Creating a sentencing guidelines council

Creating a sentencing guidelines council

Friday, 2 February 2018

We recently made a submission to the Sentencing Advisory Council (SAC), in response to an issues paper about the creation of a Sentencing Guidelines Council. The state government announced in May 2017 that it intends to create the council to engage with the community and provide guidance to the court about specific offences. We support the establishment of a properly constituted and truly consultative council to increase public awareness of, and confidence in the sentencing process.

Guiding purposes

We support the proposed purposes of the Sentencing Guidelines Council to promote a consistent approach to sentencing, and to promote public confidence in the criminal justice system. We know that increased education and awareness about the system leads to greater confidence, while research also shows that public dissatisfaction about sentencing is tied to a lack of community understanding about the process. Helping the community to understand why certain sentences are imposed, and improving the openness and transparency of decision making, will benefit all involved in the criminal justice system.

Judicial discretion

Our practice experience is that judicial discretion in sentencing is central to the administration of justice and to just outcomes for all involved in the criminal justice system. As the largest criminal defence practice in the state we know that retaining the independence of the judiciary while establishing the sentencing guidelines council is vital to ensuring fairness for our clients and maintaining the separation of powers. We recommend that courts be bound to ‘follow’ a sentencing guideline, but that judicial officers be given the discretion to depart from the guideline, when it is 'in the interests of justice'. This should ensure greater consistency in sentencing, while allowing individual circumstances to be considered.

Composition of the council

We agree with SAC’s recommendation that judicial members fill seven places on the council, with representatives from all court levels, while community members fill the remaining six places. We believe it is vital for those community representatives to be selected through an open, fair and transparent process, and that they represent a balanced range of community views. They should also reflect the experiences of vulnerable, and over-represented groups within the criminal justice system, including women and Aboriginal and Torres Strait Islander people. The government should consider appointing an Aboriginal Elder or Respected Person as a member of the council given the significantly higher rates of imprisonment for Aboriginal and Torres Strait Islander people in Victoria.

How the development of sentencing guidelines should work

We believe that the Council should be given the power to develop sentencing guidelines as it sees fit, or at the request of the Attorney-General. But, to maintain the independence of the Council, it should not be required to follow up a request from the Attorney-General. The guidelines should be developed through a rigorous and thorough public consultation process that considers the views of the government, courts, legal service providers, police, and other advocacy and policy groups, as well as members of the public. Guidelines should not be developed without this genuine consultation process. Once finalised there should be a delay between publication and commencement to allow all those involved in the criminal justice system to familiarise themselves with the guideline.

Court of Appeal guideline judgment

We believe it is important for the Court of Appeal to retain its power to issue guideline judgments. This power would act as a complement to the work of the Sentencing Guidelines Council, and represents an extension of the Court’s traditional role and powers. The Court of Appeal can nimbly and quickly respond to an urgent issue through the creation of a new guideline judgment, while the Council will be bound to carry out a lengthy process of consultation and development.

More information

Read our Other justice and law reform activities.