By Adam Fletcher

What is the point of a criminal justice system? This may seem to be a rhetorical question, but Australians are clearly divided over the answer.

On 27 July this year, Victorian Attorney-General Robert Clark announced a survey in which “all Victorians are invited to have their say on sentencing.” The Attorney-General says the survey fulfils a pre-election promise to “seek the views of the community about key issues affecting the future of sentencing in our state.” The survey is being run on MyViews, hosted by the Victorian Justice Department, and is “supported by a number of Victorian media outlets.” These outlets are not specified in the Attorney-General’s media release, but a brief Google search seems to suggest that the Herald Sun is chief among them.  The paper’s editorial on 27 July called the initiative a “significant contribution to democracy.” Despite the Attorney‑General’s carefully inclusive language, an accompanying article on the same day modestly explained: “Herald Sun readers’ views will be used to help set new baseline jail terms that judges will be expected to impose in the most sweeping reforms to Victoria’s justice system in more than 20 years.”

The Herald Sun, along with sister publications the Courier-Mail and Daily Telegraph, have made their own views on the ‘softness’ of sentencing throughout Australia plain, and the comments and letters they publish suggest their readers support their continual calls for tougher penalties across the board.  It is said a politician should never initiate a public inquiry or survey without knowing the result in advance, and this one appears to be a textbook example.

The MyViews site set up by the Department of Justice actually mirrors similar surveys abroad, and public consultation is certainly not a negative thing in itself.  However, this particular survey falls short of the kind of rigorous consultation which should inform any amendment to the law. More able commentators than I have already explained why it does not conform to basic requirements for normal political polls (let alone the sorts of serious studies undertaken by the Law Reform Commission whose job it is to evaluate the appropriateness of sentencing laws). As such, the survey should not be used to decide the future of law relating to sentencing in Victoria as the Herald Sun would have it.

Rather than reiterate the arguments put by others against this survey idea, I would like to focus on why we have an independent criminal justice system in the first place, and what international law has to say about sentencing. The principal goals of any system of criminal law are to prevent and punish crime. Effective protection of the community, which is what the Attorney‑General says he wants to achieve, requires the justice system to strike a balance between these two imperatives. However, international experience has shown repeatedly that a solely reactive approach to crime is undesirable and that tough sentencing does not necessarily make for a safer community.

For the punishment of serious crime, the system we have adopted in Australia is imprisonment. Instinctively, most people would probably agree that a significant gaol term is the appropriate punishment for violent offenders. However, opinion differs markedly over how long these sentences should be. In considering their position on the appropriateness of penalties, Australian governments at all levels ought to consider Australia’s relevant treaty obligations (which apply to all Australian laws – not just federal ones). Article 10(3) of the International Covenant on Civil and Political Rights provides:

The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Australia actually has a reservation to article 10 which says it will only accept the obligation to separate juveniles and adult prisoners “to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned,” but we have accepted the first sentence above as binding on us at international law. Contrary to the assertions of the critics, human rights norms such as these do not aim to protect convicted criminals from the sentences they deserve.  Article 10(3) reflects a fundamental notion that prisons exist to reform criminals and rehabilitate them to be able to participate positively in society.  Even in jurisdictions with harsh sentencing regimes, most prisoners will be released into the community eventually. The only exceptions are those sentenced to life without parole or the death penalty – and such sentences are in decline internationally. So if the prison system is not focused on rehabilitation, community safety will inevitably suffer.

Naturally, some crimes are more heinous than others, and some criminals are difficult to reform. This brings us to the subject of proportionality, which is central to an approach to sentencing which is compatible with human rights. In relation to the particularly controversial issue of sentencing children and teenagers, the UN’s Standard Minimum Rules for the Administration of Juvenile Justice emphasise that the

…response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reaction (for example by having regard to the offender’s endeavour to indemnify the victim or to her or his willingness to turn to a wholesome and useful life).

The requirement to deal with juvenile offenders in a manner which is “proportionate to their circumstances and the offence” is also reflected in article 40(4) of the Convention on the Rights of the Child, which is binding on Australia.

This proportionality principle (as it applies to both children and adults) has been accepted as fundamental to Australian criminal law too – a majority of the High Court said in the 1988 case of Veen v R that “[t]he principle of proportionality is now firmly established in this country.” In a more recent (2005) case, Markarian v R, the Court called the principle of proportionality “one of the fundamental principles of sentencing law.” This principle isn’t just some obscure piece of criminal jurisprudence either – it’s what ensures we receive fines for minor infractions such as petty theft or littering in Australia, rather than a long prison sentence or indeed even corporal punishment such as 50 lashes, amputation or stoning.

This is the routine work of Australian criminal courts – after a conviction (whether of a juvenile or an adult), they assess all the circumstances and arrive at an appropriate sentence. There are dozens of factors to be taken into account (called aggravating and mitigating factors) in determining the right sentence in each case – far more than can be captured in a brief media article or survey question. In fairness, the MyViews survey attempts to deal with these factors by asking whether/how some of them would affect ‘your’ sentencing decision, but the questions where respondents are asked to choose a sentence (which are apparently based on aspects of actual cases) provide two scant paragraphs to summarise cases in which the real evidence would doubtless run to hundreds if not thousands of pages.

Even before the survey results are known, the Attorney-General says his government is moving to abolish suspended sentences and end home detention. What if these sentences are the only appropriate option – for example in a case where the offender is suffering from serious health issues and incarceration would be too cruel? This and anticipated further ‘strengthening’ of Victorian sentencing law should be opposed because it short‑circuits the process of imposing the fairest possible sentence based on consideration of all the circumstances of each case.

In 2002, the NSW Government introduced a Standard Minimum Sentencing law which placed the emphasis firmly on “adequate punishment,” “accountability” and “recognition of the harm done.” It introduced a requirement for courts imposing non-custodial sentences to explain themselves, in stark contrast to the sensible approach in the current Victorian Sentencing Act 1991, which provides relevantly:

5(3): A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

5(4): A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

The NSW Act also set minimum non-parole periods for a whole range of offences, again requiring any court wishing to impose a lesser sentence to explain itself.  Admittedly the Victorian legislation requires courts to place a higher priority on protection of the community when it comes to serious offences, but it still leaves it up to the court to decide whether to impose a longer sentence than would normally be “proportionate to the gravity of the offence considered in the light of its objective circumstances.”   Essentially, the Victorian legislation respects the principle of proportionality but the revised NSW legislation does not.  The 2002 NSW amendments shifted the emphasis away from rehabilitation and dealt a blow to the careful balance developed over many years by the courts and reflected in the international treaties mentioned above. If this is a glimpse into Victoria’s future, it is a worrying one.

A Tasmanian study by the Australian Institute of Criminology on public (jury) attitudes to sentencing recently showed that many of those who had the impression that such a balancing process was often unfair to the victim and/or the community changed their minds when presented with all the facts a judge has to consider. The Tasmanian study concluded:

The results show that a substantial majority of jurors with firsthand experience of judges consider that sentences are appropriate and that judges are in touch with public opinion. By surveying members of the public who have engaged directly with the criminal justice system in a much more meaningful way than those who form their perceptions secondhand via the mass media, the study has shown that the jury survey methodology provides a better approach to finding a reliable source of informed public judgment of judicial sentencing.

A Melbourne University study conducted in 2004-06 came to a similar conclusion. These studies highlight the danger of the Victorian proposal, which risks basing criminal law reform on a skewed sample of the public who may well have learned everything they know about the adequacy of Australian sentencing practices through just one media source.

If the Herald Sun’s editorial of 30 July 2011 is correct, the respondents will be “tens of thousands of our readers,” providing “the Government with an in-depth indication of their opinions.” In defence of the process, the editorial points out that a previous survey, conducted in a joint effort between the newspaper and the Kennett government, produced more moderate results than critics expected. This misses the point – regardless of the results, the critics were (and are) right to warn of the dangers of using such a poll as a basis for amendments to legislation with potentially grave consequences, both for offenders and for Victorian society as a whole.