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Australian Law Reform Commission - Reform Journal |
Reform Issue 86 Winter 2005
This article appeared on pages 19 – 23 of the original journal.
The Sentencing Information System: Statistics and sentencing support
By Ivan Potas*
In Shakespeare’s Hamlet, the Prince of Denmark is given an impossible task by the ghost, his father.
He is told to avenge his father’s death by killing his uncle but has to do this without harming his mother. Hamlet’s instructions include the following:
‘But, howsoever thou pursu’st this act,
Taint not thy mind, nor let thy soul contrive
Against thy mother aught: leave her to heaven,
And to those thorns that in her bosom lodge,
To prick and sting her.’1
Seemingly, the Judicial Commission of New South Wales was given a similarly difficult task—that of assisting the courts achieve consistency in sentencing but without interfering with the sentencing discretion of the court. Hamlet ended in a bloodbath, the Judicial Commission’s approach to its task, however, has been pain free. In fact the Commission’s work has been particularly well received to the point where it has become a model to be followed in other Australian states and territories, as well as overseas. Indeed, in his Review of the Criminal Courts of England and Wales, the Right Honourable Lord Justice Auld examined a number of well established or developing sentencing support systems and concluded that the Judicial Commission’s system ‘is probably the world leader in the field’.2 His Lordship proceeded to recommend the early setting up of a system for England and Wales that is almost identical to that which operates in New South Wales.3
The aim of this short article is to describe the Judicial Commission’s sentencing information system (SIS). The SIS is now more commonly referred to as JIRS (Judicial Information Research System) because it now contains a great deal more information than just sentencing data. For the purposes of this article I will refer to it as the SIS because I will focus only on the sentencing components within JIRS.
Background
The establishment of the Judicial Commission of New South Wales preceded the setting up of the sentencing information system or SIS. Indeed, the establishment of the Commission itself was a direct response to the findings and recommendations contained in a report to the Criminology Research Council, published in 1986 by a group of academics led by Dr Tony Vinson. The Vinson Report, as it came to be known, was entitled Accountability and the Legal System: Drug Cases Terminating in the District Court 1980-1982. It had found that a particular District Court judge had consistently imposed what appeared to be very lenient penalties on drug offenders when compared with the sentencing practices of other judges. This raised a concern not simply with regard to the particular judge whose sentences appeared quite out of step with the rest of the judiciary, but with the system as a whole. Were judicial officers sufficiently accountable for their sentencing decisions? Was the system flawed in a way that enabled inconsistencies in sentencing to go unnoticed and unchecked? Could the system be improved without unduly interfering with judicial independence? The report called for, among other things, the development of an adequate court information system, a sentencing council to review sentencing practice, including the development of non-mandatory sentencing guidelines based on the range of current penalties and a vastly improved method of collecting and disseminating statistics.
The government of the day wasted no time. The Judicial Officers Act was assented to on the 18 November 1986 and in somewhat controversial circumstances the Judicial Commission of New South Wales was set up. There remained concern, particularly among members of the judiciary, that the new Commission posed a threat to judicial independence and an amending Bill was introduced and passed on 1 May 1987 to ensure that this was not the case. As the Chief Executive of the Commission, Mr Ernie Schmatt recently explained:
‘the second reading speech was intended to establish beyond doubt the independence of the Commission and the authority of the Commission to manage its own affairs. It established the Commission as a statutory corporation with its staff wholly independent of Public Service control and receiving its own budget from Parliament to which it is required to report annually.’4
Sentencing function of the Judicial Commission
From the outset the legislation did not embrace the idea of a sentencing council that would lay down guidelines of the kind referred to in the Vinson Report. Rather, it placed emphasis on the provision of educational services to the judiciary and this included the monitoring of sentences handed down by the courts. It also acquired a complaints function but further discussion of this is outside the province of this article. Of particular relevance, however, are the terms of s 8 of the Judicial Officers Act, which provides as follows:
‘(1) The Commission may, for the purpose of assisting courts to achieve consistency in imposing sentences:
(a) monitor or assist in monitoring sentences imposed by courts, and
(b) disseminate information and reports on sentences imposed by courts.
(2) Nothing in this section limits any discretion that a court has in determining a sentence.
(3) In this section, ‘sentence’ includes any order or decision of a court consequent on a conviction for an offence or a finding of guilt in respect of an offence.’
Note the reference to the limitation in subsection (2), which makes it plain that the Commission has no power or authority to interfere with the sentencing discretion of the court. The Commission set about meeting the challenges encompassed in s 8 by developing the SIS and it was launched on 9 October 1990 by the then Chief Justice of New South Wales, the Hon Justice Murray Gleeson.
What is the SIS?
The Judicial Commission’s SIS is essentially an electronic repository of case law, legislation and statistical information that is designed by the staff of the Commission to meet the objectives referred to under s 8 of the Judicial Officers Act 1986—principally to assist the courts achieve consistency of approach in sentencing. Judicial officers have access to the system, as do some other criminal justice agencies and legal practitioners, through their use of laptops or other personal computers. The host computer resides at the Commission’s premises. Currently it is an intranet system but there are plans to make it more accessible by making it available on the web. Access is only available by way of a logon and password.
The basic components of the system—such as the sentencing statistics; the NSW Court of Criminal Appeal (CCA) judgments; the sentencing principles and practice component; the case summaries; and the legislation—are linked so that it is a simple matter to navigate between components. For example, the case summaries component consists of specially prepared summaries of NSW CCA cases and it is a simple matter by clicking on an icon to move from a summary of a particular case to the full text of that decision contained in the CCA judgments component. Equally, there are links from legislation to the sentencing statistics, or other case law components. Sentencing principles are also linked to cases and vice versa. As the whole system is based on Internet technologies, finding material is intuitively simple and minimal typing skills are required. Further, there are multiple ways of searching for information; for example, text retrieval, advanced searching, indexes, table of contents and table of case names, are provided.
Sentencing statistics
Perhaps the most unique or distinctive feature of the SIS is the statistical component. Its value lies not simply in its ability to provide sentencing courts with information relating to the range of penalties imposed for a particular type of offence over a particular period of time, but it can finetune the inquiry to take into account variables that are likely to influence the outcome of a sentence. For example, it is one thing to have statistics on all the penalties imposed for a particular offence. It is quite another to be able to qualify the information further by selecting only those types of cases that have common features, such as age group, and prior criminal history, for example.
An illustration on using the statistics
Suppose one wanted to know what kind of penalties have been imposed for offenders whose principal offence was common assault (Crimes Acts 1900 (NSW) s 61). I could have picked any offence, but common assault will suffice. One could begin by looking up the legislation component first and quickly discover that the maximum penalty for this offence is two years’ imprisonment. Then one could select from the list of links set out adjacent to the legislation, the one called ‘Local Court Statistics’. This will transfer the user from the Legislation Component to the Statistics Component of the system. If one wanted to research the sentencing pattern for the same offence in the higher courts one could have selected just as easily the appropriate link to those statistics. Next, by clicking on ‘common assault’, a graph showing the range of penalties imposed for this offence in the Local Courts for the period October 2000 to September 2004 is presented. This graph is illustrated in Figure 1.
There are 30,832 cases represented here, and bonds and fines are the most commonly imposed sanctions for this offence.
But suppose we were only interested in the range of penalties imposed for offenders who pleaded guilty to this offence. Guilty plea is an important variable because it will generally entitle the offender to a substantial discount. We can select this option from a pull down menu in the toolbar of the graph and produce a fresh picture, this time blocking out all not-guilty plea cases. The result is presented in Figure 2 (see over) and note the number of cases has now fallen to 22,857 cases with some variation in the general sentencing pattern.
We could, if we wished, look at the amount of fines commonly imposed but suppose, instead, the magistrate regards the offence as exceptionally serious and is thinking of imposing a term of imprisonment. All he or she has to do is click on the prison bar and select full time imprisonment to see what prison terms were imposed by all magistrates for this offence.
The range of prison sentences for common assault offences where there was a guilty plea is presented in Figure 3 and shows that the mid-point is a term of six months. It also shows that sentences of 12 months are also quite common. Note, however, the statistics do not tell the magistrate what sentence to impose in a particular case. That is a discretionary exercise and must be carried out in accordance with well-established principles. Instead the statistics operate as a sounding board to either confirm or question the sentence the magistrate has in mind to impose.
The very same information may be consulted in order to consider whether an appeal against sentence should be sought. This simple illustration only begins to reveal the power and flexibility of the system and the enormous benefit of the SIS to sentencing practice in New South Wales.
Conclusion
The task of the sentencing judge is to consider where in the range of the conduct covered by the statutory offence the criminal conduct of the offender should fall.5 Every person who subscribes to the SIS has available to him or her the legislation, the case law, and the sentencing ranges that can assist the court make more informed decisions. The statistics are not prescriptive (otherwise they would tend to fetter sentencing discretion) and there is now a body of law that provides guidance on how sentencing statistics should be used and also outlines their limitations.6 It is a case of making the technology the servant of the court rather than the other way around.
Every month thousands of SIS inquiries are made by judicial officers, prosecutors, public defenders, legal aid practitioners and the like. The SIS is truly an integrated and now indispensable part of the criminal justice system of New South Wales. The information that is provided promotes consistency of approach in sentencing and reduces the prospects of error in the exercise of the sentencing discretion. The Judicial Commission’s Sentencing Information System achieves this without interfering with the exercise of the sentencing discretion and so avoids many of the difficulties that now beset guideline systems that have been adopted elsewhere in the world.7
* Ivan Potas is the Director, Research and Sentencing at the Judicial Commission of New South Wales.
Endnotes
1. W Shakespeare, Hamlet, Act 1, Scene V.
2. Lord Justice Auld, Review of the Criminal Courts of England and Wales Report London (2001), 603.
3. Ibid, 605
4. E Schmatt, unpublished paper presented at the Judicial Conduct & Ethics Committee Conference in Dublin, Ireland, 6 May 2000
5. R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [49]
6. See I Potas ‘The Use and Limitations of Sentencing Statistics’ (2004) 31 Sentencing Trends and Issues, Judicial Commission of NSW.
7. See, in particular, Blakely v Washington [2004] USSC 2665; 124 S Ct 2531 (24 June 2004); United States v Booker [2004] USSC 3012; 125 S Ct 738 (12 Jan 2005).
Figure 1: The range of penalties imposed for common assault in the Local Courts.
Figure 2: The range of penalties imposed for common assault in the Local Courts where offenders pleaded guilty
Figure 3: The terms of imprisonment imposed for common assault in the Local Courts where offenders pleaded guilty
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