Should judges have to dispense harsher sentences, in line with public opinion?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
On August 1, 1996, a survey questionnaire seeking public opinion on appropriate sentences for a range of criminal offences was published in the Herald Sun.
The survey was part of an attempt by the Victorian Government to determine community attitudes prior to revising the Victorian Sentencing Act.
The results, when published on September 13, 1996, indicated that the general public appeared to favour harsher penalties for all categories of crime.
The Victorian Government has suggested that sentences should reflect community attitudes more closely. However, critics have dismissed the survey as either irrelevant or faulted.
Background
In the March 30, 1996, election campaign, the Victorian Government stated that it would consult with the community to discover the community's view of the sentencing system in this state.
One part of this community consultation was the distribution of a sentencing survey, published in The Herald Sun, on August 1, 1996. Approximately 40,000 people responded to the survey.
An independent tabulation company analysed a sample of 3083 responses, selected at random from the returned questionnaires. Such a survey sample is said to be larger than that commonly used by pollsters.
The survey response was representative of the metropolitan Melbourne and country Victorian breakdown, however, there was a slight male skew in the number of respondents relative to the Victorian population, a skew toward 50 plus age groups, and under representation in the younger age groups.
The results of the survey appeared to indicate that a majority of respondents would prefer significantly harsher prison terms than are usually imposed within Victoria.
On the question of sexual assault, for example, some 95 per cent of respondents said that a man who raped his estranged wife should be jailed (with 28 per cent indicating that the man should be jailed for up to 25 years). Among the respondents whose opinions were summarised, some one per cent indicated that the offender should receive capital punishment, while the same percentage favoured castration.
In regard to fraud, some 84 per cent said they would send to jail a solicitor who embezzled money from clients' trust funds, with 29 per cent calling for a penalty of up to 10 years.
For murder, 54 per cent nominated life imprisonment, while 13 per cent called for the death penalty.
Those surveyed also seemed to reject acting under the influence of alcohol or other drugs as a mitigating circumstance. 65 per cent of those responses processed indicated that acting under the influence of a drug should led to neither an extension nor a reduction of sentence.
The State Government has indicated it will consider the survey results in conjunction with submissions to the Victorian Community Council Against Violence (which is distributing information papers, addressing focus groups and holding public meetings around the state).
The Victorian Government has also indicated that it will take into account the views of judges and laws when drawing up the new Sentencing Act for Victoria.
the mechanism by which judges and the legal profession will be consulted has not yet been revealed.
The Bill for the new Sentencing Act is expected to go before state parliament late in 1997.
Arguments in favour of a new Sentencing Act requiring judges to give harsher sentences, in accord with public opinion
There are five principal arguments offered in support of a new Victorian Sentencing Act,requiring judges to give harsher sentences, more in tune with public opinion.
The first argument is that law is essentially a reflection of a society's values and so the sentences that are given should substantially reflect what the majority of citizens believe is appropriate.
This view has been put by Greg Craven, reader in law at Melbourne University. `The people are not the servants of the judges. The judges are the servants of the people.
The role of the criminal law is to produce a safe society while preserving the maximum liberty for ordinary citizens to go about their daily lives. Where the balance is to be drawn between safety and liberty is a matter for the people and their elected representatives, not the judges and the lawyers.'
The Herald Sun, in its editorial of September 13, 1996, stated, `Some who regard themselves as experts on crime and punishment, including lawyers, judges or clerics, take the elitist view that the views of ordinary citizens do not count. But in a democracy people's will must prevail.'
An extension of this argument relates directly to popular calls for harsher sentences. It is argued that judges are out of touch with the priorities of the community at large (especially with the perspective of victims of crime) who are seeking more severe punishments for those
who commit crimes.
Mr Don McLean, an old age pensioner, who was beaten and robbed in his own home, has stated, `We're living in a permissive society where people prey on the elderly and each other, and there's bugger all we can do about it. The punishment never fits the crime.'
According to this line of argument, there is a need for the judiciary to respect the attitudes of the community as a whole, and to show that respect in passing harsher sentences.
Secondly it has been argued that although the community appear to want harsher sentences, this desire is not one of unthinking revenge, but is a considered and reasonable response to the problem of crime.
This was the judgement expressed by the Victorian Attorney-General, Mrs Jan Wade.
Mrs Wade claimed, `(The results) show very clearly that Victorians are not the red-necks some people thought they were.
They are very willing to look at the cases in a very responsible way. They don't always want to send offenders to prison, and in cases where prison is not appropriate they look at other ways of dealing with people.'
Thirdly, the representative quality of the survey has been defended. The Herald Sun in its editorial of September 13, stated, `Critics who condemned the survey as likely to attract unrepresentative, conservative views have been proved wrong ... Though there was a slight skew towards the fifty-plus age groups, the survey remains representative of the broad cross section of the population which the Herald Sun serves.'
The claim that a 40,000 reader-response is still limited and that basing the released results on a randomly selected 3083 sample taken from that 40,000 limits the survey still further, have been rejected, as it has been argued that a sample of more than 3000 is at least as large as that taken for most surveys.
Fourthly, it has been claimed that the survey was never intended to be the only way in which community attitudes to sentences would be gauged.
The Victorian Community Council Against Violence has been approached and meetings called by it have been used as another means of gaining an insight into community attitudes towards sentencing.
Twelve further meetings are to be held in metropolitan and country areas in the three months from September 13, 1996.
Mrs Wade has also stated that it was never intended that popular surveys or consultation with community lobby groups would be the sole basis on which the Victorian Government revised the Sentencing Act.
Once community views have been gathered in this manner, they will be taken to judges, magistrates and the legal profession for discussion.
Finally, it has been argued that even the legal profession acknowledges that the Sentencing Act is in need of reform.
It was reported in The Age on September 16, that Supreme Court judges generally welcomed the idea of reviewing sentencing laws which they are claimed to have said need clarifying.
It has further been claimed that it would be desirable to limit judges' discretion when sentencing because, without such limits, sentences may not be properly equitable, but instead will depend on the personality of the judge passing sentence.
For example, the behaviour of one magistrate has been cited, about whom many lawyers were extremely concerned because of what appeared to be the disproportionate length of the sentences he was giving and the number of appeals being taken against his decisions.
One Queens Counsel has been paraphrased criticising markedly different outcomes to cases, depending on the judge involved. This was something he referred to as a `lottery factor'.
The QC is quoted as saying, `That's always struck me as a very unhealthy state of affairs: that you have to say to your client, "I'm sorry we've drawn badly, you're going to have to spend an extra two years in jail because we got the worst judge in court in terms of being a heavy sentencer.'
Arguments against a new Sentencing Act requiring judges to give harsher sentences, in accord with public opinion
One of the main argument against a new Sentencing Act, requiring harsher sentences, does not centre on the likely harshness of the sentences to be recommended.
The principal objection to such a change is that it would reduce the scope for judges to exercise discretion or judgement.
According to this line of argument, passing sentence on a criminal found guilty of an offence requires the capacity to balance a range of factors. This, it is claimed, requires experience, training and skill and thus is best left to the discretion of judges who have acquired the abilities required.
The response of one judge, reported in The Age, reflects this point of view, `I've spent hours in turmoil and torment (deciding sentences) and I'm assessing anything up to a hundred variable factors. To think that you can computerise it or Americanise it and still keep it human is nonsense.
And to find a newspaper survey is conducted under the aegis of the Government as if it had some status, or as if it could direct judges as to what to do, is puerile, but worse, is deceptive as far as the community is concerned.'
Mr Hulls, the Opposition spokesperson on legal matters, has also claimed, `Any cynical attempt by the Attorney-General to impose trial by survey shows that she just doesn't understand the complexity of sentencing.'
The second argument offered against limiting judges' discretion in passing sentences, suggests not only that judges are the most appropriate people to determine sentences; it also claims the general public is ill-equiped to contribute to the debate on sentencing.
According to this line of argument, the general public is likely to lack both the experience and the wide perspective needed to make appropriate recommendations regarding sentencing.
With regard to a lack of relevant experience, one judge has suggested that members of the general community who demanded longer sentences had no idea what it was like to be locked in prison.
With regard to a supposed lack of a wide perspective, it has been argued that members of the general public are likely to place a far greater emphasis on punishment and protecting the public, at the expense of factors such as rehabilitating the criminal or acknowledging mitigating circumstances.
Reverend Ray Cleary, a director of the Melbourne City Mission, has stated, `In the present debate, retributional punishment seems to be the primary goal, while rehabilitation and forgiveness - which don't seem to be popular at this time - goes out the window.'
Reverend Cleary went on to state, `Crime ... is often a symptom of a deep-seated void or personality disorder and frustration.'
Reverend Cleary concluded, `This is not to suggest that criminals should go scot-free, but does suggest an important place for treatment and rehabilitation.'
In addition to this it has been argued that the survey itself was inadequate. According to critics this means that even if it were accepted that it is appropriate to have public opinion influence the Sentencing Act, this survey, it is claimed, is not a proper indication of public opinion.
There have been a number of criticisms of the nature of the survey. First, it has been suggested that because it was printed and distributed through The Herald Sun newspaper then only the demographic or section of the community which typically reads the Herald Sun would have been likely to respond.
(A particular criticism was that if the Victorian Government considered it appropriate to distribute a survey through newspapers, the survey should also have been printed in The Age, so that a larger cross section of the population would have been likely to take part.)
Additionally it has been argued that the published details of the response to the survey, confirm pre-survey fears that it would not give the opinions of a fully representative sample of the community.
The Herald Sun noted that, `Middle-aged people from Melbourne's eastern suburbs were the biggest community group to complete the questionnaire ... The average age of all respondents was 51. Twenty-two percent of all responses came from the inner and outer eastern suburbs.'
Criminology Professor Arie Freiberg has claimed, `It may well reflect the views of one section of the community, but it's just not reflective of the community as a whole ... [The response was] skewed toward older, more conservative people and not worth the paper it's written on.'
There have also been claims that a 40,000 reader-response is still limited and that basing the released results on a randomly selected 3083 sample taken from that 40,000 limits the survey still further.
In addition, the survey has been criticised because of the nature of the questions it posed. Ms Liz Curran, of the Federation of Community Legal Centres, has claimed that the survey presented scenarios of the most extreme and sensational cases.
Underlying many of the above criticisms is the suggestion it is not appropriate to use the Sentencing Act to limit the discretion and therefore the independence of the judiciary.
To those who argue that judges should ultimately be answerable to the people, defenders of their relative independence argue that it is politicians who are answerable in this way.
It is claimed that judges are appointed to their posts for long periods of time so that they can exercise their judgements freely, making unpopular decisions if such decisions appear the most reasonable and appropriate.
The separation of powers, that is, the independence of the judiciary from the elected Government, is claimed to help to protect democracy and ensure that it operates in a balanced and considered manner.
This viewed was argued in The Age in its editorial of September 18, 1996. `Our system of justice relies not just on politicians reflecting the views of the people but on government and people having trust in the judiciary. The democracy we enjoy is the product of a complex web of interdependent relationships involving citizens, elected representatives, law enforcers and an independent judiciary.'
Mr Hulls, the Opposition spokesperson on legal matters, has called on all Victorians to consider the importance of an independent judiciary. He states, `It goes to the heart of the democratic process in this state.'
Further implications
Though it appears that some within the legal profession favour a reform of the Sentencing Act, it is not clear what direction they would like to see this reform take.
There appears to be no support at all within the legal community for the public input gained through the sentencing survey published in the Herald Sun being given any weight.
The survey and its intended use appear to have become part of a larger problem which has seen the judiciary at loggerheads with the current Victorian Government and particularly with the current Victorian Attorney-General, Jan Wade.
Over the period the Kennett Government has been in power there have been protracted disputes over supposed attempts to limit the independence of the Director of Public Prosecutions.
The Kennett Government's disbanding of a compensation tribunal and the consequent displacement of the judges who sat upon it also led to criticism that the Government failed to appreciate the importance of a judiciary which could not be influenced or removed by Government.
Another area of dispute has been the establishment of the Victorian Court of Appeal.
It has been claimed that the Victorian Court of Appeal was established two years ago without prior consultation with the judiciary or the legal profession. The Victorian Supreme Court was apparently in no way a party to the decision and it has been claimed that the Chief Justice was informed only two hours before it was publicly announced.
The supposed animosity between judges and the Government has reached the point where there has been some media speculation as to whether the Government might ultimately reject the judges' most recent pay claim in retaliation for critical comments made by some judges about the Attorney General in a series of articles published in The Age.
On the question of the Sentencing Act it seems at least possible that judges' range of discretion in sentencing will be further limited. It also seems possible that the result will be more frequent and longer prison terms for those convicted of most kinds of offence.
Such a development is particularly interesting at a time when the Victorian Government is in the process of having a number of private prisons in Victoria.
Victoria is about to have the largest number of private prison beds, relative to the total population, of any area in the world.
At a time when the crime rate in Victoria may actually be declining, increasing prison terms may have the incidental consequence of encouraging private enterprise into the prison system by creating greater scope for profit..
Sources
The Age
15/9/96 page 1 news item by Steve Butcher, `Magistrate asks to leave his court'
16/9/96 page 1 news item by Bill Birnbauer, `Judges lash out at Wade'
16/9/96 pages 1 and 2 news item by Bill Birnbauer, `What the judiciary is really thinking'
17/9/96 page 1 news item by Farah Farouque, `Judges put Wade in a spot: Labor'
17/9/96 page 13 analysis by Bill Birnbauer, `Judging the judges'
18/9/96 page 16 editorial, `Disorder in the court'
26/9/96 page 4 news item by Gareth Boreham, `Rap for judiciary over Wade comments'
The Australian
13/9/96 page 5 news item by Rachel Hawes, `Get tough on crime, disputed survey says'
The Herald Sun
2/9/96 page 8 news item by Chris Hornsey, `Crime of neglect'
13/9/96 pages 1 and 4 news item by Matthew Pinkney and Geoff Wilkinson, `Time to get tough'
13/9/96 pages 12, 14, 15 analysis by Geoff Wilkinson, `Your verdict' (followed by a full breakdown of the results of the Victorian Government's sentencing survey, published and distributed through The Herald Sun)
13/9/96 page 18 editorial, `People, crime and punishment'
16/9/96 page 2 news item by Michelle Coffey and Phil Skeggs, `Magistrate in appeals row'
17/9/96 page 19 comment by Greg Craven, `The Custard Dragons'
25/9/96 pages 1 and 2 news item by Matthew Pinkney, `Pay us more'
26/9/96 page 3 news item by Michelle Coffey and Matthew Pinkney, `Magistrates in super pay push'
26/9/96 page 18 editorial, `The best in both worlds'