Transcript — The role of sentencing advisory councils

John Allen, Queensland Sentencing Advisory Council member:

Hello. Welcome to the third 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.

John Allen:

I’m John Allen, a member of the Council.

In this edition I’m talking to Emeritus Professor Arie Freiberg, Chair of both the Victorian and Tasmanian Sentencing Advisory Councils. We will be exploring the role of Sentencing Advisory Councils when it comes to shaping the sentencing agenda. For Queensland, this is a particularly important and contemporary issue with our own council having been established late in 2016.

As a well-respected authority on sentencing councils in Australia, there’s no doubt Professor Freiberg is the best person to give us an insight into why sentencing councils are an important component of criminal justice systems.

Hello, Professor Freiberg. Thanks for joining us.

Emeritus Professor Arie Freiberg, Victorian and Tasmanian Sentencing Advisory Council chair:

It’s good to be here, John.

John Allen:

Let’s start at the top. Sentencing councils are now in place right across the world, including the UK and the USA, as well as in Victoria, New South Wales, Tasmania and South Australia. Why are sentencing councils so critical when it comes to providing guidance, advice and information about sentencing to governments, courts and the public, and why do you think the concept is so successful?

Professor Freiberg:

I think the concept is successful because independent sentencing councils in these jurisdictions are a source of independent advice to governments, to the courts and to the public. It’s that aspect of independence which distinguishes councils from government departments, from the courts and from any other body other than for example, law reform bodies which also provide advice to governments, but without the focus and often the resources of a sentencing council.

The range of functions that are expected of and are carried out by a council are very wide. It’s the advice to government, and advice is provided by a council made up of a wide range of people with different backgrounds, not speaking on behalf of their organisations, but speaking from their own knowledge and experience and, one hopes, fearless in providing that advice, no matter what the political complexion of the government of the day and no matter what the issues are. It’s their ability to conduct research, provide the empirical foundations of policy and to provide that kind of advice which will communicate to the public, which will have involved extensive consultation with stakeholders, the public, with victims, with police, with the courts, and which we’ll be able to weigh up the options and provide them in a measured, informed and credible way.

One of the big dangers in criminal justice policy, John, is that decisions are made on the spur of the moment. There will be a catastrophe, a disaster, some terrible moral panic, something that will grip the imagination of the public, create anxiety, create fear and governments will often be pressured to provide a quick and often not appropriate answer. Too often the answers given will be counterproductive. In fact, criminogenic; that is, create more problems than they solve. They will often be expensive, but what they will do is often look to provide a political response with an eye on the next election.

Councils are not elected, they’re not necessarily worried about the results of the next election, they’re not worried about what Parliament will say. It’s their role to provide independent advice based on evidence, based on good process and based on the best knowledge. That’s what I think sentencing councils can bring. That’s why they are different from government departments. They are different from other advisers who come and go. Because councils, one hopes, are there for the long run, they’re not subject to the vicissitudes of everyday life. The other advantage, John, is they’re only there to give advice. Councils don’t implement policy. It’s for government to take the advice or ignore it. We can only do our best.

The other thing, of course, is the councils are there to provide information to the public about sentencing patterns, practices, whether sanctions work or not. In fact, provide advice on what the public might actually think about what sentencing purposes are and, in fact, when you ask the public in properly-conducted scientific surveys, the answers about what they think about sentencing and what should be done are often quite different than the top-of-the-head responses they may give on talk-back radio or to self-selected public opinion polls done on the basis of “Do you think sentences are too harsh, too soft or just right?” They’re useless. They’re not informative. So I think councils have a very important role and why they’re successful is they can provide that balanced, credible research-based advice to government.

John Allen:

You’ve had a lot of involvement in the operation of sentencing councils in different jurisdictions. What are the key differences between a criminal justice system that has a council in place and one that does not? I would also be interested to know your thoughts about what it means for the community to have a council in place.

Professor Freiberg:

The importance is the information base. What we aim to do as councils is to have an informed policy debate about difficult, emotional and sensitive issues in relation to sentencing. So while we cannot determine the ultimate outcomes, a jurisdiction with a sentencing council is more likely to produce policy outcomes which are fair to the community, which are more likely to be effective. So what that means is, and the Victorian Council has produced something like 60 reports over its 13 years, the Tasmanian Council some seven reports over the last seven years, many of which have been adopted in whole or in part, will mean that the legislation and, therefore, the operation of the justice system, is more likely to produce a safer community because some of those short-term responses that are produced in jurisdictions without councils, that might be produced under great pressure, without that widespread impact - and I’m not saying all jurisdictions don’t have that; they have law reform commissions - it may be that the departmental officers are able to conduct long-term inquiries, take submissions, but you’re more likely to get a thoughtful considered outcome when you’ve got a council who is able to speak independently and fearlessly and who is able to, in fact, to create the evidence base.

So what you find in jurisdictions with councils is that they will develop the databases. So Queensland has developed a sentencing snapshot. So we are able to know here what the sentencing practices are of the courts. Victoria has its Sax stats, so does Tasmania. That is, we’re able to let the public know what the courts are actually doing. Many of the studies also relate to the sentencing practices. So you don’t get the ill-informed discussion that sentences are too low, that sentences are unfair, because a council is able to point to the website and say “Here’s what the average sentences are for murder, rape or burglary. Here is what the higher sentences are; here is what the lower sentences are. Here is what the sentencing practices are”.

Together with the courts, who now post many of the sentencing remarks online, one can say “Before you make up your mind, be aware of what’s actually happening” and through its publications, through its research, through its sentencing monitoring practices, a council can provide the basis upon which the public can properly engage in the debate, whether or not it agrees with what the recommendations are.

John Allen:

Our listeners have, obviously, read the newspaper headlines and seen the news bulletins. I think it’s safe to say most people understand that media coverage about sentencing issues is typically negative and often focuses on our court systems being soft on crime or the belief that legislation needs to be tougher.

As a council, what role do you play in helping the public better understand sentencing and how do you go about doing this?

Professor Freiberg:

Well, as I’ve said, the important thing is the range of publications and activities that councils undertake. So Judge for Yourself, or in Victoria You Be the Judge, and they’ve got one in the UK, presented to individual groups in the community, presented online. What they do, and they are essentially a vignette, that is, a short case study, where the public are invited to participate in the sentencing process, a sort of a mock sentence where they are informed of the aggravating and mitigating circumstances, they can hear both sides for prosecution and defence, they know what the circumstances are of the case, they can weigh up the factors. That kind of community outreach, that kind of information, again, can help the public understand the difficulties and the complexities of the sentencing process.

The research studies, whether they be of major issues such as mandatory sentencing, does prison work, do community correction orders work, what do we know about drug courts, what do we know about various sanctions. All that is published. What do we know what the courts do and why they do it. Those studies that can be undertaken of what the public actually thinks about sentencing, about the purposes of sentencing. These are some of the studies that we’ve done in Victoria. What they can do is provide that information to the public about whether, in fact, the courts are soft on crime or whether the sentences are, in fact, appropriate, whether, in fact, what we’re doing is effective, whether it’s expensive. All of those questions are the work that a council can do. The important thing, John, is that kind of work is open and published and free.

In many jurisdictions you don’t know what the courts are doing. When we set up in Victoria 13 years ago, we didn’t have sentencing statistics. Now they’re public and they’re free. In some jurisdictions you have to register, you have to pay for access to those sentencing databases. In Victoria and Tasmania and Queensland, you go on the website. That information is free, paid for by the public, available to the public and that’s what I think a proper democratic-involved debate should be. So I think helping the public better understand sentencing through the website, through publications.

We work hard in Victoria. As well as the website, we have a Twitter feed, we’re on a number of social media. We go out there, we spread the news in what we do. For example, in Victoria on our Twitter feed, when we pick up stories from other sources, we retweet them, other people retweet ours. We get out to the public, not everybody, but enough people to become involved and get a better understanding of just how hard sentencing is. It’s not easy to be a judge. We need people to understand that. We can put people in their shoes even for a short time.

John Allen:

Sentencing councils have been established in a number of states throughout Australia, which you have mentioned. Is there one particular issue that you would like to see examined by Australian sentencing councils?

Professor Freiberg:

Well, there is. Many of the councils, including Queensland, have a provision in their legislation that councils can provide Courts of Appeal with assistance in developing sentencing guidelines. These are judgments by a Court of Appeal that sets out general principles to be followed by other judges. They’re not proscriptive, but they are different from the  decisions made by the courts in the day-to-day cases which decide whether a sentence is right or wrong or manifestly inadequate or manifestly excessive, but they don’t usually set out broader principles that will guide judges in the future about how to interpret legislation, about what appropriate sentencing ranges may be.

Now, because of the particular approach of the High Court, which is very individualistic, which is, I think, culturally and ideologically opposed to courts setting out broad statements of principles, it’s very much focused on the idea that every case is different, every case is individual, that the sentencing is based on something called an intuitive synthesis, that there are no one right answer. While that’s mostly right, I do believe strongly, and the legislation provides, that courts can hand down guideline judgments which provide these broader statements of principle. They’ve been very reluctant to do so. They were done for a while in New South Wales, both with and without legislation. Victoria, a five-court bench handed down a major judgment in a case called Bolton in 2014 relating to the principles of how to implement a new sentencing order called a community correction order.

I believe that there is a role for judicial sentencing policy in which sentencing councils statutorily have a role in providing information and submissions to a court. To me that is an untapped potential, but it requires Courts of Appeal, and possibly the High Court, to understand that there is a larger role for judges to develop sentencing policy.

I think, John, that the failure to do so in the past, the failure by judges to grasp the nettle and say “We can affect the way sentences will be imposed, not just an individual judgment”, can often pre-empt political intervention if judges keep getting it wrong or they’re heading in the wrong direction. I think that’s an important task that hasn’t been undertaken and I would like to see more of that undertaken by both courts and councils.

John Allen:

Thank you, Professor Freiberg. I’m sure our listeners have a much better understanding about the role that Sentencing Advisory Councils can play in sentencing policy and reform as well as in providing information to the community.

I would also look to acknowledge and extend the Queensland Sentencing Advisory Council’s appreciation for your willingness to provide advice and guidance. It is very much appreciated.

I hope you enjoyed this edition of Sentencing Matters. For more information on sentencing issues in Queensland, head to our website,