‘Same crime, same time’: ALRC calls for consistency in federal sentencing

Thursday, 22 June 2006: Australia ’s system for sentencing federal offenders should be significantly overhauled to provide greater consistency, fairness and clarity, according to a major report by the Australian Law Reform Commission (ALRC) tabled today in federal Parliament.

ALRC President Professor David Weisbrot said there is compelling evidence of inconsistent treatment of federal offenders, as well as a range of gaps, uncertainties and problems in the way the federal system meshes with the states and territories.

“Most federal criminal matters are heard in state and territory courts. This means we have a situation where offenders who have committed the same crime can receive very different outcomes based solely on the state or territory in which they are sentenced. That’s clearly not fair,” said Prof Weisbrot.

“Australia ’s federal criminal justice system has expanded and evolved significantly in the past two decades. Having carefully considered the evidence, we have formed the view that the current system for sentencing federal offenders simply isn’t up to the task.”

The report, Same Crime, Same Time: Sentencing of Federal Offenders, includes a detailed analysis of over 25,000 fraud and drug cases handled by the Commonwealth Director of Public Prosecutions between 2000 and 2004. The research – the first to look at federal sentencing outcomes – shows a significant disparity in both the type and the severity of outcomes for federal offenders across state and territory lines.

The report makes 147 recommendations, including:

  • introduction of a new Federal Sentencing Act to promote consistency, clarity and transparency
  • development of a database of federal sentences for use by judicial officers
  • introduction of a ‘Sentence Indication Scheme’ to provide offenders with an indication of their sentence if they were to plead guilty, possibly avoiding costly court trials and distress to victims
  • establishment of a federal parole authority and an Office for the Management of Federal Offenders.

Commissioner-in-charge of the Inquiry, Mr Brian Opeskin said that one of the problems with current federal sentencing legislation is its complexity. “A clear and concise Federal Sentencing Act would eliminate confusion and ambiguity and lead to more consistent outcomes,” he said.

“Similarly, a database of federal sentences would make it easier for judges and magistrates to determine whether they are exercising their sentencing discretion in a way that is consistent with their colleagues.”

Mr Opeskin said there was also a need to bring the system for parole decisions in line with arrangements in most states and territories.

“Decisions about parole of federal offenders are currently made by a departmental officer on the basis of an offender’s paper file. It would be preferable for these decisions to be made by a federal parole authority involving broad community representation and the opportunity for the prisoner to be heard.

“An Office for the Management of Federal Offenders would ensure that administration of this increasingly complex system is adequately resourced, allowing better tracking of federal sentencing decisions and of offenders who serve their sentences in the states and territories,” said Mr Opeskin.

The ALRC held over 80 meetings with interested parties and received 98 written submissions, including 16 from federal offenders, during the two-year Inquiry.

Tuesday, 29 November 2005: Federal sentencing laws and procedures require a major overhaul, recognising that the federal criminal justice system has expanded and matured in recent decades, the Australian Law Reform Commission said today.

ALRC President Professor David Weisbrot said “the ALRC is proposing four major structural changes that may be seen as controversial, but represent logical responses to the problems we’ve found and are necessary to meet the significant new demands being placed on the federal criminal justice system”:

  • the introduction of a new, dedicated Federal Sentencing Act;
  • the expansion of the role of the Federal Court, to provide for original (trial) jurisdiction for specified federal crimes and to enable it to act as a national court of criminal appeal in federal matters;
  • the creation of an Office for the Management of Federal Offenders to monitor federal offenders and liaise more actively with state and territory authorities; and
  • the establishment of a new Federal Parole Board, similar to those operating in all states and territories.

Prof Weisbrot’s comments were made as the ALRC released a Discussion Paper—Sentencing of Federal Offenders (DP 70)—as part of its review of federal sentencing laws and procedures. The Discussion Paper contains 140 proposals for reform, which will be subject to further consultation and debate before a final report and recommendations are presented in early 2006.

“In the past, federal offending was largely limited to such crimes as drug importation, and tax or welfare fraud. But the system has grown—the reach of federal criminal law is now much broader, including such new offences as terrorism, illegal fishing, people smuggling, child sex tourism and sexual slavery.”

Prof Weisbrot said that because the federal criminal justice system originally was very small, it traditionally has ‘piggybacked’ on the state and territory judicial and correctional systems.

“This means a federal offender in one state or territory may serve a sentence in a very different way to a person who committed the same crime in similar circumstances, but in a different part of Australia. States and territories also have varying approaches to sentencing options, probation and remissions and these affect the options available to federal offenders.

Prof Weisbrot said a new Federal Sentencing Act would provide a more logical structure for sentencing laws, and would be drafted in much clearer terms than the existing parts of the federal Crimes Act.

“Federal crime forms only a small part of the typical caseload of a state or territory judicial officer, so it is especially important that federal sentencing laws can be easily located, understood and applied.”

Commissioner-in-charge of the inquiry, Mr Brian Opeskin, said the ALRC had held more than 60 meetings around Australia with a diverse range of interested parties, and received over 50 written submissions, since the inquiry commenced in July 2004.

“Judges and magistrates consistently emphasised that they wanted a wider range of federal sentencing options to deal with the circumstances of each case,” Mr Opeskin said.

“Some options that are available in state and territory jurisdictions—such as the rehabilitation programs offered through state Drug Courts—are simply not available to federal offenders. Other options such as periodic or home detention are only available to some federal offenders, depending on where the sentencing takes place. That’s clearly not fair.

“We also contacted about 2000 federal offenders, including about 700 in custody, and received more than 200 replies. Federal prisoners consistently expressed concerns about the lack of information about parole, transfer to another jurisdiction, and access to the relevant federal legislation.

Mr Opeskin said a major jurisdictional change proposed by the ALRC is to give the Federal Court a bigger criminal caseload. “At the moment, the Federal Court does very little criminal work; however, its civil caseload in areas such as taxation, trade practices and corporations means it already specialises in much of the law associated with federal crimes. Many Federal Court judges already have backgrounds in criminal law as practitioners or as state court judges.

“We’ve also floated the idea of taking appellate jurisdiction for federal criminal matters away from state Courts of Criminal Appeal and giving it to the Full Court of the Federal Court. We believe this would help promote consistency of principle and practice among the states and territories in federal sentencing. While the High Court can do this, in practice very few federal sentencing matters reach the High Court.”

Mr Opeskin said that the ALRC has proposed the establishment of an Office for the Management of Federal Offenders (OFMO), to give the federal Government a much more active role in monitoring and managing federal offenders.

“Because federal offenders sentenced to terms of imprisonment are committed to state and territory prisons, procedures vary depending on where they are being held. We’ve heard that breaches of parole or licence are dealt with differently around Australia . The OMFO also would be responsible for ensuring better information and statistics are kept on federal offenders, and for supporting the proposed new Federal Parole Board.

“The Federal Parole Board would ensure that decisions about releasing federal prisoners are made in an open and transparent manner, with an opportunity for the prisoner to be heard. Currently, decisions on prisoner release are made by a departmental officer, based on a review of the prisoner’s file,” Mr Opeskin said. “There is no evidence that poor decisions are being made; rather, we believe that public confidence in the system requires a better process, as recognised in the states and territories.”

Other significant proposals raised in the Discussion Paper include:

  • facilitating the use of victim impact statements and pre-sentence reports in federal sentencing;
  • introducing a ‘Sentence Indication Scheme’, to allow federal offenders to seek an indication of their sentence, if they pleaded guilty and avoided a costly court trial and possible distress to the victim and witnesses; and
  • encouraging specialisation within the state and territory courts, so that judges and magistrates can become more familiar with using complex federal laws and procedures.

Thursday, 3 February 2005: Laws dealing with the sentencing of federal offenders are internally inconsistent, convoluted and confusing, the Australian Law Reform Commission said today.

ALRC President Professor David Weisbrot said that with the recent growth in the number and range of federal offences, it is critical that we have a sentencing regime that is fair in principle and works smoothly in practice.

“Federal offences have long been associated with a limited range of crimes—such as drug importation, corporate crime, tax evasion and social security fraud,” Prof Weisbrot said, “but that’s changing rapidly with new federal regulations covering criminal activity in such areas as terrorism, transnational crime, cyber crime, computer hacking and international sex offences.”

Prof Weisbrot’s comments coincide with the ALRC’s release of a community consultation paper, Sentencing of Federal Offenders (Issues Paper 29), which forms the first stage of a major review of the federal sentencing laws set out in the Commonwealth Crimes Act.

“There are two major strands to this Inquiry. First, there are the problems with the relevant sections of the Crimes Act itself—the judiciary has strongly criticised specific provisions of the Act for their poor drafting, inflexibility, and lack of sufficient scope, and because they appear to lead to undesirable outcomes in practice,” he said.

“Second, the Inquiry will consider to what extent federal offenders should be treated equally, no matter where in Australia they are sentenced. Currently, federal offenders are almost always dealt with by state and territory courts and their sentences are administered by state and territory correctional authorities—and so significant disparities can and do arise.”

Prof Weisbrot said that one of the difficulties faced by the ALRC in developing sound policy in this area is the lack of adequate statistics.

“In effect, federal prisoners are swallowed up in the much larger state and territory systems, and it’s hard to get a clear picture of their treatment. However, the ALRC’s initial research highlights that:

  • federal crimes account for approximately 10% of all criminal activity in Australia;
  • there are 685 federal prisoners in jails across Australia (down from 800 in 2002);
  • 55% of federal prisoners are in NSW, 15% in WA, 13% in Qld and 10% in Victoria; and
  • most federal offenders plead guilty—up to 97% of offenders charged with summary (minor) offences and 86% charged with indictable (major) offences.

“There also are some interesting concentrations of offences on a state-by-state basis. For example:

  • 66% of federal prisoners convicted of drug offences are located in NSW;
  • 80% of federal prisoners convicted of migration and people smuggling offences are in WA; and
  • 80% of federal prisoners convicted of illegal fishing are in Queensland.”

The Commissioner-in-charge of the Sentencing Inquiry, Mr Brian Opeskin said a major issue was whether equality in sentencing of federal offenders should be maintained between federal offenders serving sentences in different states and territories, or between offenders within the same state or territory, regardless of which particular laws they have breached.

“Differences in approaches to various sentencing issues—such as the options for sentencing, probation orders and remissions—mean federal offenders in one state or territory may serve a sentence in a very different way to a person convicted of the identical crime in another jurisdiction,” Mr Opeskin said.

“Is it fair for example, that a federal offender in NSW or the ACT may have the option of weekend detention, when that’s not available as an option for an offender who has committed the same crime in Victoria?”

Mr Opeskin said if ‘same crime, same time’ was an important policy objective in sentencing federal offenders, one option would be to harmonise state and territory laws to iron out the disparities between jurisdictions. However, in the field of sentencing, with its political sensitivity in the ongoing ‘law and order debate’, there would be little prospect of success.

He said the inquiry would also canvass the range of non-custodial sentencing options for federal offenders.

The ALRC also has heard criticism about the absence of any formal system of parole at the federal level. Mr Opeskin noted that “all state prisoners can apply for parole to an established Parole Board, usually chaired by a judge or retired judge, which hears their case and whose decisions are subject to judicial review. However, similar decisions about federal prisoners are made by a Commonwealth bureaucrat solely on the basis of written documentation, without a right of appearance, and with no appeal process”. 

The Issues Paper contains questions for comment and discussion. The ALRC has begun an intense round of consultation with interested parties—including the judiciary, legal profession, relevant state and commonwealth departments, prison officials, federal offenders and others. The ALRC expects to release a Discussion Paper later this year setting out draft proposals for reform, before delivering its final report to the federal Attorney-General in early 2006.