LAWS2028 Criminology and Public Policy 2021 – Ben Livings

Topic 6
The Criminal Justice Process,
the Criminal Courts, and
Sentencing
(Read: Dalton, de Lint, Palmer (eds) Crime and Justice: A
Guide to Criminology (Lawbook Co 2021), chapters 14 & 15
 Today …

Background
The criminal justice ‘system’
The decision to prosecute
Charge-bargaining
The jury
Sentencing
Appeals and retrials
State and Federal criminal law

Most criminal justice matters are

determined at the State / Territory level
In SA: (principally)
Criminal Law Consolidation Act 1935
(SA)
Summary Offences Act 1953 (SA)
 Federal
Commonwealth also has the power to legislate for criminal matters where it
has a power generally. See Crimes Act 1914 (Cth)
• Part II (treason and other offences against the government)
• Part IIA (protection of the Constitution)
• Part III (offences relating to the administration of justice)
• Part III A (child sex tourism); Part IV (piracy); Part V (forgery)
• Part VI (offences by and against public officers)
• Part VI A (offences relating to computers)
• Part VII (espionage and official secrets)
• Part VII A & B (relating to postal & telecommunications)

Note also the Criminal Code 1995 (Cth) and various criminal provisions of,
e.g. Bankruptcy Act 1966 (Cth), Competition and Consumer Act 2010 (Cth).
 Public perceptions
Australian survey of social attitudes
Confidence in criminal courts to:

Source: Evans, A. Australian Survey of Social Attitudes (2009)

 The numbers: each year in SA
About 200,000 offences are reported to police
in a year.
In all, about 55,000 get to the Magistrates
Court.
 The numbers
Then about 2,000 arrive at the District Court.
This gets filtered into about 200 completed trials.
About 350 arrive at the Supreme Court. This
gets filtered into about 30 completed trials.
 A system?

Is there a system of criminal justice?

Sort of … but the ‘system’ is more
complicated than that.
Think ‘critically’ about the operation
of the ‘system …
Think about the role of ‘discretion’
 ‘System’

• Police – state police and NT police,

Australian Federal Police (for ACT)
• Courts – different levels of jurisdiction,
appeal courts
• Corrections – prisons, parole, probation,
community corrections.
But there are many other ‘systems’ …

· private security
· prosecutorial services (Directors of
Public Prosecutions)
· extra-judicial processes (diversions)
· specialist courts, including restorative
justice processes (such as conferencing)
· administrative penalties (e.g. ATO)
· victims’ services
· out-sourced welfare services and child
protection services
 And there is a multitude of official regulatory
“systems” e.g. administrative bodies

ACIC (Australian Criminal Intelligence Commission)

(national)
ASIC (Australian Securities and Investments Commission)
(national)
ACCC (Australian Competition and Consumer Commission)
(national)
CMC (Crime and Misconduct Commission) Qld
ICAC (Independent Commission Against Corruption) NSW /
SA
CCC (Corruption and Crime Commission) WA
IBAC (Independent Broad-based Anti-corruption
Commission) Vic
 ‘Criminal’ justice system

 Civil Law – primarily seeks / gives compensation for

injury, although ‘punitive’ damages mixes this up with
punishment
 Criminal Law – to do with punishment / ‘penality’,
though there is criminal compensation
 ‘Regulation’ – can straddle these and muddy further

But there is often confusion between them, especially

when some acts may have both civil and criminal
consequences (eg assault, trespass, deceit/fraud,
defamation).
The distinction is thus not clear-cut.
 An example of this plurality …

For example, an assault that takes

place on the sports field may give
rise to both civil and criminal
consequences.
Sometimes a tribunal decision
‘trumps’ a prosecutorial judgement
too.
 Criminal Law; civil law; or regulation?

What would you do as the Crown Prosecutor …?

https://www.youtube.com/watch?v=anAAJ2fba6E
Ben Thatcher in a Premier League
Game between Manchester City
and Portsmouth in 2006
https://www.youtube.com/watch?v=MUKrjXxAm68
Ben Flower in the Super League
Grand Final between St Helens
and Wigan in 2014
 Ben Thatcher

Pedro Mendes was knocked unconscious and

hospitalised. Ben Thatcher received a yellow card.
Banned for eight games and fined six weeks’ wages.
Ben Thatcher apologised.
Manchester City manager Stuart Pearce:
"Anything that happens on a football pitch should be
governed by the FA and Fifa … Once you start
involving the police, the floodgates can open and you
could end up with a situation where players are
arrested during a game."
 Ben Flower

When interviewed after the match, Lance

Hohaia said: “In the heat of the moment people
do things they regret … I don’t hold any regrets
against Ben [Flower].”
Both Hohaia and Flower were then charged by
the association with disciplinary offences.
Flower got 6 months; Hohaia got one match for
the initial strike on Flower.
 Discussion

Would you prosecute?

What factors would you consider?
 Discussion

Greater Manchester Police

investigated both incidents.

Neither were ever prosecuted.

*
 Discussion

Think about how this might play out

with ‘white-collar’ offenders.
The offences are often difficult to
prove.
In the context of the availability of a
range of regulatory/civil responses,
is prosecution in the public interest?
The decision to prosecute
(prosecutorial discretion)
 The parties

For criminal matters:

• The Prosecutor (DPP) must establish:
• That the accused carried out the act or conduct AND
• That the accused had the intention (mens rea) to commit the
crime.
• If the accused is found guilty, the court will apply what
it considers to be the appropriate remedy, such as a
sentence of imprisonment or a fine or restitution or
some other order.
 Is the DPP independent of government?

The decision to prosecute …

- Is there a good chance of conviction
(will we win)?
- Is prosecution in the public interest?
See SA prosecution policy:
http://www.dpp.sa.gov.au/wp-
content/uploads/2015/03/DPP-Prosecution-
and-Policy-Guidelines.pdf
 Is the DPP independent of government?

DPP is established under the DPP

Act 1991 (SA).
Independence from
government/
executive ...

But is s/he independent?

 DPP Act 1991 (SA)

Section 9 DPP Act

(1) Subject to this section, the Director is
entirely independent of direction or control by
the Crown or any Minister or officer of the
Crown.
(2) The Attorney-General may, after
consultation with the Director, give directions
and furnish guidelines to the Director in relation
to the carrying out of his or her functions.
 Is the DPP independent of government?

R v Nemer (2003)
Mr Nemer fired a gun late at night
and the bullet hit a delivery driver
(Mr Williams) in the eye. He
pleaded guilty to ‘endangering life’
after a ‘charge bargain.’ Sulan J
determined a jail sentence was
appropriate, but suspended it with
a $100 bond. There was a public
outcry:
https://www.youtube.com/watch?v=2WUqDzVYAdU
 The Nemer case

Government directed the DPP (Mr Rofe) to appeal

the sentence. The [independent] Mr Rofe refused.
After all, he had agreed to the lesser charge.
The government wanted Mr Nemer to be
imprisoned. What could they do?
They asked the S-G to appeal to the CCA against
the inadequacy of the sentence.
Mr Nemer’s lawyers argued that that couldn’t be
done.
 Discretion constrained

CCA held: 2/1. The section in the Act that allows the
AG to “give directions and furnish guidelines” includes
directions in specific cases.
Doyle CJ was in dissent.
DPP’s decision not to appeal the sentence could be
overridden by the Solicitor-General (and now Chief
Justice, Chris Kourakis).
The DPP was effectively side-lined.
R v Nemer [2003] SASC 375
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2003/375.html?
stem=0&synonyms=0&query=title(R%20and%20Nemer%20)
.
 Nemer

The appeal court substituted a term of

imprisonment for Nemer (by lifting the
suspension).
Mr Nemer went
to jail.
In May 2004,
Mr Rofe
resigned.
 Nemer

Paul Nemer abandoned his university

studies and moved overseas.
 Discussion

Should the DPP prosecute all cases?

[what is the value of prosecutorial
discretion?]

Should the DPP be subject to such

specific directions? (argue for and
against)
Democracy vs independence
 Charge bargaining
(sometimes wrongly referred
to as plea bargaining)
 Charge bargaining

On the one hand

• Good for the state: gets things moving,
eliminates the possibility of the person
being exonerated for the more serious
charge. [Paul Nemer may have been
acquitted at trial of attempted murder]
• Good for the accused: guaranteed lesser
charge, potentially reduced sentence.
 Charge bargaining

On the other hand,

• a defendant with a possible defence
may be coerced into a guilty plea,
• victims are not always happy with the
lesser charge.
We do not do ‘plea’ bargains US-style.
2 recent HC cases (2014) remind us of
this fact …
 Charge not plea bargaining

Barbaro v R and Zirilli v R [2014] HCA 2

In each case the appellants pleaded guilty to
various drug importation offences under the
Criminal Code (Cth). The appellants had entered
into a ‘plea bargain’.
The sentencing judge imposed sentences outside
the prosecution’s agreed sentencing range.
To what extent is the sentencing court required to
have regard to the prosecution’s indicative
sentencing range?
 Charge not plea bargaining

Barbaro v R and Zirilli v R

Held: by majority, that it is neither the role nor the
duty of the prosecution to proffer some statement
of the bounds within which a sentence may be
imposed. It is for the sentencing judge alone to
decide what sentence will be imposed. Because
the prosecution’s submission as to an available
sentencing range is no more than a statement of
opinion, it was not unfair for the sentencing judge
to have refused to receive such a submission.
 Charge not plea bargaining

Discussion:
1. Do you agree with the Barbaro
decision?
2. Should we consider adopting the
US position where the judge is
involved in sentence indication?
Juries …
 The role of juries
Juries have been around 400 years.

But they have not always been independent

or as powerful as they are now!
 JURIES
Bushel’s case 1670
Two Quakers, William Penn and William
Mead, were arrested and charged with
unlawful assembly and violating the
Conventicle Act, which forbade religious
assemblies of more than five people outside
the auspices of the Church of England. The
jury found the two "guilty of speaking in
Gracechurch Street" but refused to find
them guilty of "unlawful assembly".
JURIES
 JURIES
Bushel’s case 1670
The judge was furious, and charged the
jury that they "shall not be dismissed until
we have a verdict that the court will
accept".
 JURIES
The jury changed the verdict to "guilty of
speaking to an assembly in Gracechurch
Street", whereupon the judge had them locked
up overnight without food, water or heat.
Finally, after two days, the jury returned a not
guilty verdict. The judge fined the jury for
returning a verdict contrary to their own findings
of fact.
Jury member Bushel refused to pay the fine.
 JURIES

Bushel petitioned the Court of Common

Pleas for a writ of habeas corpus.
Chief Justice Vaughan initially held that the
writ should not be granted, but was
overruled by the other justices.
Finally, Vaughan CJ ruled that a jury could
not be punished on account of any verdict it
returned. Independence!
 Jury can be very powerful

R v R: 1981
Woman killed her husband with an axe
upon learning that he had been sexually
abusing their daughters.
Appeal asked the CCA to think about
whether ‘provocation’ had to be immediate
Re-trial ordered. There was now a new
definition of provocation – immediacy no
longer required.
 Jury can be very powerful

R v R: 1981
With this new definition, a second jury found
the accused not guilty of murder and not
guilty of manslaughter.
She was released without penalty (other
than time in gaol between sentence and
appeal).
A seemingly impossible outcome. Exercise
of jury discretion?
Perverse verdict, jury nullification.
 Consistency?

Compare:
Jemma Edwards (2012)
http://www.theage.com.au/victoria/woman-jail
ed-seven-years-for-killing-violent-husband-20
120424-1xjeu.html
Osland v R
Heather Osland was jailed for 14 yrs for the
killing of her husband and was paroled in
2005.
 Consistency?

Compare the outcome of R v R.

There is a difficulty for the justice system to
ensure consistency when cases are
decided by different juries in different
courts.
 Jury power

Once a matter is in the jury’s hands,

and the trial is proceeding and it
becomes clear that the prosecution
case is collapsing, the jury itself must
still declare their verdict.

However, see the recent High Court

case of George Pell …
 Defendants
In a court, where should the defendant sit in
order to preserve the presumption of
innocence?
Next to his/her counsel?
http://www.abc.net.au/lateline/content/2014/s41
23345.htm
And research into the use of virtual courtrooms
https://www.westernsydney.edu.au/future-maker
s/issue-one/virtual-justice.html
Sentencing …
 Sentencing
Follows the plea of guilty or the finding of
guilt. Each year there are around 1,000
sentences passed in the superior courts.
Compare the horror of past executions
(from the Tyrannicide Brief, pp 324-5, 335 ff by
Geoffrey Robertson)
https://www.theguardian.com/books/2011/apr/23/jo
hn-cooke-my-hero-geoffrey-robertson
Sentencing
 Sentencing

Parliaments usually prescribe maximum

penalties for offences in legislation, not
usually minimum.
It is then up to the judge or magistrate
(depending upon the seriousness of the
offence) to determine the appropriate
sentence under that maximum.
 Australian sentencing policies

Sentencing principles are found in both:

1. the common law (judicial
pronouncements) – proportionality, parity,
etc.
2. legislation (State and federal – depending
on the source of the criminal law)
 Sentencing Act 2017 (SA) sets out (often
competing) aims of sentencing
Section 3—Primary sentencing purpose
The primary purpose for sentencing a defendant for an offence is to protect the
safety of the community (whether as individuals or in general).
Section 4—Secondary sentencing purposes
(1) The secondary purposes for sentencing a defendant for an offence are as
follows:
(a) to ensure that the defendant—
(i) is punished for the offending behaviour; and
(ii) is held accountable to the community for the offending behaviour;
(a) to publicly denounce the offending behaviour;
(b) to publicly recognise the harm done to the community and to any victim of
the offending behaviour;
(c) to deter the defendant and others in the community from committing
offences;
(d) to promote the rehabilitation of the defendant
 What are the aims of the exercise?

• Community safety – laudable aim, but how is it

achieved?
• Retribution: just ‘deserts’, limits excesses, but often
frustrates rehabilitative efforts
• Deterrence: designed to deter, but little evidence that
punitive approaches deter; and how do you know
what conduct, and how much, has been deterred?
See Bartels
http://www.theage.com.au/comment/tougher-laws-no-antidote-to-violence-201
60112-gm43yb.html
See SAC (Vic)
https://www.sentencingcouncil.vic.gov.au/publications/does-imprisonment-dete
 What are the aims of the exercise?

• Rehabilitation:
designed to reform, but
how is it best measured,
and how effective is it,
and how do you limit it
where there needs to be
a limit, and how do you
convince the public that it
is worth the effort?
 Aims cont’d

• Incapacitation (puts offenders out of action,

but short-lived)
• Restitution (helps repair the damage, but
allows the caprice of one’s ‘ability to
reimburse’ to feature in sentence)
• Denunciation (symbolic e.g. suspended
sentence, but the shame may frustrate
rehabilitation OR the lack of punitiveness may
frustrate retribution and leave victims angry)
 ‘Factors’
In achieving these aims, sentencing judge can take into
account a host of ‘factors’ relating to the offence and the
offender.
According to s.11, these must be considered, insofar as they
are relevant:
(a) the nature, circumstances and seriousness of the offence;
(b) the personal circumstances and vulnerability of any victim
of the offence whether because of the victim's age,
occupation, relationship to the defendant, disability or
otherwise;
(c) the extent of any injury, emotional harm, loss or damage
resulting from the offence or any significant risk or danger
created by the offence, including any risk to national security;
 ‘Factors’
(d) the defendant's character, general background and
offending history;
(e) the likelihood of the defendant re-offending;
(f) the defendant's age, and physical and mental condition
(including any cognitive impairment);
(g) the extent of the defendant's remorse for the offence,
having regard in particular as to whether—
(i) the defendant has provided evidence that the defendant
has accepted responsibility for the defendant's actions; and
(ii) the defendant has acknowledged any injury, loss or
damage caused by the defendant's actions, or voluntarily
made reparation for any such injury, loss or damage, or both;
(h) the defendant's prospects of rehabilitation.
 ‘You be the [sentencing] judge’

Sentencing Advisory Council of Victoria:

https://virtualjudge.sentencingcouncil.vic.gov.au/

NB the Victorian criminal law and sentencing regime

are slightly different to those of SA, but they operate on
the same principles.

Also Qld:
http://www.sentencingcouncil.qld.gov.au/judgeforyourself
 The sentencing task is thus not easy

Sentencers have to sentence a myriad of

personalities, in court for one of a myriad
of reasons, in circumstances which
change from case to case, to achieve a
broad range of often inconsistent
sentencing goals, from a limited range of
options, guided by case law and
legislation that is often contradictory, and
which changes from jurisdiction to
jurisdiction.
 Discussion

1. Should ‘life mean life’? Argue for and

against.

2. Should SA legislate to have the power to

say ‘never to be released’?

3. Are suspended sentences a ‘good thing’

or not?
 The sentencing task: Indigenous
Australians

R v Fernando (1992) 76 A Crim R 58

said that a sentencing judge should
recognise social disadvantage.
However, this has now been re-
considered first by the NSWCCA
Kennedy v R [2010] NSWCCA 260
and now …
 The sentencing task: Indigenous
Australians

Bugmy v R [2013] HCA 37

There is no warrant to take into account the
high rate of incarceration of Indigenous
peoples when sentencing an Aboriginal
offender. This is antithetical, said the Court, to
individualised justice.
[see Chris Charles’ article October 2014 Law Society Bulletin, 'Considering
Aboriginal Disadvantage in Sentencing Decisions' p 40)

Do you agree?
 Exercise: the sentencing task

You be the judge

Sentencing Council of Victoria
http://www.sentencingcouncil.vic.gov.au/
virtualjudge/
OR
http://www.sentencingcouncil.qld.gov.au/
judgeforyourself
 Imprisonment
A sentence that is still useful?
 Sentencing Act 2017 (SA)

S.10(2) Subject to this Act or any other Act, a court must not
impose a sentence of imprisonment on a defendant unless
the court decides that—
(a) the seriousness of the offence is such that the only
penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of
the community (whether as individuals or in general).

Gaol is a punishment of ‘last resort’

 Case for imprisonment generally

• Strong action has a deterrent effect.

• Symbolic function of the law.
Someone has finally taken
responsibility
• Public perception of state
ambivalence needs to be countered
• Victims need to be satisfied
 Case against

•Expensive
•Discriminatory
•Not as important a deterrent as the
likelihood of detection
•Has opportunity costs

Kleiman, M (2010) When Brute Force Fails – How to

have less crime and less punishment, Princeton:
PUP
 Non-custodial options

• suspended sentence
• fines
• parole & probationary bonds
• CSOs
• conditions imposed (e.g. to undertake a course or
rehabilitation program etc);
• home detention
• Intensive corrective orders
• work release
Reasons are found at website: www.courts.sa.gov.au
 Alternatives to prison: the suspended sentence

Keeps people out of gaol but

- Whom is it keeping out of gaol?
Menendez and Weatherburn 2014
http://apo.org.au/resource/effect-suspended-sentences-impri
sonment
For every 10 given, 3 people are added to
prison population who otherwise would not
have been there.
 Alternatives to prison: the fine

Keeps people out of gaol but

- punishment for failure to pay is gaol
- expensive to recover
- impacts harshest upon the poor
- burden felt by dependants
- it may lead to further offending in order to
pay the fine.
 Alternatives to prison: parole &
probation
Keep people out of gaol but unless there
are effective services that assist the
probationer or parolee to stay away from
criminal activity, recidivism is likely.
Parole is often unpopular. Callinan Review
recently recommended Victoria get rid of it
https://www.sbs.com.au/news/insight/tvepis
ode/parole
 Alternatives to prison: Community Service Orders
(CSOs)

CSOs are a valuable option but

• give the idea that service is a punishment
• may have a ‘net-widening’ effect (that is,
expanding the number of people who come under
state scrutiny)
• may not satisfy retributive public opinion
• are not incapacitative unless accompanied by
electronic monitoring (which is now widespread)
Hucklesby, A. (2011). ‘The working life of electronic monitoring officers’,
Criminology and Criminal Justice, 11(1): 59-76
 Is rehabilitation dead?

The 19th century ideal of rehabilitation took a

hammering in the late 20th century.
There is now good evidence of rehabilitation
program effectiveness, although the data
need to be gathered and disseminated better
in order to paint a true picture.
And it needs to be well funded.
 Rehabilitation

Andrew Day makes a strong case for the

bolstering of rehabilitative efforts in
Australia:
https://theconversation.com/crime-and-puni
shment-and-rehabilitation-a-smarter-appro
ach-41960
Appeals and retrials
 Appeals
CCA hears appeals from District Court and SC
Single judge SC hears appeals from the Magistrates
Court.
Conviction / sentence or both.
Usually to do with the admissibility of evidence or a
“miscarriage of justice”.
Can then set person free OR simply send it back for
re-trial.
Sentence is argued to be ‘manifestly excessive’ or
‘manifestly inadequate’.
 Law Reform (appeals)
Section 353A CLCA.
Statutory right of appeal (from 5/5/2013) if “fresh and
compelling evidence”
(1) The Full Court may hear a second or subsequent
appeal against conviction by a person convicted on
information if the Court is satisfied that there is fresh and
compelling evidence that should, in the interests of
justice, be considered on an appeal.
(2) A convicted person may only appeal under this section
with the permission of the Full Court.
Keogh (2014):
http://www.adelaidenow.com.au/news/south-australia/henry-keogh-murder-charge-will-
be-dropped-by-dpp/news-story/f792806c2234db530e803992a13f6141
 Law Reform (appeals)
Criminal Law Consolidation (Double
Jeopardy) Amendment Act 2008 (SA).
Sections 331-338 CLCA.
On 30 July 2008, South Australia introduced legislation to
scrap parts of its double jeopardy law, legalising retrials
for serious offences with "fresh and compelling" evidence,
or if the acquittal was tainted.
There have been no prosecutions under
these “fresh and compelling evidence”
reforms.
 Discussion
What would you change if given a chance?
1. Sentencing? A jury sentencing role?
2. A stronger place for victims in determining
questions of bail and sentence?
3. Police as prosecutors?
4. “Fresh and compelling” either for an
acquittal, or to set aside an acquittal and
launch a re-trial?
 Summary

•The criminal justice ‘system’ is a mixed bag.

•Discretion pervades the process – see eg
prosecutorial discretion.
•Sentencing is the most difficult task identified by
judges
•The alternatives designed to keep people out of
custody (and out of the courts) have their
dilemmas too.
•The role and efficacy of prisons have always been
controversial, yet we still rely upon them heavily.