New Criminal Legislation 2003

“BE AFRAID, BE VERY AFRAID”
A paper by Andrew Haesler
Public Defender
March 2003

In late 2002 the New South Wales Parliament Select Committee on the Increase in Prison Population recommended that prison sentences of six months or less be abolished. It has been estimated by the Bureau of Crime Statistics that such a measure would reduce the New South Wales prison population by about 10% and save between $33 million and $47 million per year in the recurrent costs of housing prisoners. A significant proportion of those who would be saved a gaol term would be Aboriginal and Torres Strait Islanders (20%) and women (10%).

Most of the women who received short terms were in gaol for theft. Men on the other hand were more likely to get short gaol sentences for assault or driving and traffic offences.

At about the same time as the release of the Report the government announced further changes to sentencing laws. The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill . The new laws were designed, so it was said by the Attorney in his second reading speech, to promote consistency and transparency in sentencing and public understanding of the sentencing process, by preserving judicial discretion.

What was not said, was that the new laws, which commenced on 1 February 2003 will significantly increase the amount of time offenders will spend in gaol.

No explanation or apology was made for this, rather, it was simply assumed that our community has a legitimate expectation that sentences are too light and that we must pay the price of more prisoners by cutting funds to schools hospitals and the like. No explanation was given as to why it was said that the previous sentencing regimes did not meet the community’s legitimate expectations or had not been appropriate to the gravity of the offences.

No mention was made of the cost, both to the community in dollar terms or to individual prisoners or their families. The Opposition in what has become a typical reaction, simply said the new provisions were not “tough” enough.

The change continues a practice all too familiar to those who have observed our criminal justice system over the last decade. The practice of change has been described by David Brown (Professor of Law, University of New South Wales) as “the uncivil politics of law and order”.

According to Professor Brown the changes are characterised as involving:
· Short term measures hastily formulated around particular cases.
· An increased preparedness in the popular media to denigrate lawyers and the judiciary.
· Attempts by governments and politicians to circumvent well established principles and procedures and to politicise the tribunals.
- The marginalisation of more considered work of parliamentary committees and law reform commissions and the fuelling of public expectations with a demand for instant legislative solutions to complex social problems.

Professor Brown sees the creation of a vicious cycle in which the solutions to the inevitable failure of the measures become ever more extravagant and ill considered measures themselves. (See David Brown, The Politics of Law & Order, in Law Society Journal, October 2002.)

I adopt David Brown’s thesis here. What I hope to do in this brief talk is to analyse some of the more recent changes and hopefully provide some arguments which might when presenting the defence case in court, help that court to moderate some of the more obviously oppressive and draconian aspects of the legislation.

If there is ever to be an effective prevention strategy for the problem a serious crime in our community we must put our resources into such things as diversion schemes, drug treatment programmes and the like, not attempt to increase penalties and prisoners. At $182.59 per day to keep a prisoner in maximum security, frankly, the money could be much better spent. I am heartened by support for this view the well publicised comments following the recent forum organised by Young Lawyers.

But back to the new changes. To give you some idea of the enormity of the task before us I will simply list the changes to criminal law introduced in 2002.

In New South Wales:

1. Bail Amendment (Repeat Offenders) Act 2002 No 34
2. Crimes Legislation Amendment (Penalty Notice Offences) Act 2002 No 46
3. Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 2002 No 13
4. Police Powers (Drug Detection Dogs) Act 2002 No 115 &
5. Firearms Amendment (Public Safety) Act 2002 No 37
6. Justice Legislation Amendment (Non-associations and Place Restriction) Act 2001 No 100.
7. Police Powers (Internally Concealed Drugs) Act 2001 No 31
8. Crimes Amendment (Police and Other Law Enforcement Officers) Act 2002 No 45
9. Crimes Amendment (Bushfires) Act 2002 No 24
10. Crimes (Forensic Procedures) Amendment Act 2002 No 35.
11. Summary Offences Amendment (Places of Detention) Act 2002
12. Crimes (Administration of Sentences) Amendment Act 2002 No 36
13. Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. This Act includes changes involving:
i. Purposes of sentencing
ii. Aggravating, mitigating and other factors in sentencing
iii. Setting non-parole period and balance of term of sentence
iv. Standard non-parole periods
v. NSW Sentencing Council
vi. Review of the proposed Act
vii Effect of failure to comply with Principal Act
14. Law Enforcement (Powers and Responsibilities) Act 2002
15. Crimes Legislation Amendment Act 2002 which includes amendments relating to:
(i) Review of bail undertakings
(ii) Amendment to Search Warrants Act 1985
(iii) Self defence
(iv) Consecutive sentences
(v) Amendment of Mental Health Act 1990
(vi) Amendment of the Mental Health (Criminal Procedure) Act 1990
16. Terrorism (Police Powers) Act 2002
17. Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001- commended 5 December 2002.
18. Crimes Amendment (Criminal Justice Interventions) Act 2002
19. Crimes Amendment (School Protection) Act 2002
20. Crimes Legislation Amendment (Periodic And Home Detention) Act 2002

For an explanation of this legislation see the papers put out by the both College of Law and Criminal Law Review Division by Mark Marian, Crown Prosecutor (College of Law CLE Papers 02/67). Various papers have been presented to recent CLE Seminars on individual changes; for example Bail (Geraldine Beattie-College of Law CLE Papers 02/67), Minimum Sentences (Chrissa Loukas 2003 Bar News) and Police Powers (see my paper on the Public Defender Web site)

The Commonwealth government has not been as “productive” as New South Wales, due in part to the obstruction of the Senate. In particular the, to date unsuccessful, attempt to introduce anti terrorism measures. Nevertheless, there have been a number of significant changes to Commonwealth Criminal Legislation. The most important is the introduction of the Criminal Code. (See M Goode Constructing Criminal Law Reform and the Model Criminal Code 26 Crim L J 152 and I Leader-Elliot The Criminal Code- A Guide for Practitioners 26 Crim L J 28 for explanations of these important provisions.)

Of more direct impact however was the surreptitious repeal of s.16G of the Commonwealth Crimes Act. Without fanfare it brought about a significant change to sentencing policy. It snuck through as part of the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other measures) Act 2002.

My principle focus today is those changes which affect sentencing and a persons liberty.

Let us begin our journey into the heart of darkness

Bail:
As original drafted the Bail Act provided either for a right to bail or a presumption in favour of it except for a small and specific set of offences. The noble sentiment that prior to conviction a person had a right to liberty and a presumption of innocence are now behind us. The number and range of offences where there is no presumption in favour of bail or where the presumption is against bail has been significantly increased. In particular s9B(3) says there is no presumption in favour of bail if there has been a previous conviction for an indictable offence. Again no apologies are made. More people will spend time in prison on remand.

What is important to remember however is that despite the presumptions or their absence, bail is still available. The changes in fact increase the s 32 factors to be considered, particularly in relation to indigenous Australians. As Geraldine Beattie notes in her paper on bail:
“The real onus is practitioners to use s32 effectively.”

You can’t be lazy about bail applications, you can’t presume. You will need evidence of background and community ties (s32(1)(a)(I) and (ia)). That evidence must be cogent. Although the civil standard applies for most bail procedures (s60) don’t simply presume that bar table submissions will suffice. Have Reports, letters and witnesses available in case they’re needed. If you want referral to rehabilitation, and no MERIT scheme, operates from your court have confirmation that rehabilitation and detox places are available. You will need to have material submissions ready on the question of your clients “special needs” such as youth, mental illness or Aboriginality (s32(1)(b)(v)). You must be in a position to counter arguments by the DPP and Police, against bail based on prior record and number and nature of prior convictions (s32(1)(b) (vi)).

Remember it’s jungle out there. Be prepared.

Periodic Detention:
The Crimes Legislation Amendment (Periodic And Home Detention) Act 2002 snuck through most commentators guard. A new s 65A has been added to the Crimes (Sentencing Procedure) Act 1999. If a person has at any time served more than six months imprisonment for a prior offence at any time or any place he or she cannot get periodic detention!

Standard Minimum terms:
According to a study by the NSW Judicial Commission sentencing guidelines in armed robbery matters have been a success, as they have, “reduced systematic excessive leniency and inconsistency in sentencing practice” (The Impact of R v Henry, Judicial Commission: Sentencing Trends No 26, February 2003). While I take issue with the assumption that pre Henry leniency was “excessive” it is clear from the study that guidelines have seen significant increases in number of offenders subject to full time imprisonment and in the length of their sentences, particularly. Non parole periods for armed robbery have increased by an average of six months.

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 now provides for standard non parole periods for a number of select and generally, but not exclusively, serious offences. See Table attached. Not all of theses offences need be dealt with on Indictment. The standard minimum applies only if they are. The section along with the new s44(3) applies to all offences committed on or after the 1 February 2003

The standard non parole period represents “an offence in the middle range of objective seriousness” (s54A). What does this mean?

In particular, is the middle range assessed by reference to some or all of the aggravating circumstances noted in s21A(2)?

If circumstances of aggravation are taken into account in fixing the middle of the range can they then be taken into account again when it comes to increasing the sentence beyond the standard?

What is middle range criminality? It cannot and demonstrably does not, simply mean the mid point on the JIRS statistics, either mean or median. Section 21A (see below) notes that in determining an appropriate penalty the court is to take into account mitigating and aggravating factor and any other relevant circumstances. If the maximum is reserved for the worst type of aggravated offence (Veen v The Queen No2 (1988) 164 CLR 456 and Whyte (2002) 55 NSWLR 252 at [152]) then to reach an objectively determined middle it would seem one must take into account any aggravating circumstance that has already put the offence in the middle range.

Recently the CCA rejected the argument that subjective factors needed to be factored in before a worst case conclusion could be reached. The objective assessment must be done first; only then are subjective matters to be considered to determine if it is possible to bring the sentence down. See Valera [2002] NSWCCA 50. [This two stage process appears contrary to the clear views of a majority of High Court judges. (See AB v The Queen (1999 198 CLR 111 per McHugh J and Wong v The Queen (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ.)]

The notion of a sentencing range is often used by appellate courts. Although well known if not often defined. Judges must “intuit” the: “The range of sentences appropriate for the particular offence (see Justice McHugh in Everett v The Queen (1994) 181 CLR 295 at 306).

More recently, the NSW CCA has taken range to mean anything a from a section 10 bond to the maximum penalty available (see Moon (2000) 117 A Crim R 497). In one extreme case the Court basically calculated the range by reference to the maximum only (see Markarian [2003] NSWCCCA 8 now subject to an application for special leave to appeal the High Court).

In Ibbs v The Queen (1987) 163 CLR 447 the High Court put the question as:
“Where does this offence lie on the spectrum of objective seriousness?”
That calculation is usually made taking into account all the objective features of the case. Adjustments are then made for subjective features. This flows from the well recognised principle that the sentence must be proportionate to the objective gravity of the offence. (See Veen No 2 and Whyte)

If the offence falls within the Table the court must start by fixing the standard minimum sentence (s54A(1)). The court must then by reference to s21A only (s54A(2)), then assess where the offence and the offender rests in comparison to a middle range matter and adjust accordingly.

If it must do so on the basis that a middle range matter does not have any of the aggravating features in s21A(2) then the increase could be significant.

It would seem inimicable to basic notions of fairness that the court could not and should not count a factor twice. To separate out and allow discrete amounts for different “discounts” has been described as artificial and illogical (see Barr J in “X” [2003] NSWCCA 56 at [24] citing Gallagher (1991) 23 NSWLR 220 and Wong). The same reasoning would apply to any attempt to separate discrete “aggravating” factors.

The question of whether NSW is to adopt a tiered or instinctive or intuitive approach to sentencing has yet to be fully resolved. For the moment the instinctive model is the law but this is subject to the important qualification that legislative changes, such as this one, can require mathematical interventions. For example, in Whyte, the discount for a guilty plea was held to be valid. (See also the article Sentencing Methodology in Sentencing Trends No 25 December 2002 put out by the NSW Judicial Commission).

For the moment it would appear the following approach to the standard minimums has support in the Authorities.
1. The court may use a staged approach to assist in reaching an appropriate sentence. This approach is in fact mandated by the legislation (S54A). It may be desirable in the interests of transparency and openness (per Kirby J in Wong)
2. Such a sequential process of reasoning is far from uncommon (particularly in Commonwealth matters, see Bourchas [2002] NSWCCA 373 at [120] and Dursim [2000] 111 A Crim R 460).
3. That approach however should not be strictly mathematical. (see Gallagher, McHugh J in AB and “X” at [50]). Any sentence however calculated must, when the final result is determined, yield to the production of a sentence that reflects the criminality involved in the offence (see Power v The Queen (1974) 131 CLR 623 at 628).
4. As the standard minimum non parole period represents an offence in the middle range of objective seriousness, variation from that starting point must follow if in fact the offence is not, by reference to it’s objective gravity, in the middle of the range (see Veen No 2 and Whyte).
5. In order for the sentence to be proportionate, an assessment of objective gravity must consider some if not all of the aggravating factors in s21A(2). It is not strictly double counting if those factors also bring the sentence up above the standard minimum, or because they are less than that calling for the middle of the range sentence, bring it below it.
6. Subjective features in s21A(3) must operate to reduce the standard minimum non parole period or that calculated after aggravating features are taken into account.
7. Common law factors (s21A(1)(c)) and other rules of law (s21A(4)) are not excluded in these calculations
8. The non parole period, being the minimum period the offender must spend in custody (s44(1), must reflect the criminality involved in the offence (see McDonald CCA NSW, 12 Oct. 1998, unreported and Power at 628).
9. The court must then consider whether there is anything about the case that warrants a non parole period longer than the statutory 1/3 provided for in s 44(2). (See below). Any calculation of sentence and any finding of “special circumstances” need not be unduly restricted Simpson ((2001) 53 NSWLR 702).!
10. Overall, it is expected that the court must then, as part of an intuitive process “synthesis all the relevant factors in the circumstances of the case” (AG Second Reading Speech) . In the end, the synthesised or intuitive sentence and non parole period must still reflect both the objective and subjective features of the case (see Bugmy v The Queen (1990) 169 CLR 525 at 531.

You wouldn’t be a judge for quids! We must do what we can to stop Judges tending to say: “It’s all too much, I’ll go to the standard minimum and aggravate up mitigate down and end up giving the standard non parole period. After all it is a standard “minimum”. I’ll just add 1/3 to get the total sentence”.

We must continue to encourage courts to retain the appropriate proportion between an offender and the offence (see Spigelman CJ in Whyte at [152] and Veen No2).

The effect however, as we have seen with sentencing guidelines, will be a significant increase in the length of sentences imposed for those offenders the “standard minimum” category. If there is to be a proper proportion between sentences imposed for Table matters and those of similar criminality but which are not on the list, those later sentences must rise across the board.

The existence of a standard minimum does not prevent in an appropriate case, a non custodial sentence or less than full time imprisonment (s54A(c)). However due proportion principles and parity questions may do so. The CCA particularly in its guideline judgements, has stressed the need for consistency in sentencing. Offences of like criminality committed by offenders with similar features should attract within an appropriate range, similar sentences.

It is interesting that the CCA in setting guideline sentences adopted a different approach than the new provisions. In cases such as Henry (1999) 46 NSWLR 346, Whyte and Ponfield [1999] NSWCCA 435 the Court set out a series of typical features, both objective and subjective, as the basis for its guidance as to the range of head sentences sought appropriate.

Special Circumstances:
The optimists amongst us have presumed that, although worded differently, the new section (which applies only to offences committed after February 1 2003) merely reverts to the regime that operated under the Sentencing Act 1989 (see Howie & Johnson, Criminal Practice and Procedure NSW at 98,701). The pessimists (see Chrissa Loukas’s article in Bar News), fear that we now have a third regime imposed upon us. A regime that, in effect, operates to ensure that the only person asking for extended parole and “special circumstances” will be prosecutors. For the moment I’m with the optimists.

Despite the slightly different wording between the old pre 1999 - s5(3) and the new s44(2), the new provision comes in a context of a clear policy direction that sentencing under the new provisions are to remain intuitive and not part of a staged process. The only change, it is said, is that a “bottom up” approach (previously described as “quite artificial” by the Attorney and the Chief Justice) must be adopted. It would appear that it is intended that we will revert to the pre 1999 view of special circumstances. That is: that in the assessment of overall sentence, a longer parole period can either increase the total sentence or reduce the non parole period (see Hampton (1998) 44 NSWLR 729 & GDR (1994) 35 NSWLR 376).

In addition, it has recently been held that the assessment of whether there are special circumstances need not be unduly restricted (see Simpson).

Repeal of Section 16 G Crimes Act 1914 (Commonwealth):
Section s 16G of the Crimes Act 1914 was designed to ensure that a court imposing federal sentences which were to be served in a prison of a State or Territory where sentences were not subject to remissions, had to take that fact into account in determining the length of the sentence and adjust the sentence accordingly. A rule of thumb developed that Commonwealth sentences should be reduced by 1/3 of that which would otherwise be appropriate (see Paull (1990) 49 A Crim R 142).

The rigidity of the initial formulation in Paull was moderated in favour of the DPP in El Karhani (1990) 51 A Crim R 123. There it was held, no precise formulae was to be applied to satisfy s16G. A stage was later reached where the DPP successfully argued that a failure to give a 1/3 adjustment was not an error. The 1/3 reduction was held non either to be “invariable” or “inevitable (see Budiman (1998) 102 A Crim R 411 at 415). Nevertheless, courts were required to and did make due allowance for the requirements of the section a failure to take the section into account at all was an error (see O’Connor [2002] NSWCCA 156).

The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures) Act 2002 Comm. contained a little gem. In schedule 3 clause 1 Other Measures, appears “ Crimes Act 1914 section 16G Repeal the section”.

It was explained to Parliament that the section was no longer necessary as remissions had been abolished of remissions in most states and territories. Nothing else was said. There are no transitional provisions. The repeal applies to all Commonwealth sentences delivered after the 16 January 2003 including those delivered even though a guilty plea was entered before 16 January an after appeal (but see Shofield [2003] NSWCCA 3 where the CCA on a Crown appeal allowed the 16G reduction despite its repeal).

Does this mean all Commonwealth sentences must go up by 1/3? I think and hope not. I have successfully argued (DPP v Chew; McGuire ADCJ 27 February 2003) that:
1. The abolition cannot have been intended to have that impact.
2. It was only required of a court that they make an adjustment.
3. In the light of the now established tariffs for such offences to “mathematically” increase them in the absence of legislative direction would be an error.
4. Rather, the court must sentence as if the section did not exist by reference to the objective facts and matters to be taken into account in by reference to s16A.
5. To do otherwise would be to engage in the frowned upon mechanism of engaging in mathematically calculated sentences, when by the removal of the section,
such a requirement was no longer necessary.
6. Section 16G does not require there be a reduction in sentence below that which was other wise thought adequate and appropriate.
7. There is no evidence that the existing range of sentences are other than appropriate to met the objective seriousness of the offence .
8. There is thus, no sensible reason to give a Commonwealth offender a longer sentence than the minimum required by the circumstances of the offence.

That being said, I sense that some Courts are itching to say that, where a tariff had developed for Commonwealth sentences, some upward adjustment of that tariff (of about 1/3) is necessary to take account of the repeal.

I am not sure my line will hold.

Search Warrants Act:
New police powers relating to the Search Warrants Act commence on 1 May 2003. They allow for police to detain persons arrested at the scene of an execution of a warrant.

Police can detain people at the scene of an execution of search warrant for up to four hours (or longer, up to a further 8 hours, there is an application made to extend this detention period). After the search detention period, the provisions of Part 10A of the Crimes Act 1900 apply.

Terrorism; Sniffer Dogs; more powers for Corrections Officers And Police to stop and search; Non-association and place restriction orders:
They’re all there. I simply don’t have the time (or stomach) to take you through them. And we haven’t got to the most recent round of election promises.

You can take comfort from what was said last week by the Police Minister Mr Costa (SMH 7 March 2003 p 6):
“if you’ve done nothing wrong , you have nothing to fear”


Andrew Haesler
Public Defender
Carl Shannon Chambers
28 March 2003

Table---Standard non-parole periods

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation,

(b) the offence involved the actual or threatened use of violence,

(c) the offence involved the actual or threatened use of a weapon,

(d) the offender has a record of previous convictions,

(e) the offence was committed in company,

(f) the offence involved gratuitous cruelty,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i) the offence was committed without regard for public safety,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,

(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,

(k) a plea of guilty by the offender (as provided by section 22),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.