Author: Rozenes, M. and J. McCarthy Date: 07/03/1992 Venue: Law Council of Australia, Criminal Law Section, Criminal Law Seminar, Hobart
On 17 July 1990 the provisions of the Crimes Legislation Amendment Act (No. 2) 1989 relating to the sentencing of federal offenders came into operation. This legislation made significant changes to the law relating to the sentencing of federal offenders, and represented the results of a major review of Commonwealth sentencing legislation which had commenced some 12 years earlier with the reference on sentencing law to the Australian Law Reform Commission. Amongst other things, the 1989 Act repealed the Commonwealth Prisoners Act 1987, which until then had been the Commonwealth's main sentencing legislation, and incorporated the Commonwealth's sentencing legislation in the Crimes Act 1914. There can, of course, be no doubt that the Commonwealth has sufficient constitutional power to create its own completely separate criminal justice system, including its own criminal courts. However, in terms of numbers relatively few prosecutions that come before the courts involve breaches of Commonwealth law. Accordingly, for sound reasons of economy and convenience the Commonwealth has always relied on State and Territory courts for the prosecution of almost all breaches of Commonwealth law. For the same reasons, the Commonwealth has not established its own correctional system; rather it relies on State prisons and correctional institutions for persons convicted of Commonwealth offences. Consistent with this heavy reliance on the State and Territory criminal justice systems, the policy that has been generally followed by the Commonwealth, and which is reflected in the Judiciary Act 1903, is to apply State and Territory laws with respect to such matters as procedure and rules of evidence. Until the new sentencing legislation, this policy also involved applying, more or less, State and Territory law in the sentencing of federal offenders. As almost all Commonwealth prosecutions are heard and determined in State or Territory courts exercising federal jurisdiction, there are obvious advantages in a State court applying the law on such matters with which it is familiar. It was thought to be quite impracticable, generally speaking, to require State courts to apply a separate body of Commonwealth law when dealing with a federal offender. Nevertheless, prior to the new legislation Commonwealth sentencing law was in a rather dreadful state. The main reason for that state of affairs was that the Commonwealth was not always content to take the State law as it found it. All too frequently it could not resist the temptation to fiddle with the State law by providing an overlay of Commonwealth law modifying, sometimes quite substantially, the application of that State law to federal offenders. As the State laws upon which the Commonwealth law relied became increasingly diverse and complex during the 1970s and 80s, the "mesh" between the applied State law and the overlay of Commonwealth law was found all too frequently to be deficient. The Commonwealth provisions, rooted as they were in the policies and practices of the 1960s, were simply unable to keep up with the changes being made to State sentencing laws in the 1970s and 80s. Despite some amendments which patched up some of the more glaring deficiencies, a complete overhaul of Commonwealth sentencing legislation was long overdue. Unfortunately, while eagerly awaited, I do not believe that I am being too uncharitable in saying that the new legislation has proved to be something of a disaster. Indeed, from the outset it was recognised by at least those who would have to work with it, both sentencers and practitioners, that it was fundamentally flawed. The main criticism that can be levelled at the new legislation is that it ignores the lessons of the past. Until now it had been accepted that so long as the Commonwealth relied on the State courts for the prosecution of Commonwealth offences, there were practical limits on the extent to which the Commonwealth could make its own provision in such areas as sentencing. Despite this, the new legislation establishes what is essentially a separate regime for the sentencing of federal offenders. Only in a number of the more peripheral areas is reliance on State laws continued. In some places it has been possible to make arrangements for magistrates to be made available to deal almost exclusively with Commonwealth matters. In most places, however, such an arrangement is impracticable. Given that most magistrates and judges will be called upon to deal with a federal offender only very infrequently, it is simply unreasonable to expect them to be familiar with and apply a separate body of law when sentencing a federal offender - a body of law which, in a number of respects, may be quite dissimilar to the relevant State law. Mistakes by sentencers, and those who assist them at sentence, are inevitable. In this regard, it should be appreciated that not all Commonwealth matters are prosecuted by my Office. Particularly at the summary level, prosecutions for Commonwealth offences, perhaps where related State charges have also been laid, may be dealt with without any reference to my Office. Hardly a week goes by without my Office being informed that some court has misapplied the provisions of the new legislation, or simply not applied them at all i.e. sentenced the offender as if he or she was a State offender. The second main criticism that can be levelled at the new legislation is that, having decided to establish a sentencing regime which was separate from that of the States, in framing the legislation the Commonwealth simply chose a number of wrong policy options. I will provide particulars of this criticism later in this paper. And if all this was not enough, the legislation itself has the appearance of being drafted by someone who is more familiar with drafting taxation legislation. The new legislation has been described by various judges as "opaque", "convoluted", "labyrinthine", a "jungle". Lest to be thought that I have been overly critical, the most trenchant criticism of the new legislation has come from the courts. In R v. Paull (1990) 20 NSWLR 427, for example, Hunt J. of the New South Wales Supreme Court concluded his remarks on sentence with the following observation: "It is to be hoped that the federal Parliament will quickly come to realise the difficulties caused by this unnecessarily complicated and opaque legislation and that it will give urgent consideration to its provisions. At the present time, the question of sentence will take longer to deal with in the average trial than the question of guilt itself." Similar sentiments were expressed by the New South Wales and Victorian Courts of Criminal Appeal in the cases of El Karhani (1990) 97 ALR 373 and Carroll (unreported, 2 November 1990). In his remarks on sentence in the case of Choi (unreported, 4 September 1990) Sully J. of the Supreme Court of New South Wales commented: "It is, in my opinion, a disgrace that any sentencing judge should be expected to deal with someone else's personal liberty and with the protection of the public while hobbled by a statutory scheme, many of the provisions of which are internally inconsistent, and the conceptual framework of which is, to speak plainly, a mess." Turning to the actual provisions of the new legislation, it will not be possible to particularise all its faults. Accordingly, what follows is in the nature of an indictment containing representative counts only.
The provision that has attracted perhaps the most criticism is s16A(2). This sub-section sets out 13 matters that the court must take into account in passing sentence to the extent they are relevant and known to the court. The sub-section does not purport to be exhaustive of the factors that may be properly taken into account by a sentencing court. However, in listing such a relatively large number of factors there is a danger the sub-section will be treated as a de facto codification, particularly by less experienced sentencers. There is a real risk that a sentencing court will concentrate on the matters listed and overlook other considerations that may be just as relevant in the circumstances of a particular case. However, the main criticism that has been levelled at the sub-section concerns the inclusion of some factors but not others, and the description of certain of the factors listed. In a number of respects they are either incomplete or just simply banal. As Hunt J. observed in R v. Paull, the matters which a court may properly take into account in determining the sentence to be imposed in a particular case "could hardly be less suitable for codification". The most glaring omission from the list of factors is that of general deterrence. This has traditionally been regarded as one of the main purposes of punishment and, indeed, in some offences general deterrence may override all other factors. The significance of the absence of any reference to general deterrence was considered in El Karhani. In that case the New South Wales Court of Criminal Appeal held that the omission was merely a "legislative slip". Given that the sub-section did not purport to be exhaustive, the Court observed that "it would have been surprising indeed if such a fundamental principle of sentencing, inherited from the ages, had been repealed by the Act." Accordingly, general deterrence remained a matter to be considered by a court when sentencing a person for a federal offence. In fact it is unlikely that this was the result of an inadvertent mistake as general deterrence had been included in early drafts of the Bill. It is not known what prompted what appears to have been a conscious decision to omit it. It may have been influenced by the view expressed by the ALRC in its report on Sentencing (No. 44, at para. 225) that increasing the levels of punishment does not increase the deterrent effect. However, as the Review of Commonwealth Criminal observed in its 5th Interim Report: "... it is clear that there is a strongly held judicial view that general deterrence is one of the fundamental purposes of sentencing and whatever the wisdom of attempting to list the matters that should be taken into account in sentencing, any such list that does not recognise the deterrent effect of punishment is deficient". (para 12.8) Both my Office and the Review of Commonwealth Criminal Law have recommended that, despite the decision in El Karhani, general deterrence should be reinstated by an amendment to the legislation. Without such an amendment there is the potential for the less experienced sentencer to be lead astray. An amendment would also indicate that general deterrence remains an important consideration in the sentencing of federal offenders. Paragraph (a) of the sub-section requires a sentencing court to take into account "the nature and circumstances of the offence". Did those who framed this legislation really think there was a possibility that a court would not have regard to the nature and circumstances of the offence before imposing sentence! Be that as it may, this is nothing more than a broad heading for a large number of matters that can be taken into account in determining the sentence to be imposed. It includes, for example, the maximum penalty, the degree of premeditation or planning, whether a weapon was used, whether the commission of the offence involved a breach of trust, the degree of participation in the offence, the prevalence of the offence, the status of the offender etc etc. With the greatest respect to those who framed this legislation, the inclusion of this particular paragraph is not only insulting to a sentencing court but borders on the useless. Paragraph (d) requires a sentencing court to take into account "the personal circumstances of any victim of the offence". It is less than clear exactly what is encompassed in this particular description. While no doubt it includes the age, sex, status and antecedents of the victim, does it include, for example, the extent to which the conduct of the victim contributed to the commission of the offence? Of course, as the sub-section does not provide an exhaustive list, the conduct of the victim may still be a matter that can be taken into account under the general law where that is relevant. However, this does illustrate the pointlessness of listing some matters and not others, or providing a description which is incomplete. Paragraph (p) requires the court to take into account "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents." On its face this paragraph appeared to represent a major departure from the position at common law, which is that unless the circumstances are exceptional the sentencing court should ignore the effect that any sentence would have on the offender's family or dependents. However, it would appear from the decision of the West Australian Court of Criminal Appeal in Sinclair (unreported, 10 December 1990) that the paragraph is not to be regarded as representing a change from the common law position. In that case the Court of Criminal Appeal relied on the decision of the South Australian Court of Criminal Appeal in Adami (1989) 42 A. Crim. R. 88 where it was held that a provision in substantially similar terms under South Australian law was not intended to represent a change from the position at common law. Finally, paragraph (g) requires the sentencing court to take into account the fact that the offender has pleaded guilty. The effect of this particular paragraph is, presumably, that a court would be entitled to give an offender a discount even though it was not satisfied that the plea demonstrated remorse. However, given the differing views that have been expressed in the cases on this issue, it should have been made clear that this factor may be taken into account even if the plea is not accompanied by remorse. It should also have been provided that the weight to be attached to a plea of guilty should depend on the stage in the proceedings in which the offender pleaded guilty or first indicated an intention to plead guilty.
Prior to the 1989 legislation the Crimes Act 1914 contained a restriction on imprisonment in s17A which was in the form that a court must not impose a sentence of imprisonment "unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case." This provision probably does little more than reflect the position at common law. However, as a result of the 1989 legislation a new s17A(1A) was inserted. This sub-section provides: "Where: (a) a person is convicted of one or more federal offences relating to property, money or both, whose total value does not exceed $2000; and (b) the person has not previously been sentenced to imprisonment for any federal, State or Territory offence; the court convicting the person must not, unless in the opinion of the Court there are exceptional circumstances that warrant it, pass a sentence of imprisonment for that offence or any of those offences." One assumes it was intended that the operation of the new s17(1A) would be confined to what are loosely referred to as "property" offences, that is, offences involving the unlawful acquisition of, or damage to, property such as stealing, obtaining property by false pretences, imposition, etc. However, the sub-section is far too widely expressed in that the words "relating to property, money or both" will necessarily include offences where the seriousness of the offence does not lie in the value of the property or amount of money involved. For example, in the case of bribery, the seriousness of the offence obviously lies in the corruption of an official, and the actual amount involved will be largely irrelevant. In the recent case of R v. Flynn (unreported), which involved the making of counterfeit currency, the County Court of Victoria held that the sub-section applied, and accordingly it was precluded from imposing a sentence of imprisonment. The Court in that case may well have been correct, on the basis that counterfeit currency is clearly property within the definition in s3 of the Crimes Act 1914, and accordingly the offence was one that "related to" property. Further, irrespective of the face value of the counterfeit currency involved, the value of the counterfeit currency for the purposes of the sub-section will merely be the value of the paper on which it is printed. This restriction on imprisonment does not apply if the Court considers that "exceptional circumstances" exist. However, while I believe there can be little doubt that Parliament did not intend the sub-section to apply to the sorts of cases I have described, this cannot be a relevant consideration in determining whether "exceptional circumstances" exist if, nevertheless, the offence is one that can be characterised as involving property or money.
s20A sets out the procedure for taking breach action in respect of a failure to comply with an order made under either s19B or s20, which deal with the conditional release of offenders either without proceeding to conviction or after conviction. Prior to the 1989 legislation, s20A, together with s19B and s20, were some of the relatively few provisions of Commonwealth sentencing law that worked reasonably well. However, as a result of the 1989 legislation a change was made to the period within which breach action under s20A had to be taken. To fully appreciate the problems that have resulted from this change, it is necessary to briefly outline the orders that may be made under s19B and s20. Pursuant to s19B a Court may discharge an offender, without proceeding to conviction, upon the offender entering into a bond to be of good behaviour for a period of up to three years, with or without special conditions. Under s20(1)(a) the Court may upon conviction impose a good behaviour bond, with or without special conditions, for a period of up to five years. Alternatively, under s20(1)(b) the Court may impose a sentence of imprisonment and then direct that the sentence be suspended either wholly or in part upon the offender entering into a bond to be of good behaviour for a period of up to five years. One of the changes to s20A effected by the 1989 legislation was to require proceedings for a breach of an order made under either s19B or s20 to be instituted prior to the expiration of the good behaviour bond or, in the case of a suspended sentence under s20(1)(b), prior to the completion of the sentence. In the Explanatory Memorandum to the 1990 legislation it was stated that the change to s20A: "... clarifies that action for a breach of a recognisance (whether under s19B or s20 of the Principal Act) may only be taken during the period of the order and in the case of suspended sentences under paragraph 20(1)(b) of the Principal Act, breach action may also only be taken before completion of the sentence." With respect, this was not a particularly accurate statement, for prior to the amendment it was quite clear that breach action could be commenced either before or after the expiration of the period of the bond provided, of course, that that action was taken in respect of a breach occurring during that period. It was further stated in the explanatory memorandum that the changes to s20A were necessary "to bring a breach of a suspended sentence..into line with the action that may be taken for breach of a parole order or licence." True, in so far as revocation at the discretion of the Attorney-General is concerned, under s19AU the Attorney-General may only revoke a parole order or licence before the end of the parole period or licence period as the case may be. However, under s19AQ the imposition of an effective sentence of more than three months imprisonment in respect of an offence committed during the parole or licence period will result in automatic revocation of the parole or licence order, regardless of when that sentence was imposed. With the 1989 amendments, that clearly is not the case with a suspended sentence. I have no great difficulty with the proposition that action with respect to a breach constituted by something other than the commission of a further offence should be instituted within the period of the bond. However, different considerations clearly apply where the breach is constituted by the commission of a further offence, which is in fact the usual course for taking breach action. Having regard to the length of the recognisance period and when the conduct constituting the alleged breach took place it simply may not be possible to take breach action prior to the expiration of the bond, bearing in mind that until there is a conviction for the subsequent offence breach proceedings cannot be instituted. Even if the alleged involvement of a person in a further offence comes to the attention of the authorities relatively quickly, it will still have to be investigated. Consideration of the matter by the prosecuting authority, which may not be my Office, and the actual institution of a prosecution will also eat up time. However, of particular concern is that the offender will now have a powerful incentive to delay being finally dealt with for the further offence in the hope that any conviction imposed will be after the bond has expired. My Office has therefore strongly recommended to the Attorney- General's Department that the pre-amendment position be restored, at least where the breach is constituted by the commission of a further offence during the period of the bond. One further problem resulted from the amendments to s20A(1) in that it was not entirely clear what was the cut-off point for taking breach action in relation to a suspended sentence under s20(1)(b). As I have mentioned earlier, as a result of the amendment to s20A(1), the sub-section now provides that proceedings for breach of a condition attaching to an order made under s19B(1) or s20(1) must be commenced: "... before the end of the period specified in the order in accordance with sub-paragraph 19B(1)(d)(i) or 20(1)(a)(i) or before the completion of the sentence or last to be served of the sentences imposed under paragraph 20(1)(b), ...". As the provisions of s20(1)(a) relating to the imposition of a good behaviour bond are incorporated by reference in the suspension of a sentence under s20(1)(b), there was an argument that the cut-off point for taking breach action in the case of a suspended sentence was either the expiration of the sentence imposed under s20(1)(b) or the expiration of the bond attaching to that suspended sentence, whichever was the greater. However, the view my Office took of the legislation was that breach action in respect of a suspended sentence had to be commenced prior to completion of the sentence, notwithstanding that this had the anomalous result that where a bond was imposed for a period which would extend beyond the date the sentence expired (which would often be the case) that part of the bond which exceeded the sentence imposed would not be enforceable. To the extent there was an ambiguity in the legislation, the passage from the Explanatory Memorandum I referred to earlier made it quite clear that such was intended. This question arose for decision in the matter of Kevin James O'Brien (unreported, 11 October 1991 and 4 November 1991). In that case the Victorian Court of Criminal Appeal had indicated that it was disposed, in partially suspending a sentence pursuant to s20(1)(b), to impose a bond for a period which would extend beyond the end of the sentence. The Crown made submissions to the effect that it would be inappropriate to do so, on the basis that once the sentence had ended proceedings could not be taken for a breach of the condition to be of good behaviour. Somewhat surprisingly, this submission was rejected. The Court considered that the words of the sub-section were quite unambiguous, and that breach proceedings could be commenced in respect of a suspended sentence so long as they were taken "either before the end of the period of good behaviour specified or before the completion of the sentence". While the Court's attention was drawn to the relevant passage of the Explanatory Memorandum, the Court considered that, as it regarded the words of s20A(1) as unambiguous, they could not be given a meaning other than their ordinary meaning, and accordingly the passage in the Explanatory Memorandum was erroneous! While the decision in O'Brien's case avoids what is, in my opinion, a clear anomaly, I confess I do not find the Court's reasoning all that convincing, and courts in other jurisdictions may not be disposed to follow it.
The final matter I wish to touch on is s21E which, so far as I am aware, has no counterpart in any other Australian jurisdiction. This section empowers the Director of Public Prosecutions to appeal against the inadequacy of a sentence or non-parole period imposed in respect of an offender at any time while the offender is under sentence where the offender had received a discount at sentence on account of an undertaking to co-operate with law enforcement agencies in proceedings against other persons, and has subsequently without reasonable excuse reneged on that undertaking. To that end, a court when sentencing an offender who has given such an undertaking is required to specify the amount of the discount the offender has received. This section was inserted as a consequence of the provisions of the new legislation dealing with release on parole. Where the federal sentence in the aggregate is greater than three years but less than 10 years, and a non-parole period was specified, s19AL of the Crimes Act provides that release on parole is to be automatic, with the Attorney- General's function being limited to setting the terms of any conditions attaching to release on parole. Only if the federal sentence in the aggregate is 10 years or more does the Attorney-General have a discretion to defer release on parole. Some no doubt will question the wisdom of providing for automatic release on parole irrespective of the offender's conduct during the period of imprisonment. However, be that as it may, of more immediate concern to my Office at the time this legislation was being prepared was that, with automatic release on parole, an offender could receive a discounted sentence upon promising to co-operate in the prosecution of others, and then safely ignore that undertaking. Previously in such cases the conduct of the accomplice had been drawn to the attention of the Attorney-General for his consideration whether release on parole should be deferred. It was therefore recommended by my Office that, if automatic release was to be retained, nevertheless the Attorney-General should retain a discretion to defer release on parole in those limited circumstances. While our recommendation was not found acceptable, those framing the legislation came up with s21E in lieu. Nevertheless, there are potential problems with the section. It will be recalled that in Pipe (1966) 51 Cr. App. R 17 it was held that evidence should not have been admitted from an accomplice against whom proceedings had been brought but not concluded, on the basis that, as he had not been finally dealt with, there was an obvious and powerful inducement for the witness to ingratiate himself with the prosecution or the court. Extrapolating from that decision, it has been suggested that a witness who has received a discounted sentence on account of an undertaking to co-operate in the prosecution of others has an equally powerful inducement to ingratiate himself with the prosecution, and accordingly cannot be said to have been "finally dealt with". The facts in Pipe are clearly distinguishable from the sort of case with which s21E is concerned, and for my part I do not consider that the availability of an appeal under s21E would justify exclusion of the accomplice's evidence. True, defence counsel will be able to use the availability of an appeal under s21E to attack the credibility of the accomplice. However, that will be a matter for the jury to consider in determining the weight to be attached to the accomplice's evidence.
While I have been critical of the Commonwealth's new sentencing legislation, it would be remiss of me if I did not offer an alternative to the present unsatisfactory state of affairs. Given the existing framework, no doubt it would be possible to rectify most if not all of the faults in the present legislation, and furthermore ensure that the legislation is expressed in clear and unambiguous language. However, the legislation would remain fundamentally flawed, for there would still be the problems inherent in attempting to provide a separate regime for the sentencing of federal offenders. I do not deny the difficulties confronting the Commonwealth in constructing a framework for the sentencing of federal offenders which is both principled and workable. On the one hand, there is obvious force in the argument that federal offenders should be treated as equally as possible no matter where they are tried. However, one cannot escape the limitations inherent in the Commonwealth's heavy reliance on the State criminal justice systems. Our experience in operating under the new legislation over the last 20 or so months has demonstrated that it is simply unrealistic to expect State courts to be familiar with and consistently apply a quite separate body of law when sentencing a federal offender, a body of law which may be quite dissimilar to that ordinarily applied by that court. There are also issues of equity of punishment involved given that federal offenders are housed in State prisons alongside State offenders. Mindful as I am of the difficulty confronting the Commonwealth in resolving these competing policy choices, as the New South Wales Court of Criminal Appeal in El Karhani observed, the new legislation: "... glosses over that difficulty and does nothing to resolve it. Indeed in some ways it exacerbates it." No one would dispute that in an ideal world the prosecution and punishment of federal offenders should be subject to the one set of laws no matter where the offender is dealt with. However, the "autochthonous expedient" is not an ideal world. It is a pragmatic one. The only workable policy is that federal offenders should be subject to State sentencing laws in their entirety, save where it is necessary to make special provision by reason of the fact that they are federal offenders - for example, in the procedures for release on parole. The Commonwealth could then direct its energies in the direction of encouraging the States and Territories to adopt uniform sentencing laws.