Transcript — Measuring public opinion on sentencing
Dan Rogers:
Hello and welcome to this edition of Sentencing Matters, a podcast from the Queensland Sentencing Advisory Council.
Voiceover (music): Sentencing matters - a podcast that informs, engages and advises on sentencing issues in Queensland.
I'm Dan Rogers, a member of the Queensland Sentencing Advisory Council. Joining me is Her Excellency Professor the Honourable Kate Warner. Kate is the Governor of Tasmania, Emeritus Professor of Law at the University of Tasmania and the former Director of the Tasmanian Law Reform Institute. She is internationally recognised as an expert on sentencing in Australia. Welcome Kate.
Kate Warner:
Thank you Dan.
Dan Rogers:
Kate you've had a really long and eminent career as an academic. Can you tell me a little bit please about your career and some of the highlights for you?
Kate Warner:
Well I think I've been interested in sentencing law in particular for a long time and that started many years ago when I was a judge's associate, because sentencing law wasn't anything we'd heard about in law school. I don't know if that's your experience, but certainly it was never mentioned and then of course I got into the courts and I realised how much work there was, how many pleas of guilty there were and also, of course sentencing following trials. And as associates we had to do quite a bit of research for the judge and we had to write up each case, the sentencing remarks and they kept this sentencing book database, kind of thing. And so I became interested in it from then and I did a masters in the area by research. And then later on when I had a teaching role I taught criminal law and then later evidence and criminology, but I introduced sentencing as a unit. So I've always been interested in it and I've enjoyed researching it, it's always fascinated me.
Dan Rogers:
It is fascinating. If you think about it, sentencing is a pretty supreme example of the state through a government institution, mainly the court, exercising its power over an individual who's broken the law. And of course it occupies a really big space in our public debate, but there's a lot of misunderstandings about what the actual process is, what considerations are relevant, why we sentence people. Has that been a motivating factor for you as part of your research to sort of try and break down some of those myths?
Kate Warner:
It has been and I did a project for the Law Reform Institute of Tasmania on sentencing and I had a section in there on public opinion and that's when I began to think about it. And about that time Chief Justice Gleeson of the High Court (he was at the time) made a comment about if politicians and policy makers really want to know about sentencing, why don't they ask jurors? And I thought well why hasn't anybody done this before? It seems like a good idea. So that's when the public opinion research started. Before that I'd written a text book on sentencing and I was really also interested in the development of the law, the common law of sentencing. But it was this public opinion project that kind of grew and blossomed.
Dan Rogers:
And it has become really famous your jurors study and it is such a great rebuttal to the attacks that are made on the Court and the allegation that judges are soft, they're out of touch. And jurors of course are just the perfect vehicle, because they are representatives of the community performing the function as they did in actually convicting a person then sitting in the judge's shoes.
Kate Warner:
Yes.
Dan Rogers:
Can you tell me a bit about how that research was undertaken? It was a big project in Tasmania and then in Victoria.
Kate Warner:
Yes and now nationally for sex and violence. Yes so we've used the same basic idea for all of the studies and the basic idea was to use jurors and use jurors after they'd found somebody guilty of an offence. So what we did was ask them if they would indicate in a form individually what the sentence should be in the case. So they've heard all of the facts of the case. In Victoria they hadn't heard the sentencing submissions, in Tasmania they had, because like Queensland they hear them straight away. So quite a lot of them had heard the sentencing submissions as well. So we asked them in a form to say what they thought the sentence should be, but we also asked demographic questions so we could see how representative they were. But also we asked them general questions about sentencing as well as the specific question. So a question like do you think sentences for violent offences are too lenient or too severe and a Likert scale there. And the same for sex offences, drug offences and property offences. When we did the pilot we just asked one general question, but they didn't like answering it as a general question, because they wanted to know what kind of offence. So we divided it up.
Dan Rogers:
Into offence categories.
Kate Warner:
Into offence categories like that, yes. And then we asked them other questions, too. Questions about confidence in Courts and did they think judges were out of touch and should public opinion be taken into account? Those kinds of questions that you see in surveys so we could compare them with top of the head media polls, but also representative surveys, members of the public. So that was stage one, so that's before the sentence is imposed by the Court. So they fill in stage one survey and then in stage two we sent them the sentencing remarks together with a little booklet about sentencing and then another survey. So after they've read the sentencing remarks and hopefully the booklet, we ask them “how appropriate do you think the sentence is?” We also, on the top of the form, reminded them what sentence they'd suggested.
Dan Rogers:
Initially?
Kate Warner:
Yes and told them which offender, if there were multiple offenders, they had filled in the form for. And so “how appropriate was the sentence?” is the opening one and then further questions. So we've asked them other questions in some surveys about the purposes of punishment, about aggravating and mitigating factors. Jury role and that's sometimes been in stage one as well and then repeated those general questions, those confidence and punitive-ness items we called them. Then we interviewed, so stage three in all of them. Stage three we interviewed – so we did 50 in Tasmania and 50 in Victoria – interviewing those that were willing to be interviewed – we selected 50 of those who were willing to do that.
Dan Rogers:
And can you give me a sense please of the general themes that came out of the research or the overall types of findings?
Kate Warner:
So first of all we've got the lenience kind of findings in the specific case. So we looked, we compared what the juror said with the judge's sentence. And we found that in Tasmania 52% were more lenient than the judge, 52% of the juror sentences were more lenient than the judge's sentence. In Victoria it was 62%, but remembering that they didn't know about any prior convictions in those cases unless prior convictions had been admissible which is pretty rare. So we also looked in the Victorian cases just at first offenders, so that it wasn't going to bias the results and we found there it was 58% were more lenient.
Dan Rogers:
So the community was still more lenient?
Kate Warner:
They were still more lenient, yes, even looking at first offenders. And nationally it's working out about the same and that's just for sex and violence offences. So we also then, at stage two, asked them whether or not the sentence was appropriate – so this is still on the lenience theme. And they said in Tasmania, 90% said it was appropriate, evenly split between very appropriate and fairly appropriate. Around 80% in Victoria said it was appropriate, more than 50% said very appropriate. So at stage two most of them were comfortable with the sentence. Then we wondered if there were any differences between types of offences and we found that there were significant differences between types of offences. So they were less likely to say, it was less likely to be more lenient than the judge for sex offences and for violence in Tasmania. But sex offences definitely and then when we split sex offences, we found that it was child sexual assault that they were most worried about. So for child sexual assault the jurors were more severe than the judge, but that was the only category. So that made sex offences look as though they were evenly split, but when we dug further...
Dan Rogers:
But even including child sex offences when sex offences overall were looked at, there was consistency between the community expectations of a sentence and what the judge imposed?
Kate Warner:
They were evenly split when you put them all together yes.
Dan Rogers:
And then for violence and property I understand the community was quite significantly more lenient.
Kate Warner:
Yes. Violence surprised me a little bit in Victoria.
Dan Rogers:
When the first study was done were you surprised by the findings?
Kate Warner:
We were and we weren't, but we'd heard of You Be The Judge fora where similar findings had been made and also when vignettes had been used too, it showed that judges and jurors weren't so far out. There wasn't such a big mismatch as you'd think when you had general questions. So it was then interesting to look at our general questions and compare that with the specific question and we found that they still said sentences were too lenient for violent offences and sex offences particularly. About right for property offences.
Dan Rogers:
So even though their sentences were less, they still had a perception that the Courts were lenient?
Kate Warner:
Yes so they said that at stage one and in Victoria they didn't significantly change their views. And we thought surely when a person has come up with a sentence that's more lenient than the judge's, you'd think that they'd alter their views. So it seems that those questions are tapping into something different, which is an interesting finding.
Dan Rogers:
It is and I've thought a lot about how your research can assist bodies like the Sentencing Council who have as part of our mandate the education of the community, how we could use your research to try and break down those perceptions about leniency, because it seems a pretty tough task where even when participants are giving a more lenient sentence, they're still maintaining that view that the Courts are soft.
Kate Warner:
Absolutely. In Tasmania we found they did shift quite significantly, but there were still some who stuck to their views and we interviewed them to find out why. Why didn't you change your mind? You came up with a sentence which was more lenient than the judge's, why do you still think sentences are too lenient? And they'd say but my offender wasn't a real criminal or they'd find mitigating factors or reasons to explain why their particular case didn't represent the norm.
Dan Rogers:
And you mentioned You Be The Judge, which is the Victorian project which our Judge For Yourself has been based very much on and I've really enjoyed presenting Judge For Yourself sessions to the community. I did one at a Rotary Club and the hands went high in the air when I asked whether the Courts were too lenient. But by the end of the exercise I found in this particular case, which was a dangerous driving causing death case, that there was greater leniency among the members of the audience than what the judge had imposed. And then I tell them about your research and you can just see the sense of relief that okay well we're not a soft group, we're actually consistent with the findings that have come out of your research. But do you have any views about other ways that the community can be educated about how the Courts work and that the system by and large is getting it right, it seems, from your research?
Kate Warner:
Well I think these workshops are a really good idea. The trouble is it's difficult to get to a lot of people. I think that it would be a good idea if all jurors got sentencing remarks, so they had the opportunity to learn more about. And again I know that there aren't many jury trials, but still a lot of people have an opportunity during their life to sit on a jury and I think that would be a good way of following up and informing them. And certainly our jurors have been really pleased to get the sentencing remarks and to have some kind of closure.
Dan Rogers:
I think that's a good idea, because jurors in my experience as a practising criminal lawyer, they take their role very seriously and they're giving up their time and to then be thanked and asked to leave at the point of passing a verdict I think many of them would relish the opportunity to read the final chapter.
Kate Warner:
I guess they can stay.
Dan Rogers:
They can but generally they don't. Generally they leave.
Kate Warner:
And they're invited to, but they don't yes. Some judges do invite them to stay and I think that again it is a good idea, but I think it shows more respect to them to actually engage them and give them the sentencing remarks and invite them to stay if possible. Because they do talk about it, they're not allowed to talk about their deliberations, but of course they're allowed to talk about...
Dan Rogers:
The sentence.
Kate Warner:
Yes, yes and after the case they can talk about the evidence that was given and the facts. They just can't talk about their deliberations.
Dan Rogers:
Yeah that's right. And what about the Courts, the Courts obviously have a difficult task of trying to get the community involved in order to have the community understand a bit more about how the process works, because the community are only getting these snippets in the media about reported cases. Do you see a role for the Courts in, I guess, making judgements more available or inviting the community to have a greater involvement in observing sentences?
Kate Warner:
I think so and I think Chief Justice Warren, just before she retired from the Victorian Supreme Court, suggested that it would be a good idea if judges did a very small accessible summary of the sentencing remarks. I think that's particularly important in Victoria when their sentencing remarks are quite long. But I think that would be a really good idea and maybe could be something the associates could do and the judge could check, so it wouldn't be too onerous. But I think that would be a good idea. Of course it needs to be put up on the Court's website and whether people would read them that's another question. But certainly people involved in the case who knew about the case, witnesses, people who had some connection between the victim or the parties may well look at the remarks. And I think the more information we can get out there. Again whether that would change general attitudes I'm not sure, but it will have some effect. We found a little bit of a shift in Victoria, so those jurors who'd been on a sex offence trial were less likely to say sentence for sex offences were too soft. So it shifted some of them, but not as many as we’d kind of hoped. Yes but it is a way.
Dan Rogers:
That’s interesting. And the media is sometimes blamed for the sensationalism around sentencing, but to be fair to them, they really can only report a limited amount of information consistent with the busy-ness of readers who don't have time to digest all the circumstances of a case. But your idea of perhaps a short summary that could be hyperlinked to news articles, it might encourage those who are interested to go a little deeper and see...
Kate Warner:
And a lot of people are reading their newspapers online now, so that would make it quite easy really just to do it that way, so I think that would be certainly well worth doing. I know in a lot of cases perhaps the media want to sell papers and make it a sensationalist story. It's always “offender walks free”, “killer walks free”, that kind of – but not all newspapers do that.
Dan Rogers:
Yeah and that tough on crime mentality is an issue we get from the media, but also when sentencing becomes a political issue, what impact does that have on sentence outcomes and perhaps unfair sentencing policies or practises?
Kate Warner:
Yes I think that's where sentencing advisory councils come into it, because they can do research which can then be relied upon by the opposition or people who want to counter these tough on crime policies. Because so often it's claimed that deterrence is effective when we know it's often not. So these one punch laws a lot of claims are made about how effective they would be in reducing crime, whereas if you have a sentencing advisory council, can actually be somebody that sits in between the policy makers and yeah.
Dan Rogers:
No you're right, the best laws are evidence based policies and mandatory sentencing is a great example that is superficially attractive for politicians wanting to drive a law and order campaign.
Kate Warner:
Yeah any tough on crime is, it's an easy thing to just up the penalty isn't it? Very easy to up the penalty.
Dan Rogers:
That's right, but it's easy also to ignore the cost to the community of the increased prison numbers, the severe impact that has in terms of unfair outcomes, particularly on the young people who get caught up in mandatory sentencing regimes. And you're right, bodies like the council have a really important role to try and...
Kate Warner:
Counter that, hold that back.
Dan Rogers:
...exactly hold that back and encourage politicians to look at what actually works instead of what might be superficial and popular in the lead up to an election.
Kate Warner:
Yeah you're right, but I think they can also involve the public as well, which is good, so through their research they can consult the public. And so they're doing that, they're not just saying “oh we're elitist, it doesn't matter what the public think”, because it does matter what the public think. We need to - maybe it shows we need to explain things better or maybe we can move in some ways too, to accommodate public views.
Dan Rogers:
I agree with you and before we finish I want to turn back if I can to your current role. Tell me a little bit about being the Governor of Tasmania?
Kate Warner:
Well I feel very privileged to have the role and very much enjoying it and it gives me an opportunity to learn a lot about different things, meet lots of people. But I've also had the chance to - you know there are a few issues that I feel quite passionate about. One of them is gender equality, so I get a chance to talk about that quite a lot and also education, which in Tasmania particularly is important where we have not great educational outcomes compared with the rest of the country. We've got the lowest Year 12 completion rates in the whole of the country and our kids don't always do as well. I mean that can often be explained in terms of lower SES background, but even so the Year 12 completion rates can't be explained like that. So we really need to make sure that our students are better engaged at school and that they have better support. So we need some cultural change there, so I've really enjoyed getting involved with schools and education as well as various other things.
Dan Rogers:
That's excellent and Kate, I can't thank you enough for taking the time to speak with me to discuss some of your insights around sentencing. I hope you enjoyed this edition of Sentencing Matters. For more information on sentencing issues in Queensland head to our website which is sentencingcouncil.qld.gov.au. Thank you for listening and thank you again Kate.