Public punitiveness and judicial minimalism

WCB v R is an interesting example of the judiciary's willingness to engage in the public debate concerning sentencing standards (summary of reasons available here).

The bulk of the judgment concerns the following ground of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.

Statements of this nature are quite common in sentencing remarks. As the judgment records at [36], courts have often spoken of the community's justifiable concern about sexual abuse of children, and the need to respond to such concern with appropriately severe penalties.

Despite this straightforward point, the court spends 15 pages responding to one reasonable simple ground of appeal. The analysis includes:

• Comments on the media's common concern about supposedly lenient sentences (for example, this article)
• Lovegrove's research on public attitudes to sentencing, which show that, when given all the facts members of the community tend to impose sentences slightly lower than the judiciary would
• The work of the Sentencing Advisory Council to demonstrate that public concerns about lenient sentences usually stem from inadequate information (available here)
• The importance of general and specific deterrence in sentencing for child sexual abuse offences
• The role of the courts and the media to publicise the sentences commonly imposed for serious crimes so as to make general deterrence effective.

The end result was a thorough rejection of the defence argument that the sentencing judge's comments, in essence, involved pandering to misinformed public views. In the course of doing so, the court was critical of the mass media's role in perpetuating this myth. See, for example, this statement from paragraph [16] of the judgment:

The community is very poorly informed about most sentences that are imposed. Every day many sentences are handed down across the Magistrates’, County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent. The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness

The Court noted, based on research by the Sentencing Advisory Council, that the media report on very few sentencing decisions, and that the decision to report is based in part on whether the case is in some way 'extreme'. Interestingly, the court recognises that it is unreasonable to expect the media to report on every judgment and that some sort of selection process is therefore natural. Footnote 9 states -

Given the number of sentences handed down each day, the media cannot have reporters in all courts but there are means whereby the courts could ensure that the essential information as to the sentences is made available to the community and the media. The recently developed Supreme Court Sentencing Tables are an example: see the Supreme Court of Victoria website http://www.supremecourt.vic.gov.au/

In a similar vein, paragraph 43 concludes that -

The courts and the media must be able to utilise all technologies that are available so as to achieve a more comprehensive reporting of sentencing for all types of criminal conduct.

Now, without being to flippant, this seems to be an exercise in patting ones self on the back while slapping the County Court, which posts very few sentences indeed on the internet (Austlii, for instance, contains almost exclusively civil judgments). The tables produced by the Supreme Court themselves provide very little data on the fact of the case, which would be necessary for a member of the public to develop an informed opinion about whether the penalty was appropriate. Instead, the tables provide:

• The case name
• The primary charge
• The date of judgment
• The medium neutral citation and Austlii link
• The total effective sentence and the discount for a plea of guilty, and
• The name of the judge.

Now, the County Court is a very busy trial court. Approximately half of its criminal caseload involve sexual offences and so any judgment is subject to section 4 of the Judicial Proceedings Reports Act 1958 which requires de-identifying the complainant. Given that the court needs to read out the sentencing remarks, without de-identifying everyone, the process of de-identifying would involve extra work for the court. However, it is unlikely that the task is particularly onerous, and the Court of Appeal routinely publishes appeals against sentence with the parties de-identified. It seems clear that this judgment marks the latest push by the Supreme Court and Court of Appeal for other courts to open up their judgments to the public and make use of the opportunity provided by the internet to not just have courts open to the public, but to have the results open to a public interested in the outcome of court cases, but that lacks the time to spend all day in the court precinct waiting for individual cases.

All that aside, the part that surprises me most about WCB v R is that so much of it reads more like a conference paper or journal article, rather than a judgment. Chief Justice Warren and Justice Redlich certainly do not fit the model of 'activist' judges. Instead, they are traditionally cautious, judicial minimalists, who decide only the issues required by the case. But there is a clear sense in this judgment that the court went further than it needed to in responding to the argument.
In the end, the case boiled down to a manifest excess argument which succeeded on the basis that the sentencing judge imposed, in what appears to have been a sadly common case of sexual penetration of a child under 16, the highest sentence in the 5 year period 2003 - 2008. The court knocked off a year each from the head sentence and two counts of indecent act with a child. After adjusting cumulation orders, this cut the sentence from 9 years, 3 months to 6 years, 9 months.

And the story the next day in the Herald Sun, after this spirited defence of court sentencing practices and the role of the media in providing accurate information - A man who raped a 10-year-old girl has had his jail term cut by judges. I guess some things never change.