Wednesday, December 22, 2010

Encouragement or coercion

In Victoria, sentence indication schemes have evoked a range of attitudes from lawyers and the judiciary. Available in the Magistrates Court since 1992 without any legislative backing, the scheme was given a legislative footing and expanded to the higher courts as a pilot project in 2008 following a Sentencing Advisory Council report. In 2010, the council report on the pilot recommended continuation of the sentence indication scheme and the government implemented that recommendation by repealing the sunset provision that previously hung over the sentence indication clauses.

Despite this brief history of gradual acceptance of sentence indication processes, the higher Victorian courts have been generally cautious about sentence indication. They have cited concerns about judicial independence, the risk of plea bargaining and the involvement of the judge in an accused's plea decisions. Guariglia v R [2010] VSCA 343 is the latest example of this caution.

Saturday, December 18, 2010

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.
Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.

Monday, December 13, 2010

The meaning of 'sentence'

Ludeman, Thomas & French v R is the first five-judge bench decision on the meaning of the new appeal provisions in the Criminal Procedure Act 2009. The court held that the right to appeal 'a sentence' and the provisions governing when the court may grant leave or allow the appeal, apply to:
  • The recording of a conviction;
  • The individual sentences;
  • Any concurrency or cumulation orders associated with individual sentences; 
  • The non-parole period;
  • An aggregate sentence;
  • Superannuation orders;
  • Restitution orders; and
  • Compensation orders.
However, the provisions do not apply to what is conventionally called the 'total effective sentence'.

Monday, December 6, 2010

The endangered charter

With the election of the Ballieu liberal government at the recent state election, the Charter of Human Rights and Responsibilities Act 2006 would seem to have entered the endangered species list. Before and during the campaign, then-shadow Attorney General Robert Clark stated that the Charter needed to be repealed or radically altered. In The Australian's legeal affairs section yesterday, we saw a tag-team effort by Peter Faris and Mirko Bagaric to support the repeal of the Charter.