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Issues Paper 29 Sentencing of Federal Offenders Table of Contents

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Issues Paper 29 Sentencing of Federal Offenders Table of Contents Issues Paper 29 Sentencing of Federal Offenders Table of Contents Making a submission 3 Terms of Reference 5 Participants 7 List of Questions 9 1. Introduction to the Inquiry 21 Background to the Inquiry Scope of the Inquiry Changes to the sentencing landscape Organisation of this Issues Paper Process of reform 2. Federal Offences and Federal Offenders 37 Commonwealth criminal law Trends in federal offences Trends in federal criminal penalties Trends in federal prosecutions Trends in federal offenders in prison Implications for the sentencing of federal offenders 3. Legal and Institutional Framework 53 International context Historical and constitutional framework Investigation of federal crime Prosecution of federal offences Adjudication of federal offences by state and territory courts Adjudication of federal offences by federal courts Sentencing of federal offenders Imprisonment and punishment of federal offenders 4. Location of Crime and Punishment 75 Introduction Location of court proceedings Location of punishment Transfer of prisoners Transfer of parole orders Transfer of alternative sentences International transfer of prisoners 5. Equality in the Treatment of Federal Offenders 85 Introduction Constitutional constraints? The policy choice Reconsidering the policy choice 6. History and Critique of Part IB 95 Law and practice before Part IB Reviews of federal sentencing Enactment of Part IB Subsequent amendments to Part IB General criticisms of Part IB General principles or detailed code? Location of federal sentencing provisions 7. Sentencing Options 105 Introduction Purposes of sentencing Sentencing hierarchies Legislative prescription of penalty Ancillary orders Non-custodial sentencing options Fines and the federal offence provision Non-custodial sentencing options under Part IB Non-custodial sentencing options under state or territory law Non-custodial options not available to federal offenders Failure to comply with a non-custodial sentencing option Custodial sentences Failure to comply with alternative custodial sentences Federal or state prescription of sentencing options? 8. General Issues in Determining the Sentence 141 Introduction Selecting sentencing options Determining quantum Factors relevant to sentencing Factors irrelevant to sentencing Determining non-parole periods Reconsideration of sentence 9. Particular Issues in Sentencing 159 Introduction Specification of discounts Failure to comply with undertaking to cooperate Commencement of sentence Cumulative or concurrent sentences Multiple offences Remissions Recognizance release orders Conditional release Explanation of sentence 10. Consistency in Sentencing 183 Introduction Judicial discretion Consistency Legislative methods Judicial methods Role of prosecutors Sentencing information Sentencing commissions and advisory councils Judicial specialisation 11. Procedural and Evidential Issues 205 Introduction Information used in sentencing Fact-finding in sentencing Burden and standard of proof Role of the jury in sentencing Sentence indication schemes 12. Administration of Federal Offenders 259 Introduction Role of the Australian Government Arrangements with the states and territories Joint offenders Increased oversight of federal offenders Failure to comply with sentence 13. Early Release from Custody 243 Introduction Parole and release on licence Pre-release schemes Leave of absence The prerogative of mercy 14. Mental Illness and Intellectual Disability 261 Introduction Criminal justice system or mental health system? Scope of Part IB Fitness to be tried Acquittal due to mental illness Summary disposition Sentencing alternatives Considerations relevant to sentencing Commencement of sentence Rehabilitation programs and parole Operational issues A comprehensive federal scheme? 15. Special Categories of Offenders 275 Young offenders Women offenders Offenders with family and dependants Aboriginal or Torres Strait Islander offenders Offenders with a first language other than English Offenders with drug addiction Offenders with problem gambling Corporations Summary 16. Information, Education and Cooperation 297 Introduction Information Key performance indicators Education Cooperation and information sharing Appendix 1. Abbreviations 315 © Commonwealth of Australia 2005 This work is copyright. For further information about reproducing this document - in whole or in part - please refer to the ALRC's copyright statement. ISBN 0-9750600-8-2 Commission Reference: IP 29 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Making a submission Any public contribution to an inquiry is called a submission and these are actively sought by the ALRC from a broad cross-section of the community, as well as those with a special interest in the inquiry. Submissions are usually written, but there is no set format and they need not be formal documents. Where possible, submissions in electronic format are preferred. It would be helpful if comments addressed specific questions or numbered paragraphs in this Paper. Open inquiry policy In the interests of informed public debate, the ALRC maintains an open inquiry policy. As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications. As part of the open inquiry policy, non-confidential submissions are made available to any person or organisation upon request, and also may be published on the ALRC website. However, the ALRC also accepts submissions made in confidence. Confidential submissions may include personal experiences where there is a wish to retain privacy, or other sensitive information (such as commercial-in-confidence material). Any request for access to a confidential submission is determined in accordance with the federal Freedom of Information Act 1982, which has provisions designed to protect sensitive information given in confidence. In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as non-confidential. Submissions should be sent to: The Executive Director Australian Law Reform Commission GPO Box 3708 SYDNEY NSW 2001 E-mail: [email protected] Submissions may also be made using the on-line form on the ALRC’s homepage: www.alrc.gov.au. The closing date for submissions in response to IP 29 is Friday 8 April 2005. Terms of Reference TERMS OF REFERENCE REVIEW OF PART IB OF THE CRIMES ACT 1914 I, PHILIP RUDDOCK, Attorney-General of Australia, HAVING REGARD TO: • a decade of operation of Part IB of the Crimes Act 1914 • concerns raised about the operation of Part IB of the Crimes Act 1914 • the relatively small number of federal offenders compared with the number of State and Territory offenders, and • the Commission’s previous reports on sentencing, REFER to the Australian Law Reform Commission for inquiry and report under the Australian Law Reform Commission Act 1996, whether Part IB of the Crimes Act 1914 is an appropriate, effective and efficient mechanism for the sentencing, imprisonment, administration and release of federal offenders, and what, if any, changes are desirable. 1. In carrying out its review of Part IB of the Crimes Act 1914, the Commission will have particular regard to: (a) the changing nature, scope and extent of Commonwealth offences (b) whether parity in sentencing of federal offenders should be maintained between federal offenders serving sentences in different States and Territories, or between offenders within the same State and Territory, regardless of whether they are State, Territory or federal offenders (c) the characteristics of an efficient, effective and appropriate regime for the administration of federal offenders, and whether this could or should vary according to the place of trial or detention (d) whether there are effective sentencing and administrative regimes in Australia or overseas, including alternative sentencing options, that would be appropriate for adoption or adaptation by the Commonwealth, and 6 Sentencing of Federal Offenders (e) any related matter. 2. In carrying out its review, the Commission is to consult widely with the key stakeholders, including the relevant Australian Government, State and Territory authorities. 3. The Commission is to report no later than 31 January 2006. Dated: 12th July 2004 Philip Ruddock Attorney-General Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot (President) Mr Brian Opeskin (Commissioner in charge) Professor Anne Finlay (until November 2004) Justice Susan Kenny (part-time Commissioner) Justice Susan Kiefel (part-time Commissioner) Justice Mark Weinberg (part-time Commissioner) Senior Legal Officers Carolyn Adams Gabrielle Carney (until October 2004) Isabella Cosenza Legal Officer Jonathan Dobinson Research Manager Lani Blackman Project Assistant Tina O’Brien Legal Interns Julia Bargenda Kalhari Jayaweera Advisory Committee Members Ms Joanne Blackburn, Commonwealth Attorney-General’s Department Professor David Brown, Law School, University of New South Wales Mr Damian Bugg QC, Commonwealth Director of Public Prosecutions Mr Brendan Byrne, General Counsel, Australian Securities and Investments Commission 8 Sentencing of Federal Offenders Mr Paul Coghlan QC, Victorian Director of Public Prosecutions The Hon Justice Carolyn Douglas, County Court of Victoria Professor
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