Australian Law Reform Commission

Introduction
Equality
A federal sentencing Act
A federal sentencing database
Sentence indication
An office for the Management of Federal Offenders
Parole

Introduction

ALRC 103 makes 147 recommendations for reform of the law relating to the sentencing of federal offenders. Some of these recommendations are highlighted below and a full list of recommendations is included in the report.

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Equality

Federal offenders are nearly always tried and sentenced in state and territory courts, applying state and territory laws in relation to procedure and, in some jurisdictions, picking up sentencing options available under state and territory law. This creates the potential for federal offenders to receive different sentences for the same offence, or to have their sentences administered in a different manner, depending on the jurisdiction in which they are sentenced.

In a number of other reports the ALRC has considered whether, in pursuit of equality in the treatment of federal offenders between jurisdictions, it would be appropriate and viable to establish a completely separate federal criminal justice system, including federal criminal courts, a federal corrective services agency and federal prisons.[1] This issue is considered again in this report. The ALRC concludes that it is not viableto establish a completely separate federal criminal justice system given the existing state and territory infrastructure, the relatively small number of federal offenders, and the geographic dispersal of offenders across Australia .

However, the ALRC concludes that it is a fundamental principle of the criminal law and the sentencing process that like cases should be treated in a like manner. The ALRC has attempted, in each section of the report, to balance the need for like cases to be treated alike with the necessity of working within a federal system in which the Australian Government relies heavily on the states and territories to administer federal criminal law. In addition, the report recommends that the Australian Government seek to ensure broad equality across Australia in the sentencing, administration and release of federal offenders in different states and territories.

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A federal sentencing Act

The majority of federal sentencing provisions are located in Part IB of the Crimes Act 1914 (Cth). Part IB has been the subject of much criticism since its insertion into the Crimes Act in 1989. It has been described as being complex and ambiguous, unclear about the question of consistency between jurisdictions, and lacking any detailed reference to the aims and purposes of sentencing. Specific provisions have been criticised for their complexity, poor drafting, inflexibility, limited scope and impracticality.

The report recommends a major overhaul of federal sentencing legislation. It recommends that all provisions relating to the sentencing of federal offenders be consolidated into a single sentencing Act. This Act should:

• include an objects clause that states the major objectives of the legislation;
• include a statement of the purposes of sentencing, the fundamental principles that must be applied in sentencing, and the factors that courts must consider in sentencing federal offenders;
• have a clear and logical structure that reflects the chronology of sentencing, administration and release of offenders;
• use language and numbering that is simple and internally consistent; and
• use terminology that, where possible, is consistent with terminology used in state and territory sentencing legislation.

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A federal sentencing database

Sentencing databases promote consistency by informing the exercise of a court’s sentencing discretion. They assist courts by providing judicial officers with reliable, accessible and up-to-date sentencing data in order to ensure that the sentences imposed on individual offenders are appropriate and broadly consistent.

The report recommends that a database on federal sentences should be developed for use by judicial officers and others as a practical tool in promoting consistency in federal sentencing. Such a database is already under development and is expected to be operational in the first half of 2006.

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Sentence indication

Sentence indication schemes enable a judicial officer, prior to the commencement of a trial, to inform a defendant of the sentence, or the type or range of sentences, that he or she could expect to receive upon pleading guilty to an offence. Sentence indication schemes can reduce court costs and save court time by preventing late guilty pleas and unnecessary trials.

The report concludes that a new federal sentence indication scheme should be introduced. The procedures governing this scheme should be the subject of nationally consistent Rules of Court or Practice Directions. In addition, the scheme should have appropriate safeguards to minimise the potential to induce innocent defendants to plead guilty and to ensure that public confidence in the administration of the federal criminal justice system is maintained.

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An Office for the Management of Federal Offenders

The report recommends that the Australian Government establish an Office for the Management of Federal Offenders (OMFO), located within the Attorney-General’s Department, to engage more actively with the states and territories and directly with federal offenders.

The OMFO would have a range of monitoring, liaising and advising responsibilities, including the establishment of a national case management database with information on all federal offenders. The Australian Government currently lacks ready access to information about the vast majority of federal offenders. This has the potential to impede the development of sound evidence-based criminal law policy and makes it difficult for the Australian Government to determine whether or not federal offenders are treated in a manner that is consistent with national standards and Australia ’s international obligations.

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Parole

Under Part IB of the Crimes Act, where a federal offender has been sentenced to more than three years and less than 10 years imprisonment, the Attorney-General of Australia, or his or her delegate, must grant parole at the end of the non-parole period. In effect, parole is automatic for those prisoners. The report recommends that automatic parole for federal offenders should be abolished. Instead, courts should be required to set non-parole periods for federal sentences of imprisonment of 12 months or more. This means that decisions about the early release into the community of all federal offenders serving sentences of 12 months or more will be discretionary.

The arrangements under Part IB for the release of federal offenders on parole are very different to the arrangements in place in the states and territories. Currently, parole decisions in relation to federal offenders are made by a ministerial delegate within a government department rather than by an independent board with broad-based expertise and community membership. The report recommends that a federal parole authority be established to make parole-related decisions in relation to federal offenders. This will ensure that parole decisions are made through an independent, transparent and accountable process and in accordance with high standards of procedural fairness.

[1] Australian Law Reform Commission, Sentencing of Federal Offenders, ALRC 15 (Interim) (1980); Australian Law Reform Commission, Sentencing, ALRC 44 (1988).