Transcript — Child homicide - the Council releases its final report
Kirsten MacGregor:
Hello, and welcome to this edition of Sentencing Matters. A podcast from the Queensland Sentencing Advisory Council. I'm Kirsten MacGregor, the Council's Community Engagement Manager.
Today, we're talking about an issue that cuts to the heart of our community, and which has been a central focus for the Council for the past 12 months. Sentencing for child homicide offences. In October, 2017, the Attorney-General and Minister for Justice, Yvette D'Ath, asked the Council to review sentencing outcomes for where a child has died. As she said at the time, the terms of reference were in response to growing community concern about whether current sentences were adequate. 12 months later, after an enormous amount of community consultation and research, the Council has now released its final report, including 8 recommendations for reform.
So let's hear from the Council Chair, the retired judge, John Robertson. John, welcome.
John Robertson:
Thank you, Kirsten.
Kirsten MacGregor:
Now, this has been an incredibly complex terms of reference. Can you give a sense of the particular challenges of this review?
John Robertson:
Well, firstly, the Council undertook major research involving a data set covering all sentences for child homicide from 2005-2017, so a 12-year period. To coordinate and analyse that data was in itself a gigantic task, which resulted in us publishing some months ago our research paper, which has contributed to the debate since then. Also, this particular type of offending involving the unlawful killing of a child stirs up, understandably, a lot of emotion and concern in the community. And, in going through these cases in such detail, our research team and the Council have been through the whole gamut of those emotions, trying to objectively assess an enormous amount of data and to engage the community in a formal way and an informal way to gauge community concerns and community views about the topic.
Kirsten MacGregor:
But, as you say, we do all have an emotional response to these cases. To what degree does emotion have to be removed from the equation when you conduct a review like this?
John Robertson:
Well, it's a good question. And speaking as a former judge, people should understand that judges are humans and feel emotions, and I have no doubt every judge who has to sentence a person for the unlawful killing of a child goes through a gamut of emotions. But the difficulty is that when a judge comes to sentence, he or she has to sentence in accordance with the law. And that does involve an objective approach to sentencing and balancing up a whole lot of complex factors, and Justice Kirby, who's a former High Court Judge, and a frequent commentator in the media, once said in a case, "Putting emotion to one side is the best way that the justice system has devised for avoiding both the appearance and actuality of that extraneous considerations have ended the sentencing process." That's a legal way of saying that sometimes if a judge allows himself or herself to become emotional in the sentencing process, parties may feel that the judge is biased. They may feel that the judge is unsympathetic, and that can affect public confidence in the courts.
Kirsten MacGregor:
Is it a question of balance, though, because the community sentiment seems to be that, in fact, emotion is not being taken into account at all.
John Robertson:
Yes. It's interesting, because our engagement with the community through the summits and the focus groups, which is referred to in some detail in the report, and research on this very topic informs us that when people in the community are given information about how complex the process is and what factors have to be taken into account, and how diverse the factual circumstances in these particular cases of child homicide are, most people understand why the approach has got to be objective to achieve fairness. And, ultimately, that's the aim, is to achieve a fair outcome, or to use what the legislation says "a just sentence."
Kirsten MacGregor:
I guess at the heart of that particular sentiment is this notion that courts aren't meeting community expectations. But, community expectations aren't, in fact, a formal consideration for sentencing, are they?
John Robertson:
They're not, but it's been stated many times both in the High Court and in the Queensland Court of Appeal that the community must understand that when judges are sentencing, they are acutely aware that if they impose a sentence that's manifestly excessive or manifestly inadequate or weakly merciful, as was described once in a case, that is likely to undermine public confidence in the courts. And in reality, one of the governing principles in the Penalties and Sentencing Act actually engages the court in what is referred to as denunciation, so the sentence must denounce the behaviour and be adequate enough to - as it says in the legislation - to make it clear that the community, acting through the court, denounce the sort of conduct in which the offender was involved. So, in that sense, community concerns, community expectations fold in to the proper legal approach to sentencing.
Kirsten MacGregor:
Can we talk a bit about manslaughter cases? And I guess the key difference between manslaughter and murder is the lack of intent. But what particular challenges do manslaughter cases present for sentencing?
John Robertson:
Well, it's been said many times before we commenced our project, that of all the offences that you can think of, all the offences in the criminal code, this is one that is most diverse and complex, both in relation to the circumstances of the offender and the circumstances of the offending. That's been stated in Courts of Appeal, in the High Court, and Courts of Appeal in other states on many occasions. And it's demonstrated quite well in the two cases that I refer to in my preface to the report. That is, there's one case where the offender was a male, and a trusted male in a position of trust who effectively tortured a baby over some months leading up to the child's death. And then the other one that's referred to is the man who drove to the shops with his 9-month old baby in the car, went into the shops, got distracted, and was away for a couple of hours and in that time, she died of dehydration.
Now both have unlawfully killed a child, but I don't think any fair-minded person would say they both deserved the same sentence. So I think those two cases, which are actual cases, demonstrate in a fairly simple, straight-forward way why this is such a complex offence to deal with by way of sentence.
Kirsten MacGregor:
Okay, so let's take a closer look at the final report into child homicide sentencing. Let's look at some of these key findings. The Council's found that sentencing for child manslaughter, in particular, does not adequately reflect the defencelessness and the vulnerability of child victims. How did the Council reach that finding?
John Robertson:
By a number of methods. Firstly, quantitative analysis of the data. When we came to analyse the cases for that 12-year dataset, as published in our research paper, the average sentence for offenders who caused the unlawful death by manslaughter of an adult was 8.3 years, and the average for a child was 6.8. That could be explained by factors such as some of the examples I gave before tended to lower the average. But when we allowed for those factors, the median sentences are about the same both for killing by violence and killing by criminal negligence. And that surprised us, and we came to the view that that didn't recognise, particularly in the case of very young children, because our research shows that children under 4 are the most vulnerable and, of course, completely defenceless. So we came to the view that, in reality, along with our consultation with the community that the sentences were not reflecting that particular factor - the defencelessness and vulnerability of a small child.
Kirsten MacGregor:
So you're recommending a new aggravating factor. Can you explain, I guess firstly, what an aggravating factor is and how this might work?
John Robertson:
Yes, well, our hope is that it finds its way into the key section in the Penalties and Sentences Act - Section 9. There's a recent example where Parliament legislated to state that the fact that an offence is a domestic violence offence is an aggravating feature. For those that are interested, it's Section 9, Subsection 10A. And the way in which the courts have responded to that, particularly the Court of Appeal, which is the highest court in the state, indicates that it's had an effect in raising sentences. So an aggravating factor, very simply put, is a factor that the court must take into account, and it makes the offence more serious.
Kirsten MacGregor:
So, at the moment, the age of the victim is not taken into account?
John Robertson:
No, there are general provisions in there, which include the age and circumstances of the victim. But we thought in the context of this particular reference, focusing on child homicide, that we felt something more was needed to recognise this particular class of offences, which are so serious and disturbing. And that's very similar to the approach taken by Parliament in relation to domestic violence offences.
Kirsten MacGregor:
Okay. So we're talking a statutory aggravating factor, rather than a general one?
John Robertson:
Yes.
Kirsten MacGregor:
Okay. And how would that drive up head sentences?
John Robertson:
Well, again, if I could use the analogy of the domestic violence offences, in 2016, a new offence was introduced into the Criminal Code, shortly described as choking, suffocating, or strangling in a domestic setting. The maximum penalty was set at 7 years. That's the same penalty, same maximum penalty for assaults occasioning bodily harm. And courts, of course, up until that time had been dealing with assaults occasioning bodily harm in a domestic setting, which involved choking and strangulation. And the courts after this new offence came in, the District Court, were setting sentences in the 18-month to 3-year bracket, depending on the individual circumstances of the offender. But the Court of Appeal by reference to Subsection 10A, and by reference to the fact that it was a new offence, said, "No, it's more serious." And those comparable sentences that you've been relying on to discern a range, for assault occasioning bodily harm in a domestic setting are not useful. This is a new offence, there's a new aggravating factor, and recently there were two Court of Appeal decisions which upheld sentences imposed in the District Court of 4 years. So, it had a direct effect in driving sentences up.
Kirsten MacGregor:
There have been calls for mandatory sentencing in child manslaughter cases. Why did the Council not go down this path?
John Robertson:
Well, Queensland has flirted with mandatory sentencing in the past. In 1986, the Drugs Misuse Act was amended to provide that all those convicted, whether a trial or a plead guilty of trafficking in Schedule 1 drugs would receive life imprisonment. And within 12 months, the prisons were bulging with traffickers who were trafficking to feed their own habit at a quite low level. They weren't getting the Mr Biggs. So, all that had to be reversed, and all those people had to be re-sentenced.
Mandatory sentencing does not make any distinction between individual circumstances, and it can lead to what lawyers call "serious individual injustice." So let's go back to those two examples before. The father, or step-father, who tortures an infant - a very young child, a baby - leading to the child's death. He's convicted of manslaughter. The woman who goes outside, this is an actual case, who went outside to have a cigarette, leaving her baby in the bath, and the baby drowned. Or the man that went into the shops, leaving his child. And both of those, in those latter cases, they were deeply remorseful from the start. They cooperated with the police. They pleaded guilty at an early stage. If there was a mandatory sentencing regime, even relating only to minimum mandatory parole eligibility dates, those three cases would be subject to the same sentence. And I don't think any fair-minded person looking at those simple examples based on real cases would say that's a just outcome.
Kirsten MacGregor:
And this is particularly so in manslaughter, because there's that huge range of behaviour covered by the charge.
John Robertson:
Yeah. And it would be very difficult to grade manslaughter, to structure the offence. And the other problem is that always, when you have mandatory sentencing involving the death of a person, care has to be taken that you don't give the impression that one life is more valuable than another. So, we obviously looked at that. We looked at mandatory sentencing. But we didn't think that was the answer, basically for those reasons.
Kirsten MacGregor:
Let's have a look at some of the other recommendations in your final report. The Council wants sentencing remarks released in a more timely manner. What's behind that recommendation?
John Robertson:
We thought a very simple mechanism of having the judges sentencing remarks made available, hopefully, on the day, if that's possible, so that both the families and the media can read what the judge has actually said and understand the process of his or her reasoning leading to the sentence. There's a very good recent example. Justice Davis sentenced a man on Friday in a case that attracted a lot of media interest. He, through the Supreme Court Library or Court Services published his sentencing remarks, and his remarks were actually televised, and it has an enormous impact, because it enables the media to fully comprehend, because they're subject to deadlines and 24-hour news cycles. So it enables them to read what the judge has said after he's passed sentence. And I think it improves communication, both and importantly to the victims' families, but also to the media, who have such a huge influence on public perception of the criminal justice system.
Kirsten MacGregor:
Well, yes. You can't complain about being taken out of context if you provide the context.
John Robertson:
Exactly. So, it's a simple mechanism, and it's a matter, of course, for each individual judge.
Kirsten MacGregor:
The Council has also recommended that the court consider referring to child victims by name in court. I think most people would be surprised to hear that's not the case now. But can you speak further to that recommendation?
John Robertson:
Yes. Again, it is hard for people in the community to understand that a court is a court of law. And in my practice as a judge, of course I didn't have this huge responsibility of sentencing in these extremely difficult and highly-emotive cases, but I did have the job of sentencing where deaths had occurred as a result of dangerous driving causing death when there was alcohol. And similar considerations arise. I would always, not always but on most occasions, speak to the victims' families before I pass sentence. And what we think is that by using the child's name, and this was a very strong feedback we got from the families and from the community consultation, is a simple way of personalising it.
But again, what we've... we haven't been proscriptive. Our recommendation is that in consultation with the heads of jurisdiction, and that would be effectively the Chief Justice, consideration be given to looking at some very interesting work that's been done by the Judicial College of Victoria. It's a process of educating the courts. And judges - many judges - undertake constant professional re-education. Some of the things that were happening when I first became a judge in 1994, no judge would regard as fair and appropriate now. But they were back in 1994. So, it's a process of changing as society changes and expectations change. So, we thought that recommendation might be of tremendous assistance in, again, communicating with families and helping them to understand, as the judge undoubtedly has, their views and the effect on them has been taken into account.
Kirsten MacGregor:
In fact, there are quite a few recommendations that go to improving the way families are kept in the loop during these cases. And I would encourage you to have a close look at the final report. There are some very interesting points made in those recommendations about what more can be done in space to support families through that process.
I note, though, that you've also provided some general advice to the Attorney-General. What's the difference between advice and recommendations?
John Robertson:
Well, recommendations relate directly to the terms of reference. And under our statutory remit, which is set out in Part 12 of the Penalties and Sentences Act. Part of our job is to respond to terms of reference. And that's what we've done in this case. So, we thought that in relation to some areas that we thought were relevant and were possibly impacting on sentencing for child homicide cases, that these were outside the terms of reference. And we didn't have the resources or the time to examine it. So, we've given advice to the Attorney that these matters need looking at.
So, effectively, that's the difference, the recommendation relates to a specific term of reference, and advice relates to something that's come up in our opinion that is probably impacting on this issue but has much wider implications.
Kirsten MacGregor:
So you advise a close look at the Serious Violent Offender Scheme. Can you explain how this works and why you considered it?
John Robertson:
Yes. This was enacted in 1997, and effectively means that if a person is convicted of what's called a "schedule offence", this is a reference to Schedule 1 and the Penalties and Sentences Act, which sets out a number of offences, which include manslaughter, but mainly violent offences, but also trafficking in dangerous drugs, serious sexual offending. If a person is sentenced to 10 years or more, they must serve 80% of that sentence before being eligible for parole. So the court has no discretion.
Between 5 and 10 years, a court has a discretion in relation to one of those offences to make what's called a "serious violent offence declaration". Now that's governed by principles that have been developed by the Court of Appeal over many, many years. But, and just to use an example again from my own experience, the courts didn't have any advance notice back in 1997 that this was going to happen. At least, I didn't. Maybe the Chief Judge did. And I did a case just before this legislation commenced. A trial, a horrible trial. And I sentenced this fellow to 14 years imprisonment. Now a month later, 14 years imprisonment under the old regime, he was eligible for parole after serving half - 7 years. A month later, to achieve the same outcome, I would have had to give him 22 years.
Kirsten MacGregor:
Ah. So the 80%.
John Robertson:
The 80%. So it was 14 years, 80% of that's 11.2. So, it immediately, it completely changed how we approached it. And that's Parliament's complete right. But we think, and we argue the point, but we do not suggest that we've researched this fully because we haven't had the resources, and it's not been part of the terms of reference, but our opinion is that in relation to these particular class of offences - child homicide offences - the SVO scheme may be putting unexpected and unintended downward pressure on head sentences.
Kirsten MacGregor:
This is a really interesting illustration, though, of the ripple effect of any changes to the criminal code or the Penalties and Sentences Act. Because even those small tweaks can have unintended consequences. I'm sure when they were introduced, no one thought they would drive down sentences.
John Robertson:
Yes. Quite so. And that's why in developing recommendations, which may or may not affect policy decisions, we've taken an evidence-based approach. We've consulted widely with a whole range of stakeholders. And I think the very makeup of the Council, which is, again, governed by the statute, shows a diverse range of views. So we have police officers, prosecutors, we have representatives from victims associations. We have an aboriginal Torres Strait Islander representative. But it's our research that has really informed that conclusion.
Kirsten MacGregor:
What, then, do you say to someone who thinks this report hasn't gone far enough? That child-killing is a heinous act and a person should be locked up for life. What do you say to them?
John Robertson:
Well, I would say "Gird your loins and read the report." Even just read the executive summary. And particularly have regard to the chapter dealing with actual cases, where we set out a summary of the facts. And look at how the focus groups reacted to scenarios, which we gave to them. These scenarios were based on actual cases. The names were changed, of course. And look at those circumstances. Look at the different circumstances of the offender and the offence. And then ask yourself, "Can I honestly, as a fair-minded person, say that all of these people should be locked up for life?" Or do I accept that it's much more nuanced, it's much more complex than that? And to achieve a just sentence, no there should be judicial discretion.
Kirsten MacGregor:
John, thank you.
John Robertson:
Thanks, Kirsten.
Kirsten MacGregor:
That's John Robertson, the Chair of the Queensland Sentencing Advisory Council. You can find a copy of that final report and our earlier research report on our website. That's sentencingcouncil.qld.gov.au. I'm Kirsten MacGregor. Thanks for listening.