Many commentators have been quick to condemn the move, including Victorian Supreme Court Justice David Harper, long time NSW Director of Public Prosecutions Nicholas Cowdery QC and the Law Institute of Victoria. The criticism has focused on the potential for the survey to inaccurately reflect the public’s views on sentencing and undermine faith in the judicial system. As Justice Harper pointed out, the survey makes no reference to the cost of imprisonment and the associated opportunity cost of spending public funds on incarceration. According to the Productivity Commission, every Victorian inmate costs almost $88 000 a year, compared with $7000 for a community corrections order. The Victims of Crime Association has expressed support for the concept.
The Department notes on its website that ‘sentencing is one of the most demanding aspects of our legal system.’ However the survey seems to make little effort to grapple with the complexities of the topic. It provides a summary of a hypothetical crime in a few sentences and asks the respondent for their views on issues like minimum sentences and minimum non-parole periods.
Section 5 of the Sentencing Act 1991 (Vic) sets out five purposes for the court to consider when sentencing adult offenders in Victoria. They are to punish, deter and rehabilitate offenders, to denounce their behaviour and to protect the community. There are also a range of factors that the court must take into account, both aggravating and mitigating.
A Tasmanian study undertaken earlier this year found that 90 per cent of jurors, when informed of the sentencing reasons in particular cases, thought the judge’s sentence was very or fairly appropriate. Based on jurors’ responses from 138 trials, the study found that more than half of the jurors surveyed suggested a more lenient sentence than the trial judge imposed. A Victorian study conducted between 2004 and 2006 also found that judges were not more lenient than the community. Significantly in respect of the Department’s survey, the Victorian study also found that the participants did not have firm views as to what is an appropriate sentence in any one case.
Victoria already has a Sentencing Advisory Council, established in 2004 under Part 9A of the Sentencing Act 1991. Its goal is to educate and advise the community on sentencing issues. It has published a range of reports dealing with a variety of issues. This body has the capacity and resources to provide careful consideration and sage analysis to the public which is sensitive to the difficulties inherent to the topic of sentencing.
Arie Freiberg, chairman of the Sentencing Advisory Council (‘SAC’), has commented that the survey’s method is unscientific and the SAC would be unlikely to consider it. Freiberg argues that the survey encourages unreflective responses and does not include information on the circumstances accompanying crime or the cost of imprisonment. It has also been argued that the survey’s results will be compromised by self-selection of respondents and insufficient controls on multiple responses from the same IP address.
Victoria has the second lowest prison population relative to population in Australia. The long term trend is upward, however, with the prison population more than doubling in size over the last thirty years. This presents significant challenges from a financial and social policy perspective.
The outcome of the survey looks set to contribute to the ‘tough on crime’ agenda of the Liberal government. This includes other proposals, such as mandatory minimum terms for young offenders convicted of violent crimes. That proposal has also been subject to fierce criticism, as judges have traditionally relied on their discretionary powers to sentence offenders in a manner that reflects the particular circumstances of the case. This is particularly important in cases where the offender is suffering from a mental illness.
LIZZIE O’SHEA is a Melbourne lawyer.