6 May 2023

Call for lawyers to be given greater say over sentences in criminal cases

| Claire Fenwicke
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Dr Paterson’s proposal calls for prosecution and defence lawyers to be able to give a judge more information during a person’s sentencing. Photo: Michelle Kroll.

There’s a new push to amend the ACT Crimes (Sentencing) Act 2005 to allow lawyers to make recommendations on sentencing in the Territory’s criminal proceedings as a way to improve our justice system.

Murrumbidgee MLA Dr Marisa Paterson is seeking community input for a proposal to let the prosecution and defence in a criminal case recommend a sentence they feel would be appropriate in the context of each case.

“The provision of a ‘sentencing submission’ is not complicated, and provides an opportunity not currently afforded, that law reform experts and victim advocates suggest may go some way to alleviating the often disempowering criminal justice process – particularly through appeal processes,” she said.

Dr Paterson’s proposal would seek to override a High Court decision from 2014, Barbaro v The Queen, which set a legal precedent to disallow sentence recommendations in criminal proceedings by the prosecution.

While pre-sentence hearings are common practice in ACT courts, Dr Paterson’s proposal paper noted sentencing submissions would give both legal representatives more of a chance to provide extra information if they saw fit, which she felt would contribute to greater transparency and robust representation in court.

“It is proposed in this paper that a ‘sentencing submission’ would go some way [towards] a more balanced process, allowing all parties to provide sentencing advice,” it stated.

“The legislation may also provide judges in the ACT with some context of differing expectations on sentencing and provide more robust reasoning for the sentences that they deliver.

“There is potential that this will have an impact on the number of appeals as a result of greater transparency in sentencing.”

The suggested definition for a sentencing submission is: “In deciding how an offender should be sentenced (if at all), a court may consider a submission made by a party to the proceeding stating the sentence or range of sentences the party considers appropriate for the court to impose.”

Dr Paterson said in light of the recent inquiry into dangerous driving and community expectations regarding sentencing in this space, the time was right for further change.

“Pulling all the evidence together over the past couple of years, I see a great opportunity and a need to try something new,” she said.

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Her proposal has been welcomed by the Australian Federal Police Association as a way for the courts to better meet community expectations when it came to criminal proceedings.

President Alex Caruana said this provided a chance to try something different in this space.

“We’ve seen some sentencing recently that doesn’t meet the community’s expectations; submissions could assist in providing objective and balanced guidance to the judiciary during deliberations,” he said.

“Queensland has introduced sentencing submissions, and it appears that no unintended consequences have arisen.”

He pointed to the number of successful appeals by the Director of Public Prosecution’s office outlined in its 2021/22 report, which showed the office had filed an increased number of Crown appeals against criminal sentences made by the court.

“Extraordinarily, 68 per cent of those appeals in 2021/22 were successful, which indicates systemic failures in the initial sentencing processes,” Mr Caruana said.

Given both the prosecution and defence would be given the chance to provide guidance for a judge’s sentencing decision, Mr Caruana felt this wouldn’t result in harsher sentences or imprisonment without due diligence being done.

“The judiciary will still be able to sentence within the prescribed penalties in the legislation,” he said.

“Dr Paterson’s proposal doesn’t change those available penalties, but it does provide a level of accountability.”

The union has previously been vocal in its push for a full judicial review to ensure penalties available are adequate and line up with the seriousness of a crime, as well as with community expectations.

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An ACT Bar Association spokesperson confirmed they had received a copy of Dr Paterson’s proposal and were giving it consideration.

They clarified the legal parties are currently permitted to make sentencing submissions in criminal matters, but the case referred to by Dr Paterson applied specifically to the DPP.

“What the decision of Barbaro related to was the narrower question of whether it is appropriate for the DPP to make a submission about the appropriate sentencing range in a particular matter,” the spokesperson said.

“The High Court was of the view that this was inappropriate.”

The DPP’s office was also contacted for comment, but declined.

The community can give feedback on Dr Paterson’s proposal by emailing paterson@parliament.act.gov.au. Submissions close on 12 May.

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