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.

Abolition of sentencing double jeopardy
The court explained that the process of considering an appeal consists of three stages:

  1. Determining whether the original sentence was affected by error;
  2. Determining whether, despite error being established, the court would decline to intervene on a discretionary basis;
  3. If the court finds error and decides to intervene, determining the appropriate sentence.
The court held that double jeopardy was abolished as a consideration at each of these stages.

Like the NSW Court of Criminal Appeal in R v JW, the Victorian court agreed that rarity of appeals, in so far as it was a sentencing principle, was a manifestation of double jeopardy and was abolished.The court also agreed that the removal of double jeopardy removed any presumptive element of distress or anxiety associated with standing for sentence a second time. Though curiously, the court stated at [99] that:

We find it unnecessary to determine whether the term ‘double jeopardy’ in both ss 289 and 290 is to be confined to ‘anxiety and distress’, in the sense spoken of in JW or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion. (emphasis added)
The later paragraphs provide limited insight into what the court meant by "does not otherwise diminish the scope of the residual discretion". The court stated that the scope of the residual discretion was uncertain and that it could include factors such as delay, parity, totality, rehabilitation and fault on the part of the Crown. However, the highlighted statement above seems a strange way of saying that the removal of one basis for exercising the discretion does not remove other unrelated bases, since logically that should go without saying.

One aspect the court highlights in relation to delay is that:

Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent. If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the Court will be reluctant to disturb that situation. The same is true where there has been a significant deterioration in the respondent’s health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal. Particularly, in a case not involving criminality of the highest order, the Court may take the view that it would be unfair and inappropriate, to intervene merely to mark the Court’s disapproval of the sentence originally impose. (emphasis added)
The last sentence is very peculiar and I hope that it does not lead to the reintroduction of all the restraint previously gathered under the rubric of double jeopardy, masquerading as 'unfair and inappropriate to intervene merely to mark the Court's disapproval of the sentence originally imposed'. If Crown appeals exist to ensure adequate sentencing practices, then the guidance offered shouldn't be distorted by saying that, even though the sentence was manifestly inadequate (that is, clearly outside the range open in a reasonable exercise of the sentencing discretion), the court will not intervene because the criminality was not serious enough.

Continuing relevance of double jeopardy
One area of dispute between the majority (Ashley, Redlich and Weinberg JJA) and the minority (Warren CJ and Maxwell P) concerned the residual relevance of sentencing double jeopardy for the Director. Section 287 states that the Director may bring an appeal against sentence if he or she

(a)  considers that there is an error in the sentence imposed and that a
        different sentence should be imposed; and
(b)  is satisfied that an appeal should be brought in the public interest.
The majority held that the lack of any mention that double jeopardy was abolished in s287 meant that it continued to operate as a fetter on when the Director should exercise the statutory power to bring an appeal. As they explained at [67]-[71]
Save to the extent that double jeopardy is removed from the Court’s consideration by s 289(2) and s 290(3), Parliament has not, in our opinion, evinced an intention to abolish or modify the constraints which courts of the highest authority in this country have always applied to Crown appeals against sentence. There is no basis for reading into s 287, which concerns the Director only, a similar abrogation of what we would regard as ‘a fundamental common law right’ embedded in not just the principle of double jeopardy, but a host of allied protections.
Had Parliament intended to require the Director to disregard double jeopardy when considering the matters set out in s 287(a), or perhaps as importantly, the requirement in s 287(b) that he be satisfied that an appeal should be ‘brought in the public interest’, it would, in our view, have been expected to have said so.
Section 287 is, as we have noted, aimed squarely at the Director and appears not to have any direct application to the task that confronts this Court. Nonetheless, the respondents contended that the approach which this Court should take towards Crown appeals should be informed, to some degree, by the requirement in s 287 that the Director be satisfied that an appeal should be brought ‘in the public interest’.
We regard that submission as problematic. It is not supported by the language used in any of the key provisions and it is difficult to reconcile with the structure of the division within which those provisions appear. No mention is made of the ‘public interest’ being a relevant consideration in s 289, which is the provision directed to the manner in which the Court must approach the determination of Crown appeals.
In stark contrast with the power conferred upon the Director, there are only two conditions, and not three, identified in s 289, that must be satisfied if an appeal is to be allowed. These are first, that the Court is persuaded that there is an error in the sentence imposed; and secondly, that a different sentence should be imposed. Once these two requirements are met, the legislature tells the Court that it ‘must’ allow the appeal. If either of these two requirements are not met, the Court is told that it ‘must’ dismiss the appeal.
In contrast, the minority held [19] - [22] that:
It would, in our view, run directly contrary to this statutory scheme for the Director to continue to have regard to any of the double jeopardy considerations in deciding whether or not to bring an appeal. The Director is entitled – indeed, bound – to approach the s 287(a) question in the same way as this Court is bound to approach the s 289(1) question, that is, without regard to the double jeopardy considerations. Parliament has quite deliberately removed the double jeopardy fetters on the appellate consideration of Director’s appeals. It can hardly have been intended that the Director remain subject to those fetters in deciding whether to bring such an appeal.
Our conclusion reflects what we regard as the clear legislative intent expressed by the removal of double jeopardy from the purview of the Court of Appeal. As the Explanatory Memorandum to s 289 makes clear, that removal has been effected because ‘double jeopardy’ was regarded as distorting sentencing by interfering with the Court’s ability to provide guidance on sentencing to lower courts, and as unduly subordinating the public interest in ‘adequate punishment’:
Consideration of double jeopardy is removed because it interferes with a central function of DPP appeals which is to provide guidance for lower courts on sentencing. Further, the inconvenience and trauma of re-sentencing a person is not the only matter relevant to such policy issues. Rather, the interests of the community in seeing adequate punishment given for criminal offences is an overriding policy consideration.
It would be contrary to that clear policy to have a position where the Court was no longer able to consider double jeopardy, but the Director was mandated to do so when considering whether to bring an appeal. First, this would perpetuate the distortion sought to be removed, in that (ex hypothesi) appeals which otherwise would have been successfully brought before the Court would not be brought; and secondly, it would ignore the primacy which the legislature has given to ‘adequate punishment’ over the ‘inconvenience and trauma’ attending Crown appeals for the offender concerned.
As to authority, it is clear that the constraints on the bringing of a Crown appeal have always been a mirror image of the constraints on the appeal court in considering such an appeal. Again, this is hardly surprising. When the courts declared that only Crown appeals having a ‘rare and exceptional’ character would be entertained, it naturally followed that the Crown was expected to bring forward only those appeals which could be said to exhibit that character. These were simply two sides of the one coin.
In my view, the minority argument certainly seems more persuasive. First, the majority does not provide any indication of how the obligation on the Director could be enforced. Given the majority's reasoning is based on the premise that the test for the Director to institute an appeal is different to the test the Court applies, the majority seem to recognise that it cannot enforce this obligation. Secondly, the assumption that Parliament is aware of R v Diep, the case relied on by the majority to support the existence of a filter seems dubious. The case, so far as I can tell, has been cited only once, in passing, in R v O'Rourke [1997] 1 VR 246. To say that Parliament must be taken to have endorsed such a decision is stretching credulity. Thirdly, it seems peculiar to read in all the common law restraints on Crown appeals against sentence, that Parliament has clearly intended to abolish through express words in ss289 and 290, into a general phrase like 'satisfied that an appeal should be brought in the public interest'. The second reading speech and the explanatory memorandum make clear that the philosophy behind abolishing sentencing double jeopardy was to remove the distorting effect it has on Crown appeals. To shift that distorting effect back a step, so that the Crown doesn't even appeal manifestly inadequate sentences, perhaps on the basis that, while clearly erroneous, the error is insufficiently egregious, should be the kind of conclusion that requires express words, rather than something to be implied by the absence of any reference to double jeopardy in s287.

Overall though, this issue will likely be of little practical importance. Legislative change on this matter is relatively easy, and as an unreviewable obligation, it should make little practical difference to the day-to-day decision making by the Director of when to appeal. Instead, the decision provides general guidance on the meaning of ss289 and 290, and an endorsement of the more detailed analysis that Spigelman CJ undertook in JW.

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