Reports and Papers
References
Annual Reports
Monographs
Papers
Information Packages
References
- Report Release: Penalties relating to sexual assault offences in NSW
The NSW Sentencing Council has released its first report into penalties relating to sexual assault offences in NSW. The report examines whether the penalties currently attaching to sexual offences in New South Wales are appropriate, in accordance with the following terms of reference:
- Whether or not there are any anomalies or gaps in the current framework of sexual offences and their respective penalties;
- If so, advise how any perceived anomaly or gap might be addressed;
- Advise on the use and operation of statutory maximum penalties and standard minimum sentences when sentences are imposed for sexual offences and whether or not statutory maximum penalties and standard minimum sentences are set at appropriate levels;
- Advise whether or not “good character” as a mitigating factor has an impact on sentences and sentence length and if so whether there needs to be a legislative response to the operation of this factor; and
- Advise on whether it is appropriate that the “special circumstance” of sex offenders serving their sentences in protective custody may form the basis of reduced sentences.
Volume 1 contains the discussion identified above, while Volume 2 contains a comprehensive statistical analysis of individual sexual offences, and includes some relevant caselaw.
The Council will report on the second part of the report, examining alternative sentence regimes incorporating community protection, and possible responses to address repeat offending committed by serious sexual offenders, by the end of the year.
> Download Penalties Relating to Sexual Assault Offences in New South Wales, Volume 1 (PDF, 1.8MB)
> Download Penalties Relating to Sexual Assault Offences in New South Wales, Volume 2: Statistics (PDF, 439KB)
> Press release: Major Government Crackdown on Sex Offences (PDF, 37KB)
> Question without notice: Sexual Assault Penalty Reform (28 October 2008) (PDF, 73KB)
- Government Response to the Review of Periodic Detention in NSW
The Attorney General has released a consultation paper in response to the Sentencing Council's recommendations regarding the abolition of periodic detention and the establishment of a new sentencing order, the Intensive Corrections Order.
A copy of the Attorney General's press release, Question Without Notice, consultation paper and model are available for download below.
Public comments on the proposal close Wednesday 12 November 2008. All submissions should be marked to the attention of:
Intensive Corrections Order Consultation
Office of the Attorney General and Minister for Justice
Email: office@hatzistergos.minister.nsw.gov.au (Please include ICO in the subject line)
Postal address: GPO Box 5341, Sydney NSW 2001
- Report Release: Review of Periodic Detention
In June 2007, the Attorney General asked the NSW Sentencing Council to review of the current periodic detention scheme in NSW. Specifically, the Council was requested to evaluate the advantages and disadvantages of periodic detention when compared with other sentencing options, whether the scheme should be modified or replaced with an alternative sentencing option, and whether the scheme was compatible with the direction outlined in the State Plan, Priority R2: Reducing re-offending.
The Council sought submissions from relevant persons and organisations, consulted with key agencies, including community agencies who have supervised periodic detainees performing their community service obligations, and met with Department of Corrective Services staff and periodic detainees. The Council also reviewed literature on periodic detention or comparable orders in other jurisdictions, both domestic and international.
The report identifies a number of issues of concern with the current scheme, including:
- eligibility restrictions, such as the exclusion of offenders who have previously served 6-months or more in full-time custody, and the limited availability of periodic detention for offenders in rural areas;
- the lack of rehabilitation programs for offenders serving sentences of periodic detention; and
- current statutory provisions which do not permit courts to order supervision as a condition of parole to periodic detainees
A majority of the Council considered these and other issues to be of sufficient concern to support the replacement of periodic detention with an alternative sentencing option. This alternative, the “Community Corrections Order” (CCO), would be a new form of intensive community supervision which could include conditions such as a curfew or residential requirement, compulsory participation in rehabilitation or educational programs, and the performance of community work, while retaining the possibility of full-time imprisonment for failures to meet requirements.
> Review of Periodic Detention (PDF, 1.2MB)
- Interim Report: The Effectiveness of Fines as a Sentencing Option: Court-imposed fines and penalty notices
In November 2005, the then Attorney General, the Hon Bob Debus MP, asked the NSW Sentencing Council to consider the effectiveness of fines as a sanction, and the consequences for those who do not pay them. The Council was specifically directed to examine the use of driver license sanctions to enforce fine default, and to explore any possible connection to increased imprisonment rates arising out of sections 25 and 25A of the Road Transport (Driver Licencing) Act 1998.
The report includes an assessment of the fines regime in all Australian jurisdictions, based on a review of national and international literature on fines, and analysis of submissions and statistical data.
Among other things, the Council sought submissions from relevant persons and organisations; undertook visits and consultations with key agencies, community groups and prisons in both city and regional areas; and surveyed judicial officers for their views.
The Council identified issues of concern in current procedures regarding the imposition and collection of fines and penalty notices. These included:
- the lack of more meaningful alternative sanctions for disadvantaged offenders;
- the difficulty of taking into account the capacity of the offender to pay; and
- administrative difficulties in enforcement, such as the inability of magistrates to grant extensions to pay beyond 28 days.
The Interim Report considers that these problems are sufficient to justify further consideration of the topic, and identifies a number of possible options for reform.
The Council would welcome feedback on its Interim Report and suggested options for reform. Comment should be directed by October 1, 2007 to:
The NSW Sentencing Council
Box 6 GPO SYDNEY
NSW 2001
> The Effectiveness of Fines as a Sentencing Option: Court-imposed fines and penalty notices (PDF, 837KB)
- Report: Seeking a Guideline Judgment on Suspended Sentences
In this Report, the Sentencing Council explores whether a guideline judgment could clarify the correct approach that a Court should take when deciding to suspend a sentence. The Report also explores the likelihood of the NSW Court of Criminal Appeal issuing a guideline judgment for suspended sentences on an application by the Attorney General.
A number of concerns regarding the reintroduction of suspended sentences are examined. These include:
- an increase in the use of imprisonment sentences in order to take advantage of the option of a suspended sentence; and
- the large number of Crown appeals against suspended sentences, of which many have been successful.
The Council concludes that there are a number of reasons why the Court of Criminal Appeal may decline to give a guideline judgment, and recommends that an application for a guideline judgment for the use of suspended sentences may be premature.
> Seeking a Guideline Judgment on Suspended Sentences (PDF, 661KB)
- Report: Abolishing Prison Sentences of Six Months or Less
The Attorney General officially launched the Sentencing Council’s report on “Abolishing prison sentences of six months or less” on Wednesday, 17 November.
The Sentencing Council’s report considers a number of problems with prison sentences of six months or less. For example, a major criticism of short prison sentences is their limited rehabilitative value. Indeed, it is often argued that short prison sentences are counter-rehabilitative as they have negative effects on family, housing and employment and may even introduce minor offenders to more hardened offenders. For these reasons, many argue that people who are sentenced to a short term of imprisonment could be better sentenced in the community.
On the other hand, there are concerns about the possibility of abolishing short prison sentences. The main concern is that it would simply lead to sentence creep. That is, offenders who would normally be given a sentence of less than six month might be given a longer sentence. As such, the Sentencing Council recommends that safeguards should be in place before considering abolition any further.
The Council’s primary recommendation is that the NSW Government should consider abolishing short prison sentences but not until:
- Primary alternatives to full-time custody are available uniformly throughout NSW;
- The Western Australian government evaluates the impact of abolition in that state;
- There are settled exceptions to abolition;
- There is a trial of abolition throughout all of NSW for Aboriginal women.
> Abolishing Prison Sentences of Six Months or Less (PDF, 934KB)
- Report: Whether Attempt and Accessorial Offences should be included in the Standard Non-Parole Sentencing Scheme
In February 2004, the Sentencing Council reported to the Attorney General on whether attempt and accessorial offences should be included in the standard non-parole sentencing scheme.
The Council concentrated its attention on the “attempt” and “accessorial” offences corresponding to those offences already contained in the table of standard non-parole periods.
The Council recommended that such attempt and accessorial offences should not be added to the table of standard non-parole periods. The Council’s main reasons for its recommendation are:
- there is no need for any such addition
- the culpability for “attempt” and “accessorial” offences varies hugely, and depends largely on the particular circumstances of the case. Quantifying an appropriate non-parole period for an offence in the “middle range of objective seriousness” would be a near-impossible task
- it would be wise to wait for further judicial consideration of the standard non-parole sentencing scheme before expanding the scheme.
> Whether Attempt and Accessorial Offences Should be Included in the Standard Non-Parole Sentencing Scheme (PDF, 286KB)
- Report: Firearms Offences and the Standard Non-Parole Sentencing Scheme
In November 2003, the Attorney General asked the NSW Sentencing Council to consider firearms offences and the standard non-parole sentencing scheme. The Council reported to the Attorney General on 20 May 2004, and the Attorney General has now authorised the Sentencing Council to publish the report on its website.
> Firearms Offences and the Standard Non-Parole Sentencing Scheme (PDF, 611KB)
- Report: How Best to Promote Consistency in Sentencing in the Local Court
In June 2003, the Attorney General asked the NSW Sentencing Council to consider “how best to promote consistency in sentencing in the Local Court”. The Council reported to the Attorney General on 30 June 2004, and the Attorney General has now authorised the Sentencing Council to publish the report on its website.
Throughout it’s report, the Council considers that the Local Court should promote consistency of approach to sentencing, rather than, for example, uniformity in outcome. This accords with the recent High Court judgment of R v. Markarian [2005] HCA 25 at [27].
> How to Best Promote Consistency in Sentencing in the Local Court (PDF, 694KB)
Annual Reports
- Report on Sentencing Trends and Practices 2006-2007
The NSW Sentencing Council has released its fourth statutory report on sentencing trends and practices, which examines the period September 2006 to August 2007.
During 2006-07 the membership of the Council increased from 10 to 13 members, with the addition of representatives from the Departments of Corrective Services, Juvenile Justice and the Attorney General’s Department.
The Council’s functions were also extended to include the education of the public on sentencing matters. Pursuant to this function, the Council met with Albury City Council; contributed to the drafting of the Sentencing Information Package and commenced a joint project with the NSW Bureau of Crime Statistics and Research to examine public attitudes toward sentencing.
The report provides an update of the projects which the Council has completed in 2006-07, including reports presented to the Attorney General and self-initiated projects. Also presented are updates on current references, including: Effectiveness of Fines as a Sentencing Option (in the context of Occupational Health & Safety and Environmental offences); Review of the Periodic Detention Scheme; Public Attitudes Towards Sentencing; and a Review of Penalties for Sexual Assault Offences.
During 2007-08 the Council intends to monitor several issues of interest, including the sentencing of Aboriginal offenders, and provisional sentencing for young offenders. The Council notes that the Government response to the NSWLRC Report 104: Sentencing: Young Offenders noted that this issue is the subject of consideration by the Council. The manner and extent to which discounts on sentence are given, as well as the incidence of error arising as detected in appeals to the Court of Criminal Appeal, will also be monitored. This is of particular relevance by reason of the trial which is being conducted concerning criminal case conferencing.
- Report on Sentencing Trends and Practices 2005-2006
The NSW Sentencing Council (“the Council”) is now in its third year of operation. This is its third statutory report on sentencing trends and practices, and covers the period July 2005-August 2006.
The Council continued to monitor the feasibility of a guideline judgment on suspended sentences and analysed the impact of appeals to the Court of Criminal Appeal involving suspended sentences.
The report’s analysis of standard non parole scheme offences where there were 10 or more matters to December 2005 found that:
- sentences have generally been more consistent;
- there has been an increase in the non-parole period imposed for some offences; and
- there has been an increase in the percentage of offenders incarcerated for some scheme offences
The report also contains a discussion of significant sentencing issues that have arisen during the year, including:
- the impact of aggravating and mitigating factors in the sentencing exercise (section 21A Crimes (Sentencing Procedure) Act 1999);
- indefinite sentencing; and
- the sentencing of Aboriginal offenders;
- mentally ill and intellectually disabled offenders and limiting terms
Recent reports by the Victorian Sentencing Advisory Council, the Australian Law Reform Commission and the NSW Legislative Council Standing Committee on Law and Justice are also canvassed.
> Report on Sentencing Trends and Practices 2005-2006 (PDF, 282KB)
- Report on Sentencing Trends and Practices 2004-2005
- Report on Sentencing Trends and Practices 2003-2004
Monographs
- Judicial Perceptions of Fines as a sentencing option: A survey of NSW Magistrates
Monograph No 1: August 2007
This survey forms part of a wider evaluation of the Sentencing Council’s review of effectiveness of fines as a sentencing option. A preliminary analysis of a quarter of the responses received was also incorporated into the Council’s interim report on The Effectiveness of Fines as a Sentencing Option: Court-imposed fines and penalty notices.
The judicial survey was designed to examine how court-imposed fines are being imposed. Specifically, the survey aimed to identify the factors taken into consideration when a magistrate is determining firstly, whether a fine ought to be imposed, and secondly, its quantum. The survey also examined judicial perceptions of the advantages and disadvantages of the fine, and its effectiveness as a sentencing option.
Court and registry processes implemented in response to default were also examined. Specifically, the survey explored judicial views of administrative procedures imposed in response to fine default, such as mandatory licence suspension, and of accumulated sanctions in the form of habitual driver declarations.
This study presents the findings of the survey and discusses the issues identified by the survey respondents.
The study found that:
- Magistrates consider a fine to be an integral weapon in the sentencing arsenal. Essentially, fines are seen as a flexible, easy to administer and an appropriate penalty for relatively minor offences.
- Despite this, there was widespread concern at the restricted availability of sentencing options, especially in rural and remote areas, with 84% of respondents stating that more community sentencing options were required;
- Licence suspension issues in particular proved a concern, with almost half of respondents raising it as a concern. Respondents specifically cited the risk that further offences will arise when suspended drivers find it necessary to drive by reason of work or family emergencies. The catastrophic consequences, such as the commission of driving offences unrelated to the fine offence, and the potential escalation towards imprisonment, were commonly noted.
> Judicial Perceptions of Fines as a Sentencing Option: A Survey of NSW Magistrates (PDF, 454KB)
Papers
- The Role of Sentencing Advisory Councils
Prepared and presented by the Hon Alan Abadee RFD QC for the National Judicial College of Australia Conference - Sentencing: Principles, Perspectives and Possibilities, Canberra, February 2006.
> The Role of Sentencing Advisory Councils (PDF, 229KB)
- The NSW Sentencing Council
Prepared by the Hon Alan Abadee RFD QC and presented by the Hon James Wood AO QC for the Victorian Sentencing Advisory Council conference - Sentencing and the Community: Politics, Public Opinion and the Development of Public Opinion, Melbourne, April 2006.
> The NSW Sentencing Council (PDF, 108KB)
Information Packages
- Sentencing Information Package
Jointly produced with the Victim’s Services and the Criminal Law Review Division of the NSW Attorney General's Department, the Sentencing Information Package is a booklet provided to assist victims of crime in understanding the sentencing process. The purposes of sentencing, basic elements of sentencing procedure and the terminology used by a sentencing court is explained in language aimed at the layperson.
To view a PDF document, you will need a copy of Adobe Acrobat on your computer. If you do not have a copy of Adobe Acrobat, you can download a copy for free from the Adobe website.
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