



The law's untold story


Chris Maxwell

Sentencing judges strive... to do their best to arrive at a just answer.


PUBLIC debate on sentencing is vitally important. Issues of criminal responsibility and punishment are matters of great community concern. As judges we are accountable to the community for the decisions we make.

Many of you will recall the sentencing earlier this year of Arthur Freeman, who was convicted of murdering his daughter by throwing her off the West Gate Bridge. He was sentenced by Justice Coghlan, the head of the criminal division of the Supreme Court. As routinely happens in the Supreme Court now, an audio recording of the sentence was made available. Unusually, two of Melbourne's radio stations played the audio recording in full on their morning programs. The feedback was quite remarkable.

Hearing a judge explain all of the considerations which he had to weigh in the balance gave many people a new insight into sentencing. Talkback callers made comments such as: ''I had no idea that sentencing was such a difficult and complicated process.''

The point is a simple one. The closer you get to the sentencing process, and the more you understand about it, the better placed you are to make a judgment about it. Of course, you may still disagree with what the judge has done. But you have a much better idea of how the judge arrived at the result.

Sentencing is a painstaking, gut-wrenching process. As Chief Justice Warren has said, sentencing haunts judges: ''We all remember each person sentenced and the faces of the families pleading for mercy on one side and those on the other side pleading for due punishment.''

There is no ''right'' answer in any given case. Views will differ about what the appropriate sentence was. But sentencing judges strive, every day and in every court, to do their best to arrive at a just answer. And they do so, not with any sense of detachment from, or superiority over, the rest of the community, but with an acute sense that they are members of the community and that what they do is done on behalf of that community.

In a proportion of cases, the Court of Appeal decides that the sentencing judge was wrong. Sometimes we conclude that the sentence was too heavy and we reduce it; on other occasions, on an appeal by the Director ofPublic Prosecutions, we conclude that it was too lenient, and we increase it. It is a process of intensive scrutiny and quality control, which should give the Victorian community great confidence.

If we think that sentences for a particular offence are generally too low, we say so - as the court did, for example, in relation to ''glassing'', where serious injury is caused to a victim by being hit in the face with a glass or a bottle. Now, ''glassing means jail''.

Recent research by Dr Austin Lovegrove, of Melbourne University's Department of Criminology, shows that when members of our community are given a close-up view of sentencing in particular cases, they have a strong sense of justice. They understand that, as well as considering the nature and gravity of the crime and any aggravating factors, and the effect on the victim/s, sentencing must take into account mitigating circumstances relating to the perpetrator.

Four real cases were presented by County Court judges to members of the public in small groups, at workplaces across Melbourne and Victoria. The sample comprised 471 participants from 32 different workplaces, representing a balanced cross-section of workers (white collar/manual and gender).

All of the cases involved serious offending (armed robbery; multiple rapes at knife point; multiple stabbings; and a theft of $1 million worth of goods), and each of the offenders had relevant matters to advance in mitigation of penalty.

In each case the judge presented the facts of each offence (including the effects on the victim/s) and the personal circumstances, behaviour and character of each offender. The offender was portrayed as a real person and the participants were encouraged to treat the offender as someone whose future lay in their hands. The judges provided information on applicable sentencing principles and current sentencing practice.

Once each of the participants had written down their sentence for the case, the judge announced the actual sentence.

The results were startling. The sentences that the participants would have imposed were generally more lenient than the judges' sentences. As Dr Lovegrove says: ''Many people are not fully aware of their sense of justice, and are content to evaluate sentencing by means of the media. The fact is [that] when people are given detailed information about offenders and their offending, are encouraged to feel responsibility for real people, realise their responses require thought and some general knowledge about sentencing, then many will find personal mitigation to be an important element of punishment, even in some serious cases.''

This is the untold story. If the sentencing debate is to proceed on an informed basis, it must be told. Our community needs to know that their fellow citizens, in workplaces across Victoria, ''imposed sentence'' in cases of serious offending much as judges would do in the same circumstances.

One of the disadvantages of the focus on sentencing in public debate is that not enough attention is paid to the core work of the criminal justice system, which is the investigation and prosecution of serious crime, and the conduct of fair trials. The integrity of our trial process is beyond question.

Every person in Victoria can have confidence that, if he or she should face trial in this state, the trial will be conducted with absolute fairness and impartiality and independence. The 2007 Australian Survey of Social Attitudes showed that public confidence in the criminal courts was higher in Victoria than in any other state. This is truly cause for celebration.

This is an edited version of a speech by Justice Chris Maxwell, president, Court of Appeal, Supreme Court of Victoria, to the International Commission of Jurists Victoria Sentencing Forum last week.

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