal offences 4 Federal offenders 5 Australian Capital Territory offences and offenders 6 Other reports and inquiries 7 Australia 7 Overseas 8 Outline of report 9 History of the Commission’s work 10 Interim report 10 Second phase 11 Suspension of work 11 Resumption of work 12 Consultation with the public 13 Publications 14 The Commonwealth Prisoners Act 1967 15 Related work 16 Child welfare 16 Aboriginal Customary Laws 17 Spent convictions 18 Young offenders study 19 Acknowledgements 20 2. The Commission’s approach Scope of chapter 21 Punishment and the criminal justice system 22 Structure of the criminal justice system 22 The law and its enforcement 22 Components of the criminal justice system 23 The purpose and effectiveness of the criminal justice system 24 iv/ Contents Effectiveness of the system as a whole 24 The requirement for effectiveness 25 What is a just criminal justice system? 26 Implications for punishment policy 27 Punishment to be linked to crime 27 Justice and the severity of punishment 28 Severity of punishment 28 Limits on severity 29 International and community values 30 Unacceptable punishments 31 Consistency of punishment 32 Consistency of punishment 32 Implications for available punishments 33 Consistency in the application of punishments 34 Other objectives 35 Other objectives 35 Rehabilitation and restitution 36 Incapacitation and deterrence 37 3. Reducing the emphasis on imprisonment A co-ordinated approach 38 Scope of chapter 39 Retention of imprisonment as a sanction 40 Reducing the emphasis on imprisonment and emphasising non- custodial sanctions 41 Need to reduce the emphasis on imprisonment 41 Reasons for reducing the emphasis on imprisonment 42 Terms of reference 43 Negative aspects of imprisonment 44 A harsh environment 44 A harsh environment 44 Prisons and drugs 45 The physical state of prisons 46 Costs and returns 47 The costs of imprisonment 47 Returns: the ability of prison to achieve the traditional ‘goals’ of punishment 48 The traditional ‘goals’ of punishment 48 Incapacitation 49 Rehabilitation for prisoners 50 General deterrence 51 Emphasising the severity of imprisonment 52 Attitude of Australian governments 53 Techniques for reducing the emphasis on imprisonment 54 Introduction 54 Prison as the last resort 55 Con tents/ v Crimes Act s 17A 55 Exclusion of serious offences 56 Offences punishable only by imprisonment 57 Eliminating prescribed minimum prison terms 58 Eliminating prison as a sanction for some offences 59 Rationalising the period of custodial orders 60 Need to rationalise the prescribed maximum periods of custodial orders 60 Need to reduce maximum periods 61 Recommendation: an overall review 62 The proposed set of maximum periods 63 Matching maximum terms to offences 64 Effect on sentences imposed 65 Cumulative sentences 66 Deferred and suspended sentences 67 4. Custodial orders Scope of chapter 68 The custodial order 69 Ruth in sentencing 69 Sentencing: a ‘charade’? 69 Remissions 70 The reason for community concern 71 Parole abolition? 72 Recommendation: the nature of a custodial order 73 Reforms to enhance ‘truth in sentencing’ 74 Introduction: terminology 74 Existing parole and early release schemes 75 Parole: Australian Capital Territory offenders 75 Parole: federal offenders 76 Release on licence 77 Federal offenders: ALRC 43 recommendations 78 Application of reforms 79 Reforms apply to all prisoners 79 Short-term prisoners and life prisoners 80 The impact of discretions 81 Combinations of discretions 81 Fixing the non-parole period 82 Prisoners sentenced to fixed terms: discretion to release 83 Prisoners sentenced to life imprisonment: discretions to fix non-parole period and to release 84 Release: temporary leave, day leave, etc 85 Remissions 86 Parole conditions 87 Parole conditions 87 Duration of conditions: the parole period 88 vi/ Con tents Revocation of parole 89 Present law 89 Recommendation: sanction for breach of conditions 90 Recommendation: consequences of commission of new offence 91 Recommendations: further parole where revocation 92 Recommendations: further parole where fresh offence 93 Implementation: Australian Capit al Territory 94 General 94 The parole authority 95 Australian Capital Territory Parole Board: procedural requirements 96 Implementation: federal parole 97 ALRC 43 confirmed 97 Eligibilty for release and discretionary release 98 Release on licence 99 Inter-related recommendations 100 5. Non-custodial sentencing options Introducfion 101 Non-custodial sentencing options 101 Increased emphasis 102 Nature of non-custodial options 103 The Commission’s approach 104 Diversity 104 Removing link with imprisonment 105 Current position 106 Fines 107 When can fines be imposed? 107 Important sanction 108 Problem areas 109 Lack of equity 109 Inadequate enforcement 110 Inflation 111 Recommendations 112 Independent sanction 112 Application for time to pay etc 113 Equity consider at ions 114 Recommendafion: means inquiry 115 Recommendation: submission in court 116 Recommendafion: setting amount 117 Dissent 118 Inflation 119 Community based sanctions 120 Nature of community based sanctions 120 Benefits and problem areas 121 Benefits of community based sanctions 121 Con tents/ vii ‘Net-widening’ 122 Link to imprisonment 123 Community service orders 124 Nature, availability and use 124 Recommendations 125 Attendance centre orders 126 Nature, availability and use 126 Recommendations 127 Periodic detention 128 Nature, availability and use 128 Recommendations 129 Home detention 130 Nature and availability of sanction 130 Recommendation 131 Victim-offender programs 132 National strategy for community based sanctions 133 Unconditional discharge 134 Conditional discharge 135 Recognizances 135 Court powers 136 Where no conviction 136 Where conviction 137 Probat ion 138 Recommendation: retention and flexibility 139 Recommendation: time limits 140 Ancillary orders 141 Combinations involving non-custodial sanctions 142 Review and new options? 143 Non-custodial sanctions: default 144 Existing law 144 Fine default 144 Civil enforcement 145 Default in community based orders 146 Breach of condition of discharge 147 Recommendations 148 Recommendations: re-sentencing on breach 148 Wilful and substantial breach 149 Default serious 150 Terms of offence 151 Dissent: The President 152 Dissent: Mr Zdenkowski 153 6. Determining the sentence Scope of chapter 154 Consistency 155 The need for consistency 155 viii/ Con tents Disparity in sentencing 156 Extent of disparity 156 Structural disparity 157 Present means of achieving consistency 158 Appellate review 158 Informal ‘tariffs’ 159 Books and conferences 160 Consistency and reasons for sentence 161 Reasons for sentence 162 Present requirements 162 Two issues 163 Recommendations 164 Reasons to be given 164 Understanding the effect of the sentence 165 Consistency and relevance 166 Matters relevant to sentencing 167 Present law: no statement of what facts are relevant 167 Sentencing practice 168 Categories of information presently used 168 ‘Aggravating’ and ‘mitigating’ factors 169 Recommendations 170 List of facts relevant to sentencing 170 Dissent 171 Two controversial matters 172 ‘Discounts’ for guilty pleas and providing information 173 ‘Discount’ on sentence for a plea of guilty 173 Dissent 174 Providing information to the authorities 175 Matters irrelevant to sentencing 176 Present law 176 Recommendations 177 Generally 177 Dissent 178 Parole, remissions and other release policies 179 Plea of not guilty 180 Prevalence of the offence 181 Dissent 182 Preserving discretion 183 Evident&y matters 184 Introduction 184 The evidence by which relevant facts are to be proved: the present law 185 Imposing the laws of admissibility 186 Standard of proof 187 Present law 187 Recommendation 188 Contents/ ix Reports 189 Police antecedents and pre-sentence reports: problem areas 189 Recommendations 190 Procedural matters 191 Victims and sentencing 191 The victim: participation in sentencing process 191 Victim impact statements 192 Role of the prosecution 193 Appeals 194 Implement ation 195 Special categories of offenders Scope of chapter 196 Offender groups covered 196 Aboriginal offenders 197 Corporate offenders 198 Defence force offenders 199 Mentally ill and intellectually disabled offenders 200 Mental illness, intellectual disability and the criminal justice system 200 Definition 201 The sentencing hearing 202 Taking mental illness and intellectual disability into account 202 Pre-sentence reports
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