Sentencing of federal offenders (1978-88)

In August 1978, the Attorney-General asked the ALRC to inquire into the ‘laws of the Commonwealth and the Australian Capital Territory relating to the imposition of punishment for offences and any related activity’.

In 1979, a series of Research Papers was published as well as a Discussion Paper Sentencing: Reform Options (ALRC DP 10). In 1980, the Commission published a second Discussion Paper Sentencing of Federal Offenders (ALRC DP 15).

ALRC Report 15

This interim report outlined that there was a need for greater consistency and uniformity in sentences imposed on federal offenders, especially with regards to federal offenders who were tried in state courts, sentenced by state judicial officers and held in state prisons, although they were paroled under federal laws.

Following publication of this first interim report, work on the reference was suspended until 1984.

ALRC Report 43

The Attorney-General specifically asked the Commission to give an interim report on the anomalies present in the law governing parole and release before its final report was completed. It is this aspect of the subject that forms the basis of ALRC Report 43.

The Commission observed a number of problems in the management of Commonwealth prisoners’ early release. A person convicted under a Commonwealth law is imprisoned in a state or territory-run jail. For these offenders, parole was governed by the Commonwealth Prisoners Act 1967 (Cth) and the Crimes Act 1914 (Cth). However, because the person is not imprisoned under state or territory law, the state or territory authorities have no power to release Commonwealth offenders from custody. Instead, the authority to release a person must be given by a Commonwealth statute.

The Commonwealth Prisoners Act was originally designed to ensure that Commonwealth prisoners received the same entitlements to parole as they would if they were being sentenced for an offence against the law of the state where they were imprisoned. However, with changes to state and territory law, discrepancies appeared between state and Commonwealth practices.

The Act did not operate consistently across jurisdictions. Within the one prison, the criteria used when making decisions about an offender’s early release would vary according to whether the offender was imprisoned under state or Commonwealth law. Under the Commonwealth Prisoners Act, parole was only available where a minimum term of imprisonment had been fixed by a court. Because of technicalities associated with this wording, some Commonwealth prisoners were denied parole altogether.

Also, the Act did not apply to all Commonwealth offences. The Act contained some idiosyncratic sections, which excluded some types of crime from its operation.

To compensate for these differences, it became necessary to rely on a discretionary power. In effect, a Commonwealth prisoner would be recommended for parole at the same time as his or her state or territory counterpart. In itself, this had a number of problems. The discretionary power was extremely broad and could not be varied once made. Because there were no guidelines stating how that discretion was to be exercised, a large number of prisoners applied for parole without having a sound basis for their claim. Also, because this power was vested in the Governor-General, the system by which a prisoner gained parole was excessively complex, passing through three levels of decision-making.

Finally, it was found that management of an offender’s parole following release needed to be simpler and more flexible.

A draft Bill is included in the report.

ALRC Report 44

ALRC Report 44 represented the Commission’s final work on the reference given to the Commission in 1978 and examined the sentencing and punishment of both federal and ACT offenders.

The report examined the public concern that existed about inconsistency in sentencing and the difference between the term of imprisonment imposed by the court and the period that was served in prison before parole.

ALRC Report 44 also identified that there were real economic and social problems with the sanction of imprisonment. The issues focused on in the report included appropriate severity of sentencing; rehabilitative goals and restitution for victims; inhumane, cruel or vengeful punishments such as capital punishment or corporal punishment; and consistency in sentencing.

The ALRC concluded that sentencing should place less emphasis on imprisonment and that legislation should clearly acknowledge that imprisonment should be the punishment of last resort and that no offence should specify that imprisonment was the only punishment to be imposed.

Key recommendations

ALRC Report 15

• Punishment for persons convicted of federal offences should be—as far as possible—certain, consistent and proportional to the gravity of the crime for which the offender is being sentenced.
• Comprehensive federal and territorial statistics concerning offenders and offences against Commonwealth laws should be compiled as a matter of priority.
• To provide a comprehensive picture of the Australian prison population, and specifically of federal prisoners, a census should be instituted of all persons held in custody in Australia.
• Offenders against the laws of the Commonwealth should be treated as uniformly as possible throughout Australia.
• A Sentencing Council of Australia should be established to gather information and review sentencing practices in relation to federal offenders, and issue guidelines for judicial officers involved in sentencing.

ALRC Report 43

• The Commonwealth Prisoners Act should be amended to give effect to its original policy: consistent treatment of state or territory and Commonwealth prisoners in similar circumstances. The amended legislation should be flexible enough to adapt to changes in state or territory law without needing frequent amendments.
• Parole should be available to all Commonwealth prisoners. To achieve this, courts must specify a minimum sentence for such prisoners. Generally, the treatment of the prisoner should reflect the law of the State or Territory in which they are convicted. Therefore, the minimum term set should be similar to the sentence of a prisoner under state law for a similar offence. When the minimum term has expired, a Commonwealth prisoner should be released from prison automatically, thus avoiding the existing complex, multi-levelled decision-making process. Federal offenders sentenced to life imprisonment who have not been given a minimum term should be able to be released on parole by order of the Minister.
• Parole should only be revoked if, following their release, the former prisoner commits an offence and is sentenced to a term of imprisonment; or the prisoner breaches a condition of parole.
• The Governor-General should retain a discretionary power to release offenders on licence before they are entitled to be released on parole. This should only be done in exceptional circumstances.

ALRC Report 44

• Sentencing should be guided by overriding principles of justness and inhumane, cruel or vengeful punishments such as capital punishment, corporal punishment and torture should in no circumstances be permitted.
• Imprisonment should be considered the punishment of last resort.
• There should be no mandatory prison term prescribed for any federal offence.
• Truth in sentencing should be adopted as an objective.

Implementation

In its final report on the Sentencing reference (ALRC Report 44) the Commission revisited the recommendations made in ALRC Report 43. One aspect of the final report that showed a change in approach was in the calculation of the non-parole period. In ALRC Report 44, the Commission recommended that 70 per cent of the period of imprisonment should be served before release. Here, the Commission moved away from the previous policy of keeping a Commonwealth offender’s sentence and parole in line with their state or territory counterparts.

The Crimes Legislation Amendment Act (No 2) 1989 (Cth) was drafted in response to ALRC 44. Although the Act did not adopt the percentage system described above, it did create a sentencing system that was largely independent of state and territory sentencing practices. However, some of the proposals made in ALRC Report 43 were implemented.

Under the amended Crimes Act 1914 (Cth), the court must fix a non-parole period for Commonwealth offenders unless there are good reasons for not doing so. The offender is automatically granted parole when that period has passed. These provisions achieve the effect the Commission intended in ALRC Report 43: parole is available to all Commonwealth prisoners.

The amendments also implemented the Commission’s recommendations regarding the management of parole itself. Under the new system, there are no conditions that must be included in a parole order other than that the offender be ‘of good behaviour’ during the parole period. The process of parole is now the ultimate responsibility of the Attorney-General, who is also the only person with the power to revoke parole.

The only area in which the Crimes Act 1914 reflects the interim report’s policy of the equality of treatment between state and Commonwealth prisoners is in the reduction and remission of sentences. When a person’s parole has been revoked, the court must determine a new term of imprisonment. The Act allows Commonwealth prisoners to take advantage of state or territory laws in this area. Where the particular state or territory law does not allow this, the Crimes Act states that when a court is calculating the new term, they must take the time already spent on parole into account.

The ALRC was given terms of reference in July 2004 to review the relevant part of the Crimes Act. The review was completed in 2006 with publication of Same Crime, Same Time: Sentencing of Federal Offenders (ALRC Report 103).

Continuing issues

The ALRC has examined sentencing issues in other reports including Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84) (a joint inquiry with the Human Rights and Equal Opportunity Commission); Multiculturalism and the Law (ALRC Report 57); and The Recognition of Aboriginal Customary Laws (ALRC Report 31).

Extensive reforming of sentencing policy and law has also occurred in the States and Northern Territory since the release of the ALRC’s reports on sentencing, with these reforms largely being influenced by research and recommendations contained in ALRC Report 15 and ALRC Report 44.

The New South Wales Law Reform Commission undertook a broad review of sentencing laws, with reports published on Sentencing (Report 79) in 1996; Sentencing: Aboriginal Offenders (Report 96) in 2000; Sentencing: Corporate Offenders (Report 102) in 2003; and Sentencing Young Offenders (Report 104) in 2005.

In 2006 the ALRC completed a review of Part 1B of the Crimes Act 1914 (Cth), which had implemented some of the recommendations of ALRC Report 44, with the publication of Same Crime, Same Time: Sentencing of Federal Offenders (ALRC Report 103).