Minimum standard non-parole periods FINAL REPORT September 2011 Minimum standard non-parole periods FINAL REPORT ii Published by the: Sentencing Advisory Council Level 30, 400 George St Brisbane Qld, Australia 4000 GPO Box 2360 Brisbane Qld 4001 Tel: 1300 461 577 Fax: (07) 3405 9780 Email: [email protected] www.sentencingcouncil.qld.gov.au This publication is available for download from the Council’s website. © State of Queensland (Sentencing Advisory Council) 2011 Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced, stored in a retrieval system or transmitted by any process without prior permission. Inquiries should be addressed to the Sentencing Advisory Council as the publisher. National Library of Australia Cataloguing-in-Publication data: Sentencing Advisory Council (Qld). Minimum standard non-parole periods: final report / Sentencing Advisory Council (Qld). ISBN 978-0-9871456-2-8 (pbk). Prison sentences—Queensland. Sentences (Criminal procedure)—Queensland. Criminal justice, Administration of—Queensland. 364.6209943 This publication follows the referencing style of the Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, 3rd ed, 2010). Disclaimer This report is not intended to provide legal advice, and has been prepared by the Council only to respond to the Terms of Reference issued to it by the Attorney-General. While all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. Editor: Col Cunnington Printed by: Kingswood Press iii iv CONTENTS Tables vi Figures vii Preface ix Acknowledgments xi Abbreviations xii Executive Summary xiii Recommendations xxv Chapter 1: Introduction 1 1.1 Background to this report 1 1.2 Our approach 2 1.3 Overview of consultation process and feedback 3 1.4 SNPPs and parole 5 Chapter 2: Standard non-parole periods: an overview of existing schemes 7 2.1 Introduction 7 2.2 New South Wales 8 2.3 Northern Territory 11 2.4 South Australia 11 2.5 Victoria 12 2.6 Commonwealth 12 2.7 Canada and New Zealand 12 Chapter 3: The introduction and objectives of a Queensland SNPP scheme 15 3.1 Views on the introduction of a SNPP scheme in Queensland 15 3.2 The Council’s view on the introduction of a SNPP scheme in Queensland 20 3.3 Meeting the Queensland Government’s objectives 22 3.4 The Council’s view on the objectives of a Queensland SNPP scheme 31 3.5 Conclusion 33 Chapter 4: A Queensland SNPP scheme 35 4.1 The Council’s preferred model for a SNPP scheme: guiding principles and broad approach 35 4.2 Should a Queensland SNPP scheme be a defined term or a standard percentage scheme? 41 4.3 How should a standard percentage SNPP scheme operate with Part 9A of the Penalties and Sentences Act? 44 4.4 Limiting the scheme to serious offending 49 4.5 Eligibility criteria and exclusions 50 4.6 Defining what a SNPP represents 58 4.7 Setting SNPP levels 60 4.8 Grounds for departure 66 v Chapter 5: The offences to which a Queensland SNPP scheme should apply 71 5.1 What offences are currently defined as ‘serious violent offences’ and ‘sexual offences’? 71 5.2 What offences do other similar schemes apply to? 72 5.3 How might offences be selected? 74 5.4 The Council’s view 77 5.5 The application of the SNPP to manslaughter, rape and unlawful carnal knowledge 79 5.6 The exclusion of murder 82 5.7 Focusing on specific criminal conduct 84 Chapter 6: Implementation of a Queensland SNPP scheme 87 6.1 Introduction 87 6.2 Possible impacts of a SNPP scheme on the Queensland criminal justice system 88 6.3 Should the scheme operate retrospectively? 93 6.4 Monitoring and evaluation 95 Appendixes 99 Appendix 1: Terms of Reference 99 Appendix 2: Consultations 101 Appendix 3: Submissions 105 Appendix 4: Serious violent offences and sexual offences in Queensland 108 Appendix 5: Results of sensitivity analysis on impacts of proposed new SNPP 125 Glossary 127 References 131 Endnotes 135 Tables Table 1: Overview of the application of the new Serious Offences SNPP Scheme 38 Table 2: Number of defendants sentenced in the higher courts and possible impact of the proposed 65 per cent SNPP, 2005–06 to 2009–10 90 Table 3: Qualifying ‘serious violent offences’1 and ‘sexual offences’2 for the purposes of Parts 9 and 9A of the Penalties and Sentences Act 1992 (Qld), applicable maximum penalties, the availability of an indefinite sentence3 and ability to be dealt with summarily 108 Table 4: The potential impact of missing information on Aboriginal and Torres Strait Islander status on the number of defendants sentenced in the higher courts who would have been affected by the proposed SNPP scheme, 2005–06 to 2009–10 126 vi Figures Figure 1: Number of prisoners at 30 June 1995–2009, NSW, Queensland and Australia 11 Figure 2: Overview of the application of the proposed new Serious Offences SNPP Scheme 40 Figure 3: Proportion of defendants sentenced in the higher courts who would have been affected by the proposed 65 per cent SNPP: out of all sentenced defendants, 2005–06 to 2009–10 91 Figure 4: Proportion of defendants sentenced in the higher courts who would have been affected by the proposed 65 per cent SNPP: out of all defendants sentenced for a prescribed serious violent offence or sexual offence, 2005–06 to 2009–10 92 Figure 5: Proportion of defendants sentenced in the higher courts who would have been affected by the proposed 65 per cent SNPP: out of all defendants sentenced for a prescribed serious violent offence or sexual offence sentenced to immediate full-time imprisonment, 2005–06 to 2009–10 92 vii Sentencing Advisory Council Chairperson Professor Geraldine Mackenzie Deputy Chairperson Nicholas Tucker Members John Allen Kelvin Anderson PSM Bob Atkinson APM Jonty Bush Kevin Cocks AM Bob Colless Beryl Crosby Jeff Hunter SC Christy McGuire Tony Moynihan SC Council Secretariat Director Anne Edwards Legal Policy Victoria Moore Thomas Byrne Nadine Seifert Research Leigh Krenske Dr Travis Anderson-Bond Dan Pelusi Community Engagement Samantha Keegan and Communications Jenelle de Souza Administration Bruce Hanwright Vivien Jones viii Preface the Council. The impacts on victims of serious crime and their families can be devastating, and This report presents the Council’s advice, continue long after an offender has served their pursuant to s 203L(1)(b) of the Penalties and sentence. Sentences Act 1992 (Qld), on Terms of Reference issued by the Queensland Attorney-General to As part of our consultations on the Reference, the examine and report on the offences to which a Council has also sought the views of Aboriginal Queensland minimum standard non-parole period and Torres Strait Islander community members, scheme should apply and the levels at which those many of whom have expressed grave concerns non-parole periods should be set. about the potential impact of a minimum non-parole period scheme on members of This reference has been challenging and their communities. The over-representation of controversial. Views on sentencing are strongly Aboriginal and Torres Strait Islander people in held, both by those who work in the criminal prison cannot be ignored, and the commitment of justice system and members of the general the Queensland and Commonwealth governments public. Many in the legal profession and other to addressing this issue has remained central to key stakeholder groups have expressed the view the Council’s considerations. that the introduction of standard non-parole periods is potentially a form of mandatory Those support services who work with other sentencing, and are concerned about the possible vulnerable groups (for example, people with a impact on judicial discretion. Conversely, many mental illness or cognitive impairment) have also in the general community are of the view that voiced their concern about the potential negative minimum standard non-parole periods will not impacts of such a scheme on these individuals. In go far enough to curb what they perceive to developing its recommendations, the Council has be wrong decisions made in sentencing serious been very conscious of the need to balance the violent offenders and sexual offenders who have interests of ensuring the harm caused to victims is caused significant harm. Balancing the complexity properly recognised and reflected in the sentence of opposing views has represented a significant imposed, with the need to ensure vulnerable challenge for the Council. offenders are not disproportionately affected by any new approach adopted. At the same time, there is broad agreement that consistency and transparency are legitimate and Finally, the Council has taken into account how important objectives of any modern sentencing standard non-parole period schemes operate in system, and that sentencing must not just be about other jurisdictions, with particular regard to the punishment, but also making the community approach in NSW, as requested in the Terms of safer. Where there are differences is in views on Reference. In developing its recommendations the best means of achieving these objectives, and on the best form of scheme for Queensland, the capacity of the current sentencing system to the Council has considered the functionality of deliver them. these schemes and how elements of them might apply in Queensland. The Council has also been The Council has listened carefully to all views conscious of the need to ensure that any model expressed during the course of the Reference. The recommended will operate effectively in the Council has also been careful to acknowledge the Queensland context.