STANDING COMMITTEE ON LEGISLATION

SENTENCING MATRIX BILL 1999 INQUIRY

TRANSCRIPT OF TAKEN AT PERTH, WEDNESDAY, 13 SEPTEMBER 2000

Hon B.K. Donaldson (Chairman) Hon Derrick Tomlinson Hon W.N. Stretch Hon J.A. Cowdell (Substituted by Hon N.D. Griffiths) Hon Giz Watson Standing Committee on Legislation 13 September 2000 Page 1

Committee met at 2.00 pm

FOSS, HON PETER GILBERT Da CONCEICAO, Attorney General, 12th Floor Dumas House, 2 Havelock Street, West Perth, examined:

The CHAIRMAN: On behalf of the committee I welcome you to today’s meeting. Thank you for appearing again. You have signed a document entitled “Information for Witnesses”. Have you read and understood that document? Hon Peter Foss: I signed that document the last time I appeared; I have not done it this time. The CHAIRMAN: These proceedings are being recorded by Hansard. To assist the committee and Hansard, please quote the full title of any document you refer to during the hearing for the record. A transcript of your evidence will be provided to you. I remind you that your transcript will become a matter for the public record. If for some reason you wish to make a confidential statement during today’s proceedings, you should request that the evidence be taken in closed session. The committee will then decide whether it will grant your request. However, even if the committee receives evidence in closed session, I advise that your evidence will become public when the committee reports to the Legislative Council on the subject matter of the inquiry unless the committee resolves to request a suppression order of the Legislative Council. I further advise that until the committee reports on the inquiry you should not disclose any evidence taken in closed session, otherwise you may be charged with contempt of the Legislative Council. Would you like to make an opening statement to the committee? Hon Peter Foss: No. The CHAIRMAN: Some questions were provided in writing. We will have trouble getting through them, but we will do the best we can in the time available. You may be able to answer “yes” or “no” to some questions. If at any time you wish to give evidence in private session, please make that request of the committee. The first question relates to sentencing reports for reporting offences, regulated offences and controlled offences. Hon Peter Foss: The question 1 misses the point. Each offence is separately sentenced. We have not tried to deal with the totality principle, primarily because we thought we should walk before we run. Once we have had some experience of dealing with individual cases, we may have to look at that principle. It is far too complex at this stage. Each offence is separately sentenced at the moment. The totality principle operates when decisions are made about what will be concurrent and what will be cumulative. The total period a person spends in jail for all his offences still remains within the province of the judges. I would not pretend at this stage to feel competent to pass a matrix to deal with that. I do not think it makes the slightest difference. The CHAIRMAN: Please address question 2. Standing Committee on Legislation 13 September 2000 Page 2 Hon Peter Foss: We are totally puzzled by question 2(a). Judges pass sentences and they will continue to do so in the same way. The Ministry of Justice simply supervises those sentences. Question 2(b) relates to writing regulations on the basis of one offence and one person. That is true, but the offender is still sentenced for each offence. That is how it happens now and the totality principle applies in deciding whether he serves separate or concurrent periods of . Question 2(c) relates to the Bill and the regulations addressing those concerns. It already addresses them. It deals with it on a one- basis. It does not deal with the totality principle. It is too early to deal with that. The CHAIRMAN: Question 3 deals with division 3. Hon Peter Foss: The question asks whether it is proposed to develop a sentencing matrix to reflect the average of the sentences presently produced by the courts. That is what division 2 would be. We would bring in a division 3 only if we felt it was necessary. As I have said all along, I believe that with some matters, division 1 would probably be enough to have an impact. Division 2 would have a major impact on consistency. Judges might start sentencing at the extreme ends of the bell curve. Division 3 would be introduced only if one wanted to put pressure on the way the courts do things. We would not bring down a division 3 unless we wanted to make a change and were not happy with what was being shown by division 2. Hon DERRICK TOMLINSON: Does that mean that a decision could be made to progressively proclaim the Bill? Hon Peter Foss: We would not have to progressively proclaim the Bill. We would have the whole Bill but would not need regulations. Hon DERRICK TOMLINSON: Alternatively, we could proclaim divisions 1 and 2, but not division 3. Hon Peter Foss: There is no point in doing that. We should have it because we may want to use it. Proclaiming it makes no difference until we have a sentencing matrix approved by the Parliament. Division 3 is a framework for another set of enactments that must be initiated by the Executive; otherwise it goes through all sorts of processes that a Bill would go through. Question 3(b) asks whether it is proposed to develop a sentencing matrix that is designed to achieve something more. Yes, it is; but only if it is necessary. One of the issues being raised at the moment is dealing with seniors. It is stated that offences involving seniors should attract a more severe penalty. We must first establish the current sentencing with regard to that factor. It is already taken into account. If it is decided that it is not taken into account sufficiently, Parliament can move that something more should be done. Question 4 is interesting; in fact, it begs the question. It states - If certain offences are therefore singled out for directive sentencing by Parliament, how will consistency between sentences for different offences be maintained? We would not do it unless we wanted to change the consistency. Parliament tries to distinguish between various sentences by setting the maximum penalty. That is what Parliament is all about. We set the relativities; that is our job. There is no reason it should not set the relativities between different sentences and factors. It is up to us to decide when that change is to be made; that is what we are there to do. Question 5 refers to section 101K of proposed division 3. Standing Committee on Legislation 13 September 2000 Page 3 The CHAIRMAN: We said that we would leave questions 5 to 7 and deal with them later if there is time. I refer you to question 8. Hon Peter Foss: This question refers to a third stage. A third stage is included because it is very much a matter of community beliefs about what we have. It is like any form of Bill. The third stage will virtually be a piece of legislation coming before the Parliament. Unless it has the support of the Parliament, it will not be passed, and the Parliament will not give its support unless it has the support of the people. It is like any form of legislation - if we want it introduced and passed, we must consult people about what we are doing. The CHAIRMAN: You said earlier that you would be looking at setting up a committee to work through the process. Is that still the intention? Hon Peter Foss: I have asked the ministry to work with the judiciary to make the regulations practical. That is slightly different from what the penalty should be. They are certainly relevant people to consult about what is a proper sentence. However, they are the most vital people in terms of how it is put into practice. We have done that with the judicial sentencing information system. The mitigating and aggravating factors have been set out with a degree of emphasis. Members might like a copy of that. The CHAIRMAN: Yes. Hon Peter Foss: I have another document that I would like to provide to the committee. However, given that it might become public, I cannot provide it. Ms Betjeman: It is probably best that the Attorney provide it under cover of a letter containing his concerns and the committee will decide how it will treat the information. Hon Peter Foss: I cannot afford to have it become public. It is sentencing information that will become public in due course, but I cannot provide it at the moment. It indicates how those factors I have mentioned are applied in practice. The CHAIRMAN: I suggest that it not be provided. This is the grey area. Hon Peter Foss: It is important that the committee see it. This is the silly point. It is information that the committee must have, but I cannot provide it without a guarantee of its being kept private. Hon DERRICK TOMLINSON: We will wait until it screens at the Ambassador Theatre in cinemascope and technicolour. The CHAIRMAN: Parliament must consider this issue very seriously in the near future. It is restricting the ability of the committee. It is ridiculous. Hon Peter Foss: This document indicates what we see as the major mitigating and aggravating factors. They are ranged in relevant order. Hon DERRICK TOMLINSON: How are these arrived at? Is it a product of analysis of judicial decisions? Hon Peter Foss: No, it was done by the judges themselves. . The CHAIRMAN: You are saying that JSIS is moving down the path that you expected it to move to achieve the desired results. Hon Peter Foss: Again I am reluctant to say something publicly. I could tell the committee some things, but it is not appropriate that they be made public. I am happy with this result. It is a pity I cannot say more. It is very workable. The processes of mitigating and aggravating factors and the qualitative and quantitative assessment are very workable. Standing Committee on Legislation 13 September 2000 Page 4 Question 9 refers to sentencing regulations and proposed section 101J. They are legislation - they must be passed affirmatively by both Houses. To that extent, the nature of consultation must be broader than that for other regulations. Hon DERRICK TOMLINSON: It is not clear in proposed section 101K of the Bill. Proposed Subsection (2) suspends the application of section 41(1)(b) and 42 of the Interpretation Act and then reverses the onus from disallowing to approving the regulation. In the case of sections 41 and 42, if there is not a motion to disallow, after the passage of the prescribed period without a motion to disallow, the regulation stands. There is no indication in proposed section 101K that there must be a motion to approve and, if there is not a motion to approve, whether the sentencing regulation lapses. Hon Peter Foss: I saw that question. To some extent it is immaterial. An ordinary regulation has effect at law as soon as it is passed. If it is not disallowed, it will stay there until it is repealed by the same process that brought it into effect. These are regulations from the moment they are passed. Hon DERRICK TOMLINSON: Is it not the moment they are gazetted? Hon Peter Foss: Yes. They become regulations as soon as they are gazetted. However, there is no disallowance process. There is no need for such a process because they do not come into effect until they are affirmed by both Houses. Although they are regulations, they have no legal effect in terms of impacting. The idea of disallowing it is irrelevant. Although it is there, there is no point in disallowing it because, unless the Government brings it forward and has it affirmed, it has no legal effect. It is like an Act which has been assented to but which has not been proclaimed. It is an Act and it still has its legal status. However, until such time as it is proclaimed, it does not take effect. Hon DERRICK TOMLINSON: If that is the intention, I have not read it. Hon Peter Foss: That is here. It relates only to the division 3 regulations, not the division 1 and 2 regulations. After being published, they have to be laid before each House of Parliament, which passes a resolution approving them. The legislation provides - (5) If each House of Parliament has passed a resolution under subsection (4), notice to that effect is to be published in the Gazette within 21 days. (6) If the Houses of Parliament pass separate resolutions under subsection (4) on different days, the 21 day period mentioned in subsection (5) commences after the later of those days. (7) If sentencing regulations are approved by each House of Parliament under subsection (4), they come into operation - (a) on the 7th day after the publication of the notice under subsection (5); or (b) where a later day is specified or provided for in the regulations, on that day . . . They have no effect until that happens. They come into operation in the same way that a normal subsection (2) of an Act of Parliament comes into effect. The legislation continues - (8) If a resolution to approve of sentencing regulations is defeated in either House of Parliament, the defeat of the resolution repeals the regulations. (9) Regulations may abolish a sentencing method prescribed under section 101J and this section does not apply to those regulations unless they prescribe another sentencing method to replace the method that is abolished. Standing Committee on Legislation 13 September 2000 Page 5 I included regulations because, first, I thought this should be governed by the Government. Such a precise method of defining penalties has governmental implications. It is not simply a matter of saying to a court that it can sentence people for a longer period; it is saying that it will. That will have significant financial implications. That gives the Government control because it initiates the move. Second, I thought the process should be reasonably simple. Third, if it turned out that an error had occurred - the legislation was passed one day and a day later someone came up for sentencing in a case that was never considered - there must be the capacity to repeal it immediately. That is what proposed subclause (9) does - it enables quick executive action to remove it. Parliament could still come back with a replacement later. If one wanted replacement, the sensible way to do it would be through instant repeal and another replacement. The instant repeal will overcome any errors made. Hon DERRICK TOMLINSON: If there is no motion to approve the sentencing regulations, we should make it clear that they do not come into effect. I understand what you are saying, but I want to make it clear in the legislation. Maybe additional words are necessary. I know the Attorney General is anathema to unnecessary words, but sometimes unnecessary words are necessary to make the intention clear! Hon Peter Foss: I will go to back to parliamentary counsel. I suggest adding after “Act” at the end of paragraph 7 “but not otherwise”. We will ask parliamentary counsel. I suspect he will look at me with disdain and say it is absolutely unnecessary. Hon DERRICK TOMLINSON: Perhaps Parliament will tell him it is necessary. Hon Peter Foss: I will ask him whether it will be too much to swallow to have those words added. The CHAIRMAN: I refer now to questions 10 and 11 on the sheet regarding enshrining a consultative body in the Bill. Hon Peter Foss: I do not think so. The consultative body for these matters is Parliament. We are virtually passing more legislation. I would find it absolutely incorrect to put in what is suggested here. I hope division 4 will only be a worry to an appeal court. It was necessary once. Division 4 was not a problem while one penalty was involved, but we wanted it to be less narrow and the capacity to have more penalties. I now go through the schedule table on page 17 of the Bill. It states that a recommended sentence is a $10 000 fine, and that the actual sentence is $5 000 and a 12-month conditional release order. The problem is that only one possible option is allowed; that is, a $10 000 fine. The fine that will be imposed is less than $10 000. The fact that a 12-month CRO is something less than $5 000 does not help much when dealing with the fact that the only penalty allowed is a $10 000 fine. The $10 000 fine and six-month CRO is more severe than the recommended sentence because it is said that $10 000 is the maximum fine to be imposed; it also says that something will be added. It is more severe so something should be added to the $10 000 fine. Hon DERRICK TOMLINSON: Is there a unit equivalent for fines, CROs etcetera? Hon Peter Foss: No. They go up in steps. Hon DERRICK TOMLINSON: In which case, how do you determine that a $5 000 fine and 12-month CRO is less severe than a $10 000 fine? Hon Peter Foss: More fine could have been imposed. The fine was at the bottom of the range, and that is the problem. Hon DERRICK TOMLINSON: What is the 12-month CRO worth? Standing Committee on Legislation 13 September 2000 Page 6 Hon Peter Foss: It does not have an equivalent. The CRO is lower than a fine in the hierarchy. A community-based order is above a CRO. Section 39 of the Sentencing Act outlines, first, no sentence, then a CRO, then a fine, then CBO, intensive supervision order, suspended imprisonment and imprisonment. Therefore, applying a $5 000 fine and something less than a fine is less severe than a $10 000 fine. Giving someone a $10 000 fine and a little more, even though the CRO is less than a fine, is more than the maximum. A $5 000 fine and a 12-month CBO, as one is giving more than the maximum, is more severe than the recommended sentence. A six-month CBO is more severe because of the next step. One then has a recommended sentence of $10 000-$20 000 fine or 12-24 months CBO. A $15 000 fine actual sentence is plainly the same as the recommended sentence. A $25 000 fine is less severe than the recommended. Although it is more than the fine given, it states that it deserves something more than a $20 000 fine, but a CBO has not been used. Therefore, given that range, it is less severe than should have been the case. A $20 000 fine and a 20- month CBO is less severe than the recommended sentence outlined because a 24-month CBO and a $20 000 fine could have been applied. Having said that, it is within that part of the range, it is less severe than the possible sentence. A $2 000 fine and a 24-month CBO is more severe because the maximum amount of CBO has been applied, and a fine added. It must be more severe. A $2 000 fine and six months imprisonment is definitely more severe than the recommended sentence of $10 000-$20 000 or 12-24 months CBO. For a recommended sentence of $10 000-$20 000 or 12-24 months CBO or six to nine months imprisonment, a $20 000 fine actual sentence is obviously allowed, as is a 24-month CBO. A $20 000 fine and a 24-month CBO is less severe than the recommended sentence as imprisonment should be imposed at that stage. An actual sentence of $20 000 fine and eight months imprisonment is less severe than that recommended sentence as a longer term of imprisonment should have been given. A $20 000 fine and nine months imprisonment is more severe than the recommended sentence, as they are allowed to give nine months in prison or $20 000, and cannot give both. That goes beyond the maximum they can give. The CHAIRMAN: There is one month difference between the last two. Hon Peter Foss: They have gone to the maximum amount of imprisonment, and added something. If one has three types of ranges, and the middle range is used and one gives something more which is not allowed, it is less severe than the recommended sentence. They should have jumped into the imprisonment level. Unless one hits the top of the range, and gives something more, the actual is less severe than the recommended sentence as one should have gone to the top range. The alternative is that people will pop bits and pieces into sentences all over the place. We do not know at this stage how many ranges we will get. However, I think we will end up with a simpler matrix than the one before us. We have gone to the most complex possibilities, which are catered for in the words. It works out. There will be no problem in the appeal courts in determining whether a sentence is more or less severe than the recommended sentence. The people who will be sentenced need to know that they will be sentenced within the boundary. If they get that sentence, they will know what they will receive. It is complex working out these examples, but it will not be that complex in dealing with these sentences. Provided people are sentenced according to the matrix, one need not worry about it. The CHAIRMAN: That takes care of question 17. We have deleted questions 18 and 19. What about question 20 regarding the possible removal of division 4? Hon Peter Foss: One would be lost without division 4, which is essential. It is very much a mechanism to take away concerns about what is more or less severe than the recommended Standing Committee on Legislation 13 September 2000 Page 7 sentence. We had to work it through to make it legally certain. It is. A massive incentive exists to sentence within the matrix. If not, there is a good chance one will end up on appeal. The CHAIRMAN: What about sentencing information in question 21? Hon Peter Foss: I have given the chart to various people. The CHAIRMAN: The committee felt it was important to have that chart in the report. It gives an idea to the wider community, which may be surprised by the median sentencing. Hon Peter Foss: Yes, include the chart in the report. I have no problem with it being published. The CHAIRMAN: Question 22 relates to the Western Australian Judicial Sentencing Information System, which we were fortunate to be briefed upon twice, for which the committee is appreciative. Hon Peter Foss: We started off with an enormous quantity of aggravated and mitigating factors with no ordering. They have been ordered. It is being given limited use, as not everybody wants to use the JSIS. It is fair to say there is a degree of resistance among certain people to using it. It is being used by some people, and is proving to be easy to use. Its biggest problem is statistical reliability because of limited data. A good thing about the sentencing matrix is that it will make everybody start to collect that data. I give an idea of how it would be used: A system is used for community-based services to assess the risk of rearrest of community-based offenders, and this is being developed by the Crime Research Institute at the University of Western Australia. Dr Fitzgerald: Community-based services have provided the data. It is an actuarial system which looks at the history and previous data. Hon Peter Foss: That system has a built in estimate of reliability. It would probably go nicely into JSIS, which does not include that feature. Members seem firmly fixed on the chart. Hon DERRICK TOMLINSON: This graphically presents the argument presented ad nauseam. It is pleasing to have it. Carry on! Hon Peter Foss: Unlike the high risk offender system, JSIS does not have a degree of built- in indication of reliability. The chart indicates only two attempted murders, and 668 aggravated burglaries. There are bits in between. The reliability of the data for aggravated burglary is considerably better than that for attempted murder. One more attempted murder offence could totally throw that graph into a different situation. We need to put into JSIS something which comes up instantly and indicates the reliability on the sample. As people key in more information, it will become more reliable and useful. As long as we let people know the degree of reliability, it will be useful. It will vary depending upon the offence involved. How useful it will be will vary tremendously, depending on the offences. The CHAIRMAN: I think you told us that the judicial sentencing information system was sought by the judiciary. Hon Peter Foss: It was sought and specified. If you checked the Chief Justice’s end of year speeches, you would see I was caned regularly for not having given it to them. The CHAIRMAN: So that is on public record. Hon Peter Foss: You would probably even find that I sat there squirming while I was castigated regularly for not having done it. That was definitely required. The difference between our judicial sentencing information system and the New South Wales sentencing information system is that in New South Wales, the input is not done by the judges. The Standing Committee on Legislation 13 September 2000 Page 8 judges specified what they wanted in our JSIS. The New South Wales SIS does not have the functionality that they require, and people must come along after the situation and key in the results, which is quite an expensive process. The CHAIRMAN: I did not go to Sydney, and I need to rely on the members who did. Hon Peter Foss: This one will be done by the judges. The CHAIRMAN: With regard to question 23, I understand that under the New South Wales system it is possible to include a weighting for some of the mitigating factors that are entered. Ms Betjeman: Some people did say that was the case, but there was a bit of a question about it. Hon Peter Foss: I understand that the New South Wales SIS does not, but ours does. For instance, under the heading “Planning”, the degrees of that factor are impulsive, intentional and premeditated; and under the heading “Nature of Plea”, the different degrees are pleaded guilty on fast track, pleaded guilty at committal, pleaded guilty after was listed, or pleaded guilty on day of trial. The CHAIRMAN: Question 23 is the important one. Hon Peter Foss: We did not design it for the purposes of the Bill. It is true that it was asked for 10 years ago, well before we thought of the Bill. It just happens to present an opportunity to give that information to the public. The New South Wales JSIS is principally for the judges and the lawyers. We believe the difference with this one is that we can make it also of interest to the public, so that the public can look at it and understand it. There is also the ability to read judgments, where you can click on a graph and up will pop the names of the cases that are in that particular sample on the bell curve, and you can look at those sentences. That will increase in size as time goes on. The CHAIRMAN: What is the time frame for the necessary data to be upgraded? When will be the maximum opportunity for the system to be used correctly? Hon Peter Foss: For judges or the public? The CHAIRMAN: For judges, first of all. Hon Peter Foss: That will depend on the case. With things like burglary and aggravated burglary, we will have useful data in a very short time, but with things like attempted murder, it will obviously take a while. Robbery whilst armed will probably take a while. Manslaughter will probably take a long time. The heading “Old Burglary” is just old cases and will probably disappear. I am surprised there are only three cases under the heading “Assault with intent to rob using threat or violence”. I thought there would have been more. The CHAIRMAN: There were only three in both 1997-98 and 1998-99. Hon Peter Foss: That is because it deals with the most serious offence for which they were convicted. It might be that that was not their most serious offence. Hon DERRICK TOMLINSON: What you are demonstrating is that while you have statistical reliability, you will need to have a sufficient number to predict with confidence the outcome. The number of offences taken into account is another dimension of the reliability of the data. Under the heading “Attempted Murder”, there are only two cases. If that information were made public at the same time as your other data were made public, that measure would be available to the community, the judges and the respected body of the legal profession. Standing Committee on Legislation 13 September 2000 Page 9 Hon Peter Foss: The public might need to have it drawn to its attention very forcibly, because I suspect it will just look at it and say, “What is this?” Hon DERRICK TOMLINSON: In cinemascope, with full colour. Hon Peter Foss: Yes. It is interesting that with regard to the offence of home burglary, people might have committed 16, 20 or 30 offences, but it is likely that they will have two of their sentences made cumulative, so they will only spend twice as much time in jail as this chart shows for one offence. Totality is one of the things that the public is not happy about, and it is a matter that we will need to address eventually. The judges are not very happy about totality either. Nobody understands how the totality principle works, and that will be the next area of explanation to the public. At least this will get to the first stage of explanation to the public. Totality will be a lot harder to put a finger on. The CHAIRMAN: Would it be fair to say that with regard to consistency in sentencing by the judiciary and an information system, there are only a few high profile and emotive cases that people really get their teeth into? Thousands of judgments are made each year in our courts - 130 000-odd in the Magistrates Court - yet the average people in the wider community do not care about the majority of those judgments unless they believe the sentence is unfair and should be doubled. Hon Peter Foss: That is one of the reasons that stages 1 and 2 are so important, because we believe that half the problem is that the public does not know what the judges are doing. All the public finds out about is the occasional case that is either unusual or has been misrepresented by the newspapers. The real benefit of this will be in educating the public to understand what the judges are doing and educating the judges to speak in terms that the public will understand. A lot of the sting will go out of it once we do that. If judges really wanted to manipulate this, they could do it by fudging the mitigating and aggravating factors. They could fudge it with the totality principle if a person had a lot of . They could not do it if the person had only one . However, one hopes the judges will not fudge things and will try to come up with what they believe are the aggravating or mitigating factors, and if they did that, they should be consistent with what other judges were doing. Hon W.N. STRETCH: One of the comments that we heard in New South Wales was the slow progress in massaging the judiciary towards accepting this system. Some judges readily accepted it, but others did not, and the comment that was made was that those who accepted it the least were the ones who needed it the most. Is progress being made in the acceptance of this system by the judiciary locally? Hon Peter Foss: That comment would apply here as well. We find that with everything. When we have judicial seminars, the judges who always turn up are the ones whom we do not need to convince; the ones who do not turn up are the ones who probably most need it. The court that is most likely to use this is the District Court. The District Court is a very progressive court, although that is not to say there are not some people there who are less progressive than others. I am convinced that once we bring in this legislation, it will be handled very competently and efficiently and will be used to the maximum benefit of the court and the public. Hon W.N. STRETCH: Has the feedback from the consultative process with the judges been positive? Hon Peter Foss: The vast experience is with the Chief Judge, who runs a very efficient court - the most efficient court in Australia - and who has come up with processes for doing things which are the most efficient in Australia. This system is a product of that, and I am convinced Standing Committee on Legislation 13 September 2000 Page 10 that he can handle anything efficiently, and I do not have a problem with his setting up a process for how it should happen. Hon W.N. STRETCH: We have been considering this for some time. Do you note any change in the wings in the acceptance thereof? Hon Peter Foss: That is interesting. Yes and no. I have heard some remarks whereby people say they cannot see what the problem is with it. I have seen some pre-emptive moves, like trying to be a bit more public and descriptive as to what people do. Recently I attended a seminar in Melbourne sponsored by the Attorneys General at which one person from the Director of Public Prosecutions Office advocated we should have a system, which he proceeded to describe as a matrix, to make life considerably better. It depends tremendously on attitude. The attitude is now recognising the need to account, to be consistent, and to somehow explain to the public what is happening. Most people take the view that judges do their job pretty well. I think they do. However, they have terrible public relations in terms of getting it over, and there are areas in which they do not meet the requirements of the Parliament. I think it is only reasonable that they should do this. The CHAIRMAN: Would it also be correct to say that it does not remove judicial discretion, as has been described to us by others? Hon Peter Foss: No. Even within the matrix, it leaves a very wide discretion. If there is any factor which has not been included, it may be taken into account in cases outside the matrix, unless the matrix has said that factor is not to be taken into account; and you can always say, “Bugger it; I am going to sentence the person for this reason anyway”, and leave it to the Supreme Court to make the final decision. Hon DERRICK TOMLINSON: I return to the question of informing the public, the judges and the legal profession. The point has been made that this sort of information will help them understand. Earlier you provided us with graphs of the frequency and distribution of home burglary sentences imposed in superior courts in 1997-98, and the frequency and distribution of aggravated burglary sentences imposed in superior courts in 1997-98. In those sentences, the penalties are at the lower end of the scale, and they tend to regress towards the mean. In other words, judicial discretion is not exercised a great deal; judges follow one another in regressing towards the mean. In the other graph - frequency and distribution of assault occasioning bodily harm sentences imposed in superior courts in 1997-98, there is a much broader distribution and perhaps a regression towards the lower end, but not the same apparent obvious regression towards the mean. There are two questions in this. Some people have argued that your sentencing provisions will compel a regression towards the mean, whereas I interpret the intention to be to compel judges to take account of all of the factors and therefore use a broader range of penalties. Hon Peter Foss: It all depends. What those two things might show is that all burglaries are much the same; therefore, the factors are not all that much different. What it will do is detect what the judges are doing and why they are doing it. If we find that on the face of it exactly the same factors have been taken into account but the sentences are spread like that, we will need to ask what it was that distinguished them; and we may very well find, if we overlay that with the particular judge involved, that we have a complete explanation. At the moment we have no real way of doing that. On the other hand, we may find with something like grievous bodily harm that there are huge variations in the factors, such as the amount of injury caused, the premeditation, and the number of other people involved. There is probably a greater variety of factors in grievous bodily harm than in burglaries. The classic example is manslaughter, which can range from negligence at the one end to quite horrifying circumstances at the other end. Murder can also have a wide variety of consequences, Standing Committee on Legislation 13 September 2000 Page 11 although there is only one penalty for murder, and that is . It can mean all sorts of things, and until we have the statistics we cannot really say what it is. However, I hope that given the same circumstances it will regress towards the mean, because that is what it should be. The penalty should not depend upon extraneous factors such as what the judge had or did not have for breakfast that morning, what the judge’s views are generally speaking on penalties, or what haircut the person had when he or she came into the court. Those may be capricious and whimsical and are not a fair basis for sentencing. Hon DERRICK TOMLINSON: Make the punishment fit the crime. Hon Peter Foss: Exactly. Hon GIZ WATSON: I was interested when you talked about an overlay of which judge it was, because I wonder whether that is one of the intentions of this system. In New South Wales we heard explicitly that that was one of the things it did not want to happen and did not allow to happen with its sentencing information system, because of the risk of judge- shopping. Are you anticipating that a comparison can be made of how specific judges sentence; and, if so, how will you get around the issue of judge-shopping? Hon Peter Foss: I can tell you that people already know now. Hon GIZ WATSON: Surely this will make it more explicit. Hon Peter Foss: The criminal lawyers know now, and I suspect the criminals know too. They know which judges are good judges to come before and which judges are not. Only the public are kept in the dark about it. Judge-shopping is currently going on. Of course, I do not think people always have the capacity to shop, but there are certain people in whose courts adjournments abound and you suddenly find that all the lawyers have a good reason to have their case heard on another day, particularly in the Magistrates Court when they find they are before a particular magistrate. It is not a major problem. There are just a few exceptions. If we look at it and find that to be the case, we should make an inquiry, and the people who should most make an inquiry are the judges. The judges should look to see where they fit into the whole system. If I were a judge, I would like to know whether I was consistently out of step with the judicial practice. I do not think judge-shopping will be eliminated by not having it. Lawyers know it and prisoners know it. I do not think it is something people will do regularly, and I do not think it is a major problem, but I hope the judges will make sure that they are in step and do not start sentencing outside the appropriate range. The CHAIRMAN: The New South Wales sentencing information system is for the use of judicial officers only, although it has recently been offered to legal practitioners on a subscription basis. Hon Peter Foss: I would like to make this available on the Net, but what the public will get is not what the judicial officers will get. The JSIS is a progressive basis whereby information will be available as cases come through, and finally there will be a result which goes into the database. I know the judges regard the information as entirely private and secret to themselves, and they do not agree with that at all. I request that we deal with this matter in closed session.

[The committee took evidence in camera]

The CHAIRMAN: I think you have answered question 25. The New South Wales system was available for purchase, but you have developed your own system, and you have given the reasons. Question 26 is about guideline judgments. If you had enough guidelines Standing Committee on Legislation 13 September 2000 Page 12 judgements, you would remove judicial discretion. I am naive in the area of law, but, as I see it, all you would do is set up a matrix in another form and remove judicial discretion completely. Hon Peter Foss: The other thing is they are not very obvious to the public. Firstly, we do not have any guideline judgments. We have the capacity to bring them in, but no-one has done that. It is all very well to say guideline judgments are a good idea, but we do not have any. The important thing is they still do not do what the matrix will do, which is make information available to the public. The problem with all these things is while they are wonderfully interesting to lawyers, they make no sense at all to the public. You are right. They do constrain judicial discretion; and if anyone is to constrain judicial discretion, it should be the Parliament. I have always said that the most important thing about a sentence is that it be fair; and if you have a fair constrained decision and an unfair unconstrained decision, the better one is the fair constrained decision. Hon W.N. STRETCH: It is interesting that New South Wales advised us that after all its great enthusiasm for guideline judgments, it has had four, going on five, in the 10 years it has been working on it. It is a long way short of a matrix. Hon Peter Foss: We do not have any, and I do not think the New South Wales ones have done an awful lot. It is very handy for judges and counsel, but I do not think it does the public the slightest bit of good. It does not seem to recognise the difference. People seem to think the discretion of judges is for the benefit of judges. It is not. It is for the benefit of the community. We give discretion to judges, ahead of time, to make decisions that are too difficult for us to make. We are trying to set up a process whereby we can make those decisions as a Parliament, and make them consistent and fair. We do not give judges discretion because that is their right; we hope it is a way of securing a fairer result. If this achieves a fairer result, it will be a better way of doing it. The CHAIRMAN: Question 26 refers to guideline judgments. Hon Peter Foss: I do not agree with any of that. I would not bring something to Parliament unless I believed it to be necessary. My response to the question is: Demonstrate to whom? I certainly would have to demonstrate to Parliament that it was necessary, but to no-one else. I would not bring in a stage 3 process unless I thought it was necessary. Why would I? If I thought stages 1 and 2 would do it, why would I go to stage 3? In answer to part (b), we could wait forever for the Supreme Court. Again, that is a matter for the judgment of the person concerned. That is one of the reasons I suggested that it be done by regulation. Government should initiate it rather than its being initiated in the Parliament. The CHAIRMAN: Is there any response to part (c)? Hon Peter Foss: Statistics are a basis for guideline judgments. They are the basis for any form of opinion on judgments. With regard to resources, maybe. JSIS will solve that problem and it will provide statistics to me and to the public at the same time. It may be different in only two areas: First, the public will be able to understand it and they will be able to see it on the Internet; and, second, I believe it is Parliament’s role - that is our job. The CHAIRMAN: A statement was made to committee members who travelled to New South Wales. If New South Wales members came here, we would probably say the same thing. Hon Peter Foss: Perhaps the committee should ask the New South Wales public what they think. Having read New South Wales newspapers, I do not think the public there are any happier with local judgments than Western Australians are with theirs. It does not mean they are not better. However, if they are, that message is not getting to the public. Standing Committee on Legislation 13 September 2000 Page 13 Hon W.N. STRETCH: The evidence we took from the non-departmental people was that none of them was satisfied, but they felt they were making good progress. The response from the Public Defender’s Office was interesting but not relevant to these questions. Hon Peter Foss: I can recall when we were dealing with the legislation about videotaping arrested witnesses. All sorts of dire prognostications came from the police about having non- police officers operating the videotaping equipment during questioning. There would be so much trouble and bother and they would not be able to convict anyone. It has been a huge blessing; we could not remove them now. They have found that it makes it very hard for offenders to retract what they have said. It prevents allegations about pressure being applied and so on. Best of all - the police really like this - it shows the offender as he looked at the time of the offence, not spruced up for the court case when butter could not melt in his mouth. It shows his true attitude to the crime. If the person is being flippant and admitting the offence on video, that has an impact on juries in a way that reading out a statement transcribed by a policeman does not. Video interviews have become very powerful evidence. Despite what the police prognosticated, they are very pleased. This system will have a similar effect because judges will be able to get the message to the public about what they are doing. The CHAIRMAN: We will deal with the supplementary questions, the tabled charts and graphs and the Young Offenders Act. We will then move into private session to discuss some of the evidence given that may or may not need to be considered. This is a very salutary lesson that must be assessed very closely. It is becoming untenable. The information was tabled in private session at the time and it was stated that it could be made public. We are inquiring about these tabled charts and graphs anyway. Hon Peter Foss: It is very difficult not to be able to provide this information. The CHAIRMAN: At the time of the tabling, you stated that the matter could be dealt with in public. However, the information will be made public when the committee reports to Parliament unless a suppression order is sought from the House by the committee and it is granted. The committee is concerned about this information - it would be appended to the report. Hon Peter Foss: The problem is that it is now misleading. We have moved on a long way since that was done. It might give people a very inaccurate view of where we are going. That is the biggest problem - it is out of date and not applicable. Hon DERRICK TOMLINSON: The thing which you would like to show the committee, but cannot because it belongs to a body that cannot be named, is closer to where it is now but nowhere near where you will be if and when you reach a matrix. Hon Peter Foss: We have changed our approach significantly since it was drafted. The committee asked whether it was based on the investigations. It was inasmuch as it gave us a methodology. It is not based on the statistics but the methodology. Hon W.N. STRETCH: It would be best to leave it now and deal with it in the House. Hon Peter Foss: Yes. It would give a false impression of how we shall go about it. Hon W.N. STRETCH: So we should delete all charts - coloured or otherwise. Hon Peter Foss: The others are okay. I am referring to the draft of the presumptive sentencing matrix and chart B. We have moved on from there. That proved we could derive a constant to apply. That is the main issue. The CHAIRMAN: It is out of date. Hon Peter Foss: We were able to prove from the first investigation that we could construct a three-dimensional matrix for each offence and insert a constant that would make it work. The Standing Committee on Legislation 13 September 2000 Page 14 constant we arrived at was worked out empirically. Once we had it, we could use it for others. The methodology was cumbersome and we have moved on from that. The CHAIRMAN: It would be best, because of that confusion for people reading the report, not to include that information because it is out of date. Are you asking the committee to request a suppression order when the report is tabled? Hon Mark Nevill recently tabled a report and requested a suppression order and it was granted. Hon Peter Foss: We must raise this issue in the House. It very different from the way committees have operated in the past. It is an insuperable barrier if we cannot give a guarantee. The CHAIRMAN: It makes it difficult for committees to get the appropriate evidence to help them make the best decisions. Hon Peter Foss: It has been unilaterally done by a non-member. Hon DERRICK TOMLINSON: The Standing Orders Committee must deal with it. Unfortunately, whatever we have been used to in the past is no longer relevant because the staff must work under the direction of the Clerk until we give a different direction that supersedes that of the Clerk. For the time being, it is essential that we seek a suppression order for not only those graphs but also the evidence you have given in private because you have said things you had not intended to be made public. Hon Peter Foss: We should raise it with the President. He can give directions on the practice of the House. He can say that this is the practice until the House directs otherwise and that is how it will happen. The CHAIRMAN: You have asked the committee for that order. Hon Peter Foss: Very definitely, yes. The CHAIRMAN: I refer now to the Young Offenders Act. Hon Peter Foss: This is necessary to provide some form of consistency. It is something that the court does when taking into account sentencing. Even though a conviction is not recorded, the court is aware that is the case in deciding whether to do it again. The important issue is that the information is there. It does not constitute a prior conviction from the point of view of any maximums or minimums or the three-strikes legislation. It does not change the statutory penalty, but it means the information is before the court when it is deciding what it will do. That is necessary when recording statistics, otherwise we will get a strange view of what various judges have done when an offender comes up on what is supposedly a first offence but it is the sixteenth offence and the previous offences have not been recorded. It does not change the law as far as the penalty that can be imposed is concerned. It would take into account the practice of the court when dealing with the first and second stage. At least there would be an accurate recording. At the third stage, it will be up to the House to decide what to do - that is, whether it will allow that to be taken into account. It does not change the statutory provisions so far as the impact of a second or third offence is concerned. Hon DERRICK TOMLINSON: Why are you using the word “stage”? Hon Peter Foss: It is “division”. I see it as being staged. The logical thing would be to collect the information at stage one, to represent the information at stage two, and to control what happens with that information at stage three. It is not necessary under the law. Hon DERRICK TOMLINSON: Is that staging in terms of the implementation of the Act or staging of a different kind? Standing Committee on Legislation 13 September 2000 Page 15 Hon Peter Foss: I saw it as the sensible way to implement it. It is not required by law; there is nothing in the Act that says we cannot go straight to stage three. My preference is go through stage one and to get the information, then to stage two and to publish it, and then to stage three to do what we want to do with it. If Parliament wanted to increase penalties for offences against seniors, it could do that. We could phrase the matrix in such a way that we added to the penalty. The third part is knowing the penalties currently being imposed. Hon DERRICK TOMLINSON: Your intention is commendable in terms of educating the judiciary and others. However, part of the opposition to this Bill has arisen because that intention has never been made clear. People think you are going straight to stage three. Hon Peter Foss: I cannot give the commitment that we will not. Hon DERRICK TOMLINSON: No, you cannot, because you will not be Attorney General forever. Hon Peter Foss: Not only that, there may be a desire on the part of the Parliament and the Government to move faster. I have never given that undertaking. I think I have a reputation for trying to get things done my way if I can. Hon DERRICK TOMLINSON: Yes, certainly. The CHAIRMAN: We have noticed that. You have made that clear previously. Hon Peter Foss: That is my intent. It is not in the legislation because it cannot be. Hon DERRICK TOMLINSON: No. Hon Peter Foss: I have written this in a way that allows the Government and, in particular, the Attorney, to have control. That is important. If it got out of the hands of the Government and the Attorney, it could become a wild weapon. I do not intend that it should be. I have purposely put in division 3 as a simplified legislative process. Hon DERRICK TOMLINSON: One way of tackling the problem is to suggest that your commencement, instead of being in the terms “such day as is or days as are respectively”, which allows progressive implementation, you could spell out some progressive implementation in the commencement. Hon Peter Foss: It does not really help, because we may do nothing at stages one and two and then use stage three instantly. That does not help. Hon DERRICK TOMLINSON: Please run through that again. We do nothing at stages one and two. Hon Peter Foss: Stage one starts, and we do nothing. Stage two starts, and we again do nothing. However, stage three might have the lot. Hon DERRICK TOMLINSON: So, we do stage three because stages one and two have had no effect. Hon Peter Foss: Once all three stages are in, there is nothing to stop that happening. The real control is Parliament. We have certain elements in the upper House that might not agree to an unreasonable stage three without justification. The political process is the control - we must have the approval of both Houses. I have purposely included that for my own protection. As Attorney, it is occasionally handy to know that certain things will not get through the upper House, because I do not want them to. Hon DERRICK TOMLINSON: In which case, those words that you believe are unnecessary become necessary. Hon Peter Foss: No. The ultimate protection is the upper House. Standing Committee on Legislation 13 September 2000 Page 16 Hon DERRICK TOMLINSON: It must be made clear that without the conscious decision of Parliament to approve - Hon Peter Foss: You are referring to the extra words. Hon DERRICK TOMLINSON: Yes. Hon Peter Foss: I take the point. The CHAIRMAN: Do you wish to supply some information? Hon Peter Foss: I will provide some information after the meeting is adjourned. Hon GIZ WATSON: I would like questions 5 to 7 clarified. Hon Peter Foss: I thought we dealt with those; nevertheless, let us deal with them specifically. The regulations will be passed and laid before Parliament. It will then be up to the Government to try to get an affirmatory motion passed as the regulations will have no effect until that occurs. Hon DERRICK TOMLINSON: Why not bring them in with such a motion? Hon Peter Foss: One is an executive act, and one is a legislative act. It is a bit like bringing in a message to some extent. The intent was to publish regulations and to start the public process. We are not entering a three-reading process. It will be published in the Government Gazette so people will know that the regulations are being made. The next step will be to move affirmation in both Houses. A period will elapse before the motion comes before the Houses. This process will probably be more public than that with a Bill as many people keep an eye on the Government Gazette. The regulations will have a legal effect as a regulation, but will have no impact until a positive resolution is achieved. No limit will apply to how long it may take to do that, in the same way that no limit applies to how long it takes to bring in and pass a Bill. Hon DERRICK TOMLINSON: It may not be the Government's intention to act immediately, but it wants to bring to the attention of the reader of the Government Gazette that it has made the regulations. Hon Peter Foss: Yes. It may be a long process. It may be some period before a resolution is made by both Houses of Parliament. The motion may be brought in during the last six weeks of Parliament, and another motion may need to be moved in the next session of Parliament. The matter will then eventually be passed in the negative or affirmative. A negative result will repeal the regulation, and an affirmative result will bring it into effect at a fixed time or a time stipulated in the regulation. Hon DERRICK TOMLINSON: My concern is with the commencement of the process. After it is gazetted, it will not be until a person in Parliament moves formally for approval that the processes continue. That might be a government member or another member. Once gazetted, why does the Attorney General or the relevant minister not move the affirmative motion, as though he were bringing a message to the House? Hon Peter Foss: He would. One would not pass the regulations, unless one intended to move in the House that they be affirmed. It would be a waste of time otherwise. Hon DERRICK TOMLINSON: Then why not bring it to the House as an affirmative motion? Hon Peter Foss: The regulation is your virtual first or second reading. That is the way it will be published to the world. The following period will allow the political process to be considered. A motion must then be affirmed. If it is not affirmed, the regulations will be repealed. One may want to take as much time as is necessary to get it passed. If it is not Standing Committee on Legislation 13 September 2000 Page 17 affirmed or negatived, the motion lapses and one must bring another motion to Parliament during the next session to seek affirmation. It will still be the same regulation. When it is brought to the vote, the regulations will be repealed if a negative vote is made in either House. If one has an affirmative vote in both Houses, the regulations will apply at a time fixed in the Act, or, if later, the time fixed in the regulation. Even after it has been affirmed by the Houses, the regulations could be repealed with a click of the fingers. It was important to have regulations as we wanted to have the capacity for Executive Government to get rid of them. It is possible for the Executive Government to take out the regulations almost instantly. One would not go through the process to remove them unless something that should not be included was discovered. It is important to keep it under executive control. People should not be able to hoick up penalties. As a result of their more immediate effect upon the courts, it must be under the control of the Government. The regulations have financial and many other implications. That requires Government responsibility as it will take the rap. I do not want other people getting uptight and sending people to jail for another 10 years, leaving me to build the jails and deal with the social implications of that action. They had citizens’ initiated referenda in Oregon, where they put in a sentencing matrix. They hoicked up all the penalties under a CIR. The Government there took the responsibility of housing all the prisoners, but another CIR was passed at the same time which said that the Government could not spend any more money in that area. It was an almost impossible situation. The CHAIRMAN: These regulations will not be subject to the delegated legislation procedure. Once they are gazetted, they are tabled - Hon Peter Foss: There is no reason that they not be subject to the delegated legislation procedure. The CHAIRMAN: The committee’s terms of reference are narrow. Hon Peter Foss: It could pick them up and report on them. Hon DERRICK TOMLINSON: I ask about the Executive abolishing sentencing regulations with the click of the fingers. Does proposed section 101K(9) of the Sentencing Act mean that a regulation may abolish the sentencing method? Hon Peter Foss: Yes. Hon DERRICK TOMLINSON: That would be done by regulation, so the Interpretation Act applies. Therefore, it must go through the process of disallowance. Hon Peter Foss: Yes. Hon DERRICK TOMLINSON: There will still be parliamentary scrutiny. Hon Peter Foss: It will allow the Executive to move quickly, which is fairly important. The CHAIRMAN: Under standing orders, the committee is out of time. Thank you for your appearance today. Committee adjourned at 3.30 pm.