Sentencing review 2015-2016

In a change from previous sentencing reviews, this review focuses principally on the activities of the sentencing advisory councils in Australia. Due to this focus and spatial constraints, certain recent developments will not be covered in this review but are worthy of further consideration. In particular, Western Australia has introduced a Bill to permit GPS tracking of serious offenders after the end of their sentence, expand the definition of “crime victims” to include immediate family members, and include psychological and psychiatric harm.1 The South Australian Government has introduced a draft Bill for comment which, if passed, would repeal the Criminal Law (Sentencing) Act 1988 (SA) and make the protection of the safety of the community the primary consideration in sentencing.2 In addition, Queensland is currently reviewing its parole regime,3 following the high-profile alleged murder of an elderly woman by a man released on parole only hours earlier.4 It should also be noted that, on 27 October 2016, the Australian Government announced that the Australian Law Reform Commission would inquire into “the factors leading to the over representation of Indigenous Australians in our prison system, and consider what reforms to the law could ameliorate this national tragedy”.5 The terms of reference for this inquiry will be subject to consultation with Indigenous Australians, State and Territory governments and the broader legal profession.

The first part of this review considers the evolution and recent activities of sentencing councils across Australia.6 As the discussion below highlights, there are established and active councils in New South Wales (NSW), Tasmania and, especially, Victoria, while the South Australian council is less active. The existence of the Queensland Council has been somewhat at the whim of the government of the day, having been established under the Bligh Labor Government, abolished by the Newman Liberal National Government and recently reinstated by the Labor Palaszczuk Government. The only jurisdictions without sentencing councils are the Australian Capital Territory (ACT), Northern Territory (NT) and Western Australia, although the latter is the only jurisdiction where there does not appear to have been any consideration of the possible introduction of a body of this nature.

The second part of this review focuses on another form of institutional response, namely Royal Commissions. There are currently two Royal Commissions appointed by the Australian Government, both of which relate to the criminal justice system and have particular implications for sentencing. The second part of this review examines the relevant work to date of the Royal Commission into Institutional Responses to Child Sexual Abuse, which was established in 2013, and the Royal Commission into the Child Protection and Youth Detention Systems of the Government of the Northern Territory, which commenced in August 2016 and held its first hearings in October 2016. This part also summarises the relevant sections of the report of the Victorian Royal Commission into Family Violence, which was established in February 2015 and completed its inquiry in March 2016.