Criminal Procedure Bill risks soft sentences due to court backogs

Hansard: 6 December 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Criminal Procedure Legislation Amendment Bill is a bill that will require judges to disclose sentence discounts for guilty pleas, will allow judges to give indications of sentences that accused persons would receive and will make miscellaneous amendments to criminal law and procedure.

The provisions that relate to sentence discounts for guilty pleas are contained in clauses 3 and 4 of the bill.

They provide that if a court imposes a less severe sentence because an accused pleads guilty, the court must state the sentence it would have applied but for the guilty plea in cases where the offender is jailed or fined more than 10 penalty units for the offence or 20 penalty units in aggregate. In the case of the Children’s Court, the but-for sentence must be stated if the child is sentenced to a youth attendance order, a youth residential centre order or a youth justice centre order. In the case of guilty pleas in other instances, the court has the option of stating what the but-for sentence would have been.

In relation to sentence indications in the Magistrates Court, the bill provides that at any time during a criminal proceeding the court may indicate that if the defendant pleads guilty at that time, the court would be likely to impose a jail sentence or sentence of a specified type. If the defendant then pleads guilty at the first available opportunity, the court may not impose a more severe type of sentence than indicated.

In relation to County Court and Supreme Court criminal proceedings, the bill provides that on the application of the accused with the consent of the prosecutor the court may indicate that if the accused pleads guilty, the court would or would not be likely to impose a jail sentence. Those provisions are contained in clauses 5 and 7 of the bill. Clauses 8 and 9 provide that the sentence indication provisions are intended to alter section 85 of the constitution to prevent appeals against sentence indications.

The bill also sets a maximum sentence of five years imprisonment for the common-law offence of wilful exposure. It provides that the striking out of charges in the Magistrates Court, if certain paperwork is not lodged on time, is to be in future discretionary, whereas currently it is mandatory, and that is provided in clause 13 of the bill. There are provisions in clause 14 of the bill regulating mentions hearings in the Magistrates Court.
Clause 15 provides that if an accused is committed for trial by a Magistrates Court, the accused must plead either guilty or not guilty — in other words, they can no longer reserve their plea as they are currently entitled to do. The bill also provides that the maximum value of damage for which a person can be tried summarily — that is, in the Magistrates Court — is raised from $500 to $5000.

The main provisions of the bill relating to sentence indication and sentence discounts are being introduced following a report of the Sentencing Advisory Council in September 2007. It conducted a detailed inquiry into these issues and provided a very detailed report. The preface to the report from the head of the Sentencing Advisory Council, Professor Arie Freiberg, makes clear that there were two reasons for the undertaking of the inquiry, the first being the Victorian sexual assault reform project, and the second being the government’s justice statement of May 2004. The preface makes it clear that stakeholders consulted by the project team identified sentence indication as holding particular promise as a means of encouraging offenders charged with sexual offences to plead guilty.

An important objective identified in the justice statement was to modernise and streamline criminal procedure to increase the efficiency of administration of justice, and specifically to address the problem of delay — that is, the high proportion of proceedings that fail to proceed when they should. These two particular considerations giving rise to the inquiry are significant when one has regard to the recommendations that ultimately emerged from the inquiry and when one has regard to the provisions of the bill that is before the house.

In relation to both sentence discounts — that is, making explicit what the discount is that a judge gives to the sentence that an accused is given where the accused pleads guilty compared with the sentence that would have applied had they pleaded not guilty — and the issue of sentence indication — that is, for an accused to get an indication of what sort of sentence they might receive if they were to plead guilty — there is a range of competing considerations and arguments for and against, and those are very well set out and assessed in the report of the Sentencing Advisory Council.

In essence, the argument in favour of an explicit statement of sentence discounts is that it promotes greater transparency and accountability of the court system and promotes greater consistency of sentencing if a court is required explicitly to make public what sort of discount has been given for the accused to have pleaded guilty.

If that is on the record, then it can be looked at by all concerned, and it makes it easier to assess whether or not the sentence given is appropriate and ensures that sentencing is consistent between an accused and different courts. That is the argument in favour. There is also a large number of concerns about how such a regime would operate in practice, which I will come to later.

In relation to sentence indication, again there are two main arguments in favour. The first is that accused persons are entitled to have a fuller range of facts available to them, or at the very least if you do not say that they are entitled to it, it certainly helps promote good outcomes in individual cases if they do have some idea as to what sort of sentence they would receive if they plead guilty.

Flowing on from that, it could be said to promote a more efficient operation of the court system if accused persons are in that position on the assumption that that will lead a greater number possessing greater certainty and to plead guilty at an earlier stage in the proceeding and thereby spare the court system the time and the cost of trials, and also spare victims and witnesses the trauma of having to give evidence. But on the other hand, there are a range of issues about how a sentence indication regime should be structured and operate in practice to prevent a number of risks and potential weaknesses.

Both aspects of the legislation are very complex, and as I said, the Sentencing Advisory Council devoted a lot of attention to exactly how these reforms could be structured. We now have the bill that has come before the house.

Given the complexity of these issues and given the very careful attention that the Sentencing Advisory Council gave to how to structure reforms on these two matters, it is a cause of great concern to the opposition that there are substantial discrepancies between what is in the bill and what was recommended by the Sentencing Advisory Council. It is of particular concern to the opposition that the Attorney-General’s second-reading speech did not address these departures, and in one instance in particular it seems to me that the Attorney-General completely misrepresented the contents of the Sentencing Advisory Council’s report. In referring to indicative sentences the Attorney General told this house that:

The Sentencing Advisory Council also recommended that this process be extended so that it is available in the County and Supreme courts.

However, when one turns to the Sentencing Advisory Council’s report itself, one sees that is completely untrue. As the preface makes clear at page ix in respect of the Sentencing Advisory Council:

We consider sentence indication would be unlikely to have a significant impact on the timing of defendants’ plea decisions in the Supreme Court or that court’s case load and for this reason have recommended against the introduction of such a scheme in that court.
So we have a head-on inconsistency between what the Attorney-General told this house about the Sentencing Advisory Council’s report and what the council itself recommended.

That is of concern not only in relation to the assessment of this issue but in relation to the veracity of the statements that were made to this house by our Attorney-General and whether or not his conduct has been inadvertently or deliberately misleading or deceptive of this house. I believe the Attorney-General owes this house an explanation in closing the second-reading debate, if not a personal explanation, as to how he came to make a statement to this house in the second-reading speech that is completely at odds with what the Sentencing Advisory Council recommended.

There are a wide range of issues that the Sentencing Advisory Council addressed and made recommendations on that appear to have been brushed aside, ignored or departed from in the bill before the house. The opposition is very much looking forward to these discrepancies being addressed by government members during the course of this debate.

For example, the Sentencing Advisory Council recommended that the sentence indication regime not be introduced at large for the Supreme and County courts — as the bill does. The council said that not only in relation to the Supreme Court, which I have just referred to, but it was explicit in saying that in the County Court sentence indication should be introduced as a pilot project. There is not a word about this being a pilot project in either the bill or the second-reading speech.

In recommendation 6 on page xv of the report there is a detailed prescription of the framework for a pilot sentence indication scheme recommended by the Sentencing Advisory Council, and there are many elements of that framework that are not addressed either in the bill or in the second-reading speech. In particular paragraph 2 of recommendation 6 says:

There should be a requirement for the victim to be consulted if a request for the sentence indication is made.

In this instance that is referred to as being the intention in the second-reading speech, but it is not in the bill. The Sentencing Advisory Council recommended in recommendation 7 that:

The Victorian government should review whether the current statute provisions governing the involvement of victims in criminal proceedings are adequate to ensure that victims will be consulted if a defendant requests sentence indication, and enact any amendments required to achieve this effect.

I would have thought that at the very least the second-reading speech should have addressed this issue and should have told the house whether or not the government had addressed and reviewed the adequacy of the current statutory provisions and provided some sort of assurance to the house that it had. If there had been any doubt about that matter, I would have thought the most straightforward approach would have been to make that requirement explicit in the bill before the house. One of the key concerns about the regime the government is introducing is that it is cutting out victims from the process.

The sentence indication takes place at an early stage in the proceedings before all the facts of the crime are before the court and certainly before it would be appropriate to bring a victim impact statement before the court. Therefore a victim can be locked out of the process.

A sentence indication can be given, but it might be that down the track when further facts come out it transpires that the offence was far more heinous than appeared at an early stage, and by that time it is too late. If the victim is to have any input into the process, as follows from good principle as well as from some of the sentiments in the government’s own victims charter, then it is vital to ensure the victim has a proper say, through the prosecution, as to whether or not the accused is able to apply at that particular stage for a sentence indication. Yet none of that is addressed in what has come before the house.

Other aspects that were recommended but are missing from the bill are:

If the judge indicates that an immediately servable term of imprisonment will not be imposed, he or she should be required to state whether, but for a guilty plea being entered at that stage of the proceedings, a more severe type of sentence would have been imposed.

That has just disappeared as far as the bill is concerned. Similarly, recommendation 8 states:

The Chief Judge should issue a note or direction to require a judicial officer, when providing a sentence indication, to state whether, but for a guilty plea being entered at that stage of the proceedings, a more severe sentence (an immediate term of imprisonment) would be indicated.

Again it may be the intention that there be a note or direction to that effect made under the regime in the bill, but it is not referred to.
Last, but certainly not least, is the caution set out by the Sentencing Advisory Council at the end of its recommendations at page xvi. I quote:

The council cautions against the inclusion of sexual offence proceedings in a pilot sentence indication scheme and suggests that proceedings in relation to fraud, other property and illicit drug offences may be particularly suitable for inclusion in a pilot project.

Other parts of the report make clear that the Sentencing Advisory Council is of the view that sexual offences should not be included in the County Court pilot in view of their sensitivity. Yet the bill and the second-reading speech are totally silent on this point.

It seems the government has determined to include sexual offences in this regime, contrary to the strong urging of the Sentencing Advisory Council. The opposition calls on government members and on the Attorney-General to address this point during the course of the debate.

It is not only the opposition that has grave concerns about many aspects of this bill. Certainly feedback I have received from a number of criminal barristers whose views I greatly respect backs up those concerns. It is fair to say there are other criminal barristers who are supportive at least of the general direction in which the legislation is going. But it is important that, if this legislation is going to proceed, we get it right and do not have a rushed, ill-considered regime that is going to substantially affect the rights and responsibilities of various parties to criminal proceedings and affect the operation of the criminal justice system as a whole.

On top of these sources of concern there is the report of the all-party Scrutiny of Acts and Regulations Committee. I have to say that I have seldom seen a more detailed and far-reaching critique of a bill brought before this house than the critique of the current bill in the report by SARC. SARC has raised a wide range of concerns, and it has referred many issues to the Attorney-General seeking further input. SARC’s concerns raise many points that should give this Parliament real cause for pause before proceeding with the legislation. On page 7 of the Scrutiny of Acts and Regulations Committee Alert Digest No. 16 of 2007, 4 December, it states:

The committee observes that neither this provision nor Victoria’s courts have, to date, placed any quantitative limit on the extent of the discount that may be available for a guilty plea. The committee also observes that a substantial sentence discount for pleading guilty, if communicated to defendants, may place pressure on them to plead guilty.

SARC goes on to say:

The committee observes that this procedure may place such defendants under heightened pressure to plead guilty, especially if the sentence indicated is a generous one.
…
The committee refers to Parliament for its consideration the question of whether or not the procedures provided for by clauses 3,4,5,7 and 15 may be incompatible with defendants’ charter rights not to be compelled to plead guilty.

I should indicate at this stage not only that the SARC report raises a range of legitimate concerns about this legislation but also that it points out some of the convolutions which not only SARC but public servants, this Parliament and the court system are being and will in future be put through for no particular benefit as a result of the specifications in the Charter of Human Rights and Responsibilities Act. I have been very critical of that act in the past. The SARC report makes clear how many complex issues can be triggered, not necessarily with good cause and on their merits but by SARC doing its duty and applying the Charter of Human Rights and Responsibilities Act to this bill. It is ironic that this bill is an illustration of the fact that the Attorney-General himself is being tied up in the very red tape that he has created.

At page 9 of the SARC report the committee addresses the same concern that I have referred to earlier about the effects on victims’ rights. It states:

The committee observes that sentence indication hearings may occur at an early stage and that victims therefore may not be as involved as they are in regular sentencing hearings. The committee therefore considers these provisions therefore engage the charter rights of victims to liberty and security to the extent that these are advanced by participation in the sentencing of those who committed offences against them.

The committee goes on to talk about other discrepancies between the Sentencing Advisory Council report and the bill along the lines that I have previously mentioned. It talks about issues of whether the bill will cause delays in criminal trials. If a defendant does not plead guilty after receiving a sentence indication, the court needs to be reconstituted. How will that operate in practice?

At page 10 the committee indicates it is seeking further advice from the minister as to what mechanisms are in place to ensure that victims are adequately consulted prior to a sentence indication hearing, whether, if a defendant pleads guilty but the court is reconstituted prior to the sentencing, the new judge will be bound by the sentence indication, and whether there is a reason why not. It is also seeking advice from the minister on whether, if due to a reconstitution of the court or a successful Crown appeal against sentence, a defendant who pled guilty after a sentence indication receives a higher sentence than the one indicated, the defendant will be automatically entitled to withdraw the guilty plea. These are all very fair and reasonable questions that should have been thought of and responded to by the government and the Attorney-General before this bill came before the Parliament.

SARC then goes on to raise a very interesting and legitimate concern in terms of following its duty to apply the charter, and that is in relation to the offence of wilful exposure. The committee refers to the charter provisions that provide that a person who commits a criminal offence the penalty for which is reduced before the person is sentenced is eligible for the reduced penalty. SARC goes on to make it quite clear that in some instances, as a result of setting a maximum sentence for wilful exposure, an accused ought to but would not get the benefit of this provision of the charter.

One might not have all that much sympathy for the people who commit wilful exposure, and the practical consequences of this issue may be minor indeed, but it is an illustration of the complexities that the Attorney-General has created for himself and for everybody else with the overly prescriptive provisions he has included in the charter. At page 13 of the SARC report the committee indicated it is seeking further advice from the minister about clause 13 of the bill, which relates to charges not being struck out if there are delays in paperwork, and whether that will impede the defendant’s access to information and lengthen the period between commencement of proceedings and the trial. SARC also raises concerns about the requirement that people will no longer be able to reserve their plea upon committal in the Magistrates Court.

These are the concerns that SARC has.

Some of them are founded in attention to good principle and the rule of law; others are founded in the provisions of the charter that may or may not be in accordance with good principle and the rule of law, but they all need to be addressed.

The opposition has particular concerns about the bill. I have already described our concerns about victims being cut out from consultation and the fact that a judge may well be locked into an indicated sentence despite further information that might become available during a sentence hearing. There is going to be enormous pressure on judges to give indications of non-custodial sentences in order to clear case backlogs and reduce workloads, and that is echoed by the fact that, as the council itself made clear, one of the motivations for this reference was the government’s desire to address problems of delay and heavy workloads.

It is legitimate to some extent to provide a reduction in sentence for those who plead guilty, particularly when it is accompanied by indications of remorse and/or attempts at rehabilitation. However, the last thing we want is a government that goes even softer on crime than it already is simply for the purpose of trying to clear some of the massive backlog of cases that the government has allowed to build up in our court system. It should be working to make our court system operate more efficiently and to ensure that the state has an adequate number of judges rather than opening up the way to even more lenient sentences in order to try to remove some of the backlog.

In practice it is going to be difficult for courts to specify what the discount is purely for the plea of guilty compared with discounts for remorse, rehabilitation or other factors requiring a judge to determine. Requiring but-for sentences is going to add to sentencing complexity and open up potential grounds for appeal.

There is also a risk of forum shopping in terms of defendants being able to force the reconstitution of a court by virtue of asking for a sentence indication and then pleading not guilty. The government has also not explained why it has included the Children’s Court in the bill before the house when the Sentencing Advisory Council specifically decided not to address the issue of the Children’s Court in its report.

Victim representatives that I have consulted are very concerned about departures from what was in the consultation process and the Sentencing Advisory Council report in terms of what is in the bill. Those concerns are understandable.

The opposition’s position is that we are not going to oppose this bill in the Assembly, but the position we take on this bill in the Council is going to be very much determined by the future course of events and in particular what response we receive from the government and the Attorney-General, both in this debate and in the response to SARC, to the many concerns that we have raised.

This seems to be yet another example of a bill that has been rushed into Parliament by an Attorney-General more intent on big-picture items and on grand statements than on trying to do something about the backlog in crime, rather than by an Attorney-General who has carefully considered the issues, come up with a well-structured bill, balanced the many competing considerations and ensured the bill genuinely promotes justice rather than being simply soft on crime in order to cut down on the backlog in the court system.