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Sentencing in the Koori Court Division of the Magistrates' Court

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Sentencing in the Koori Court Division of the Magistrates' Court Sentencing in the Koori Court Division of the Magistrates’ Court A Statistical Report Sentencing Advisory Council October 2010 Published by the Sentencing Advisory Council Melbourne, Victoria, Australia This report reflects the law as at 7 October 2010. © Copyright State of Victoria, Sentencing Advisory Council, October 2010. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth). ISBN 978-1-921100-64-2 (Print) 978-1-921100-65-9 (Online) Authorised by the Sentencing Advisory Council, Level 4, 436 Lonsdale Street, Melbourne VIC 3000 Printed by BigPrint, 50 Lonsdale Street, Melbourne Publications of the Sentencing Advisory Council follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citation (3rd ed, 2010). Printed on recycled paper ISO 14001 environmental management system in place. iii Contents Contents Contributors v Acknowledgements v Glossary vi Chapter 1: Introduction 1 Background 1 The Council’s Approach 2 Phase One 2 Phase Two 2 Methodology for Phase One 2 Data Analysis 2 Information Gathering 3 Chapter 2: Background 5 Royal Commission into Aboriginal Deaths in Custody 5 Victorian Aboriginal Justice Agreement 8 Non-adversarial Justice 9 Chapter 3: The Koori Court of Victoria 11 Establishment of the Koori Court 11 Jurisdiction 12 Indigenous Status 13 Offence Type 13 Guilty Plea 14 Consent 14 Aims 14 Practices and Procedures Addressing Court Aims 15 A Culturally Relevant, Comprehensible and Inclusive Court Process 15 The Courtroom 16 Roles and Seating Arrangements 16 Order of Proceedings 18 Chapter 4: Sentencing in the Koori Court 21 Approach to Sentencing in the Koori Court 21 Determination of Sentence 21 Supervised and ‘Meaningful’ Sentencing Outcomes 23 Increasing Use of the Koori Court 25 Age and Gender 26 Social and Economic Disadvantage 28 Education 29 Employment 29 Sentencing in the Koori Court Division of the Magistrates’ Court iv Sentencing Outcomes 30 Types of Offences Sentenced 30 Distribution of Sentences 32 Distribution by Prior Convictions 34 Distribution of Sentences by Principal Proven Offence 37 Offences Against the Person 37 Causing Injury Intentionally or Recklessly 37 Unlawful Assault (or Common Assault) 39 Assault/Hinder/Resist Police 40 Causing Serious Injury Recklessly 42 Offences Against Property 44 Theft (Including Vehicle) 44 Burglary 46 Criminal Damage (Intentionally Damage/Destroy Property) 48 Obtain Property by Deception 50 Driving and Traffic Offences 52 Drink Driving (Exceeding the Prescribed Concentration of Alcohol in Breath Within Three Hours of Driving a Vehicle) 52 Driving While Authorisation Suspended/Disqualified 54 Careless Driving 56 Chapter 5: Summary 59 Age and Gender 59 Socio-Economic Disadvantage 59 Most Frequently Sentenced Principal Proven Offences 60 Distribution of Sentences 60 Distribution by Principal Proven Offence 61 Appendix 1: Data Methodology 63 Data Source 63 Data Quality: Koori Court 63 Data Quality: Magistrates’ Court 64 Appendix 2: Technical Appendix 65 Appendix 3: List of Meetings 66 References 67 Bibliography 67 Case Law 69 Legislation and Bills 70 Victoria 70 Other Jurisdictions 70 v Contributors Contributors Authors Dennis Byles Tal Karp Sentencing Advisory Council Chair Arie Freiberg AM Deputy-Chair Thérèse McCarthy Council Members Carmel Arthur Hugh de Kretser David Grace QC Ken Lay APM Jenny Morgan Barbara Rozenes Gavin Silbert SC Lisa Ward David Ware Chief Executive Officer Stephen Farrow Acknowledgements The Council would like to thank all of those who met with Council staff in relation to this report. The Council would also like to acknowledge the assistance of the following people: Julie Bransden, Jenni Coady, Geoff Fisher, Karen Gelb, Nina Hudson, Catherine Jeffreys, Donald Ritchie and Felicity Stewart. Sentencing in the Koori Court Division of the Magistrates’ Court vi Glossary Accused In this report, references to ‘accused’ persons appearing before the Koori Court are to persons charged with one or more offences who plead guilty, intend to plead guilty or intend to consent to an adjournment to participate in a diversion program.1 Adjourned Undertaking (AU) Unsupervised release, with or without recording a conviction, (Sentencing Act 1991 (Vic) ss 72–79) for a period of up to five years, with conditions that the offender appear before the court if called to do so, that the offender remain of good behaviour during the period and that the offender observe any special conditions imposed, including supervision, treatment and/or unpaid community work (maximum two years). Compliance with the order is supervised by Community Correctional Services. Case Consolidation When two or more separate cases are combined into one case for the purposes of sentencing. Case consolidation enables a magistrate to sentence an accused person for all charges arising from several, separate cases, minimising the number of times the accused has to appear before the court. Community Based Order (CBO) Supervised, non-custodial sentence, with or without recording (Sentencing Act 1991 (Vic) ss 36–48) a conviction, with conditions including supervision, treatment and/or unpaid community work (maximum two years). Compliance with the order is supervised by Community Correctional Services. Court Integrated Services Program (CISP) Operating in place of the CREDIT/Bail Support Program at the Latrobe Valley, Melbourne and Sunshine Magistrates’ Courts, the program aims to reduce recidivism by providing accused persons at ‘moderate/high risk of offending’ with case-management support and referrals to services, including drug and alcohol treatment programs, accommodation, mental health services and access to the Aboriginal Liaison Officer Program. To be eligible for the program, the accused person must be assessed as having health or social needs that can be assisted by the CISP team, and that warrant intervention, such as drug or alcohol dependency, economic or social disadvantage contributing to their offending behaviour or mental or physical disabilities or illnesses. The accused person may be on summons or bail and must consent to the program.2 Courtlink A database used by judicial members and court staff to record details of Magistrates’ Court cases, including those before the Koori Court Division of the Magistrates’ Court. For each case, the Courtlink database records the type of offences charged, their statutory references and corresponding sentencing outcomes. Demographic information is also recorded; however, this is generally limited to the age and gender of accused persons. 1 Magistrates’ Court Act 1989 (Vic) s 4F(1)(c); see also Criminal Procedure Act 2009 (Vic) s 3. 2 Department of Justice, Victoria, ‘Court Integrated Services Program (CISP)’, Brochure (2008). vii Glossary CREDIT/Bail Support Program This program is an amalgamation of the Court Referral and Evaluation for Drug Intervention and Treatment Program (CREDIT) and the Bail Support Program. Aiming to ‘increase the likelihood of a defendant being granted bail and successfully completing a bail period’, the program assists accused persons with access to assessment and treatment programs for drug-related issues, case management (for up to four months), short-term accommodation and welfare and other support, as required. To obtain referral to the CREDIT/ Bail Support Program, an accused person must be eligible for bail and must not be on a current court order that entitles them to access drug and alcohol treatment; however, persons in breach of a current court order may be eligible for the program. The program operates at seven Victorian Magistrates’ Courts, including the Broadmeadows Court.3 Criminal Justice Diversion Program A program that provides accused persons with the opportunity (Criminal Procedure Act 2009 (Vic) s 59) to be diverted from the normal criminal process. If an accused person acknowledges responsibility for the offence(s) and undertakes prescribed conditions, the accused will avoid the risk of a finding of guilt being made against them. The program can only be recommended if the offence is triable summarily, the accused admits the facts, there is sufficient evidence to gain a conviction, the prosecution and the accused consent and a diversion is considered to be appropriate by the magistrate in the circumstances. E-Justice A database combining records from police, courts and corrections for each case and allowing the accused person’s progress to be tracked as they interact with these three branches of the legal system. The E-Justice database will be used in Phase Two of this project. Fine A monetary penalty that can be issued in addition to, or (Sentencing Act 1991 (Vic) ss 49–69) instead of, another sentencing order (with or without recording a conviction). Fine amounts for specific offences are referred to in penalty units, which are indexed annually. For the financial year commencing 1 June 2010, the penalty unit amount is $119.45. Imprisonment A term served by confinement in prison (referred to as an (Sentencing Act 1991 (Vic) ss 9–18P) ‘immediate’ term of imprisonment), or in other ways, such as by intensive correction order. The maximum term to be imposed for an offence is specified in legislation, although courts generally have the discretion to sentence an offender to less than the maximum penalty. Indigenous In this report, unless otherwise specified, references to ‘Indigenous’ people include Torres Strait Islander people. 3 3 Department of Justice,
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