Peter McClellan: Sentencing is a controversial topic. You often hear complaints that a sentence is too low, especially when the offender is guilty of a violent or sexual crime.

This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. In this podcast series, we will talk with a number of judges of different NSW courts who will discuss the statutory framework for sentencing and how judges go about their tasks.

We will also talk to prosecutors, defence counsel and discuss imprisonment and the parole system. We hope you will find the podcast interesting and informative.

Jim Minns: Sentencing Explained: the new podcast from the NSW Sentencing Council, will be available on all podcasting platforms in October.

Peter McClellan: Hello, welcome to the Sentencing Council podcast, “Sentencing explained”. My name is Peter McClellan, and I’m the chair of the Council.

This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Sentencing is a controversial topic. You often hear complaints that a sentence is too low, especially when the offender is guilty of a violent or sexual crime. Criticisms in newspapers are often expressed in strident language.

Aelish White: “Hopeless judges impose light sentences”. “Child killers given way too much mercy by our courts”. “Courts go soft on gun crimes”. “Lenient sentences are a travesty of justice”.

Peter McClellan: You never hear criticism of a sentence because it is too heavy.

The Sentencing Council was created in 2003. As we will learn in today's episode, it was a response to a heightened public concern about the sentences the judges were imposing.

In this podcast series we will talk with a number of judges of different NSW courts who will discuss the statutory framework for sentencing and how judges go about their tasks. We will also talk to prosecutors, defence counsel and discuss imprisonment and the parole system. We hope you will find the podcast interesting and informative.

Apart from creating the Sentencing Council, the parliament in 2003, responded to concerns about sentencing by making significant amendments to the statutory rules the judges are required to follow. The most significant of these changes was to provide guidance to judges as to the appropriate sentence by creating for relevant offences, a standard non-parole period.

In most cases, when an offender is sentenced to a term of imprisonment, the judge will provide the length of time which the offender must serve in prison. This is known as the non-parole period. The judge will also determine the time during which the offender must accept supervision after their release from prison. This is known as the parole period.

As part of the reforms in 2003 for some of the more serious offences, parliament identified the non-parole period for an offence in the mid-range of seriousness for that type of offence. This is known as the standard non-parole period.

It is a guidepost to judges to help them decide the appropriate sentence and non-parole period for individual offenders. Both the standard non-parole period and the maximum penalty are used by judges, when sentencing an offender.

At the same time as providing standard non-parole periods, parliament also created statutory lists of aggravating and mitigating factors which a judge must consider when deciding the appropriate sentence. We will learn today about the origin of these reforms. Later episodes of this podcast will discuss them in detail and how judges apply them when sentencing offenders.

The minister of the NSW government responsible for the reform was Bob Debus, who was then the Attorney General. Bob is with us today to talk about these issues and the part he played in the legislative reforms.

Welcome Bob.

Bob Debus: Good morning Peter.

Peter McClellan: Now Bob, you had a long period with ministerial responsibilities in New South Wales. Can you give us some understanding of the tasks that you performed as a minister?

Bob Debus:  Well, I had two periods within the NSW Parliament – 81 to 88 and 95 to 2007, and during that time I had a fairly substantial number of portfolios. But in that second period I was, for quite a long time, Minister for Corrections and Emergency Services but also Minister for Environment and Attorney General.

It was the combination of corrective services and Attorney General that brought me face-to-face with the kinds of circumstances that actually led to the decision to create the Sentencing Council.

Peter McClellan: You've written of those circumstances in a very informative paper which I think you called “The Devil's Triangle”. A captivating name, can you tell us what was happening in the community at the time that needed a response from government?

Bob Debus: Well, it is, I suppose, unsurprising that the exact circumstances, the political and social circumstances at the turn of the 20th century, are quite unlike those that we experience at the moment.

There were a number of very high-profile events in the world. The destruction of the World Trade Centre in New York by planes flown by terrorists, a number of very serious bombing events. One in Bali which killed, I believe over 70 Australian tourists, others at the Australian Embassy in Bali. There was a bomb attack perpetrated by Islamic terrorists in London, which killed Australians.

At the same time there were in Australia, a series of very high profile and terrible criminal events. In particular there was a series of pack rapes by some men known as the Skaf brothers. There were a number of other high-profile murders.

You will see that these events were often associated with people of Muslim background and therefore there was, within the community, much concern and perturbation which had something of a racial, religious context to it.

So, these were awful circumstances to have to deal with at a political level. At the same time we had had a gradual increase of crime throughout the 20th century and into the very early years of the present century that was in large part heroin-related. But it was the kind of crime that affected people day-to-day in their homes – lots of street crime, burglaries. So you had a general context in which popular and tabloid media could send itself into paroxysms of outrage, which in turn affected many people in the community.

There’s not much of that kind of feeling at all around the tabloid media these days. Occasionally there's a little bit of outrage expressed about this or that criminal action. But in those years, there was a frenzy.

It wasn't just the tabloid media either. The Sydney Morning Herald was intensely critical of the government at the time and of the court processes that were actually the consequence of those pack rapes that I mentioned.

And we in the Government of NSW knew in 2003 that the coming state election would actually be dominated by the perception of people in the public that the courts were not giving sentences that were severe enough for the crimes that were being committed in the community.

The idea that judges were soft on crime and, therefore, also that the government was soft on crime, was a tremendously powerful idea. It was politically unavoidable, and therefore something politically had to be done about it, if you weren’t to get a situation, where the then opposition would win government and as it was promising, introduce for instance, mandatory sentences.

So, you would have the attacks led by tabloid radio programmes supported by tabloid newspaper articles. And you would have parliamentary insistence that the criminal law should be made more punitive and that for instance crimes should be subject to mandatory sentencing.

So you had a situation where something had got to be done, or many of the presumptions that we had always previously made about the appropriate punishment under the civil law and appropriate freedom for judges to make decisions as they saw fit under the sentencing laws as we understood them, were all going to be overthrown.

That was the reality that I faced and that was the circumstance in which I introduced the rules concerning standard non-parole periods and announced that I would set up the Sentencing Council.

Peter McClellan: Can I then ask you before we get into the detail of that, what process did you go through in your department or otherwise when developing the idea of standard non-parole periods?

Bob Debus: It arose out of discussions between my staff, staff of the Attorney General's Department and a number of barristers proficient in the criminal law, that we sought to assist us in the process.

There was, in effect, a task force considering what might be done, and this is the point, what might be done to restore public confidence in the criminal law while at the same time maintaining the essential assumptions of the common law about appropriate approaches to the sentencing of people convicted of crimes.

In other words, we wanted to maintain judicial discretion, but we were faced with a political circumstance in which judicial discretion was widely mistrusted. We have a situation where in Australia, it’s generally the case that the rule of law is deeply respected and court decisions are accepted even if they're unpopular. But that's not a circumstance that can be entirely relied upon.

Public trust can be undermined, and it is undermined if you have a combination of some terrible crimes, some circumstances that arouse fear in the community like terrorist attacks and you put into that mix some very hysterical tabloid media behaviour.

That was what we got to deal with – somehow or other protect the traditional and appropriate ideas of the law and the discretion of judges from the demands that were being made.

Peter McClellan: Did any ideas that informed the outcome that you put in place, come from other jurisdictions, in particular, overseas?

Bob Debus: There was some consideration of these kinds of problems going on throughout the Anglo-Saxon world.

Well, again, one has to work a little hard to be able to reproduce an idea of the circumstances at the time, but in Britain and the United States, we had seen the rise of what is called law and order politics, and what we were experiencing in NSW was just another manifestation of this particular phenomena.

Margaret Thatcher in England invented law and order politics. She ran a campaign in the 1980s just saying, look, this country is going to pot and the reasons really are that we've got an out of control youth culture filled up with pop singers and people that somehow or other flaunt our traditional values and we’ve got crime that’s out of control and it's the fault of liberals and hippies and we've got to do something about and people in England rather agreed with her, enough anyway to elect her. This was a kind of rhetoric that was extremely hard to deal with.

I’ve been describing the situation in NSW, you know, at the turn of the century. That was the situation in Britain in the 1980s.

A big group of voters in the middle of the spectrum went along with the idea that society was going downhill and we had got to get far more vigorous in prosecuting and punishing crime.

So, you know, the only way that this politics could be dealt with in Britain was that a young Shadow Home Secretary by the name of Tony Blair invented an idea. He said well, we on the other side of politics will also be tough on crime, but we will be tough on the causes of crime.

And so, it was an attempt to bring back a more progressive idea which at least acknowledged that the causes of crime were economic and social. In reality, we saw far more toughness on crime than toughness on the causes of crime from Tony Blair.

Peter McClellan: Now, when you developed the idea of standard non-parole periods, did you receive support from the opposition to implement standard non-parole periods or did it require the matter to go to a political contest as it were?

Bob Debus: I don't recall there being particular criticism of the idea from the opposition. We were in the kind of political environment in which the opposition basically said that whatever the government did wasn't enough to curb the excesses of criminals in our community.

The legislation passed easily enough, but it was not especially supported by the opposition in my recollection, and indeed it must be said that during the election campaign that followed, the opposition actually put up billboards around Sydney, which said that the government was making excuses for criminals and it gave a list of all the mitigating factors that my legislation had said a judge could take into account when they were bringing down a sentence. And the mitigating factors were in fact just a kind of a rough codification of the criminal law as we understood it.

In other words, my legislation had been very careful to preserve judicial discretion, although it did put in some extra guideposts, as it were, for judges.

The mechanism through which we achieved that protection was to codify, or at least to list the mitigating factors that a judge could properly take into account. And this was not controversial with judges either. This was a list that everybody agreed about.

But nevertheless at a political level that was said to be Bob Carr’s excuses for letting criminals off with lenient sentences.

Peter McClellan: Political discussions are matters that you understand much better than I do Bob. Do we understand that when you introduced standard non-parole periods, at the same time when you speak of listing the mitigating factors and you listed the aggravating factors as well, that was section 21A, which was introduced as a package, as it were, in the legislation?

So you got standard non-parole periods and the list of aggravating and mitigating factors at the same time?

Bob Debus: Yes, we did. And this was all part and parcel of the idea of the mechanism, as it were, for preserving judicial discretion. It must be said also that the Sentencing Council was introduced at this time with the basic purpose also of ensuring that the public could have confidence in the working of the legal system.  

Peter McClellan: How did you see the Sentencing Council carrying out its task to maintain confidence in this area?

Bob Debus: I saw that the Sentencing Council could make recommendations about appropriate sentences and other aspects of the sentencing system that might be seen to be a little bit separated from politics. The idea was that there would be a great benefit to be able to separate out basic deliberations about the appropriate level of a sentence in any particular case from everyday politics. That was the hope, and I think that the hope was to some degree fulfilled.

Peter McClellan: And you provided, I think, that a retired judge would chair the Sentencing Council?

Bob Debus: It would be a retired judge and there would be a series of people within the membership of the Sentencing Council that had appropriate expertise and there would be representatives of the community as well.

Peter McClellan: In your time as Attorney, I assume you referred a number of matters to the Sentencing Council for consideration and report?

Bob Debus: Yes. The Sentencing Council had only been going for a relatively short time when I left the portfolio. But I had begun the process of referring specific questions to the Sentencing Council for resolution. Always, always in the hope and expectation that this detached consideration of these matters would lead to far better conclusions than a merely political resolution.

Peter McClellan: Now as always happens, of course, the courts had to construe and apply the legislation that you had carried through the Parliament, and I think there was a decision of the Court of Criminal Appeal in Way that looked at standard non-parole periods and explained how the courts saw their implementation.

Bob Debus: Yes, so the Way decision which was brought down by a very powerful bench of the Court of Criminal Appeal, as I recall, insisted that the legislation was asking for judges to go through a two-stage process. One in which they decided whether or not this was a case in which a standard non-parole period would apply and then a second process in which they worked out the relationship of the particular case to that benchmark. It was in fact a complicated procedure about which many judges in the trial court were far less than happy.

It was the case of Muldrock in the High Court some years later that established a kind of a different role for standard non-parole periods and for this legislation.

In its essence, that later Muldrock decision just said look, the standard non-parole period is a guidepost for a judge, just in the same way as the long established statutory maximum sentence provisions had been.

There are two guideposts now they said. The maximum sentence and the standard non-parole period. And they also pointed out, or also concluded that the central purpose, the key provision of my legislation was the one that said that sentencing judges must state fully, the reasons for arriving at any sentence that had been imposed.

They went further. They actually said that the reasons for the specification of non-parole periods, either higher or lower than the standard non-parole period, would assist in appellate review and that it would promote consistency in sentencing for those kinds of offences. And that is in fact what I most wanted to do – to promote consistency because that greatly lowers the opportunity for criticism, especially uninformed tabloid criticism of decisions.

It’s the kind of procedure that, like the Sentencing Council, can hopefully, raise public awareness in a constructive way about the whole sentencing process.

Peter McClellan: I think it's generally accepted that when you introduced the legislation and it first came to be utilised, the impact was to increase the sentences that judges were imposing when standard non-parole periods applied.

You probably don't remember, but I wrote the judgment in the Court of Criminal Appeal in Muldrock. Of course, I was overturned by the High Court. But I think it's also accepted that after Muldrock there may have been some lessening in the sentences that have been imposed.

Bob Debus: Yes. Obviously, this process that I was engaged in was a political one. The meaning of my paper “The Devil's Triangle” is that the person who is the Attorney General sits at the conjuncture of politics, the law, and the media. It's often a terrifically uncomfortable position to be in and that's the devil and you can't avoid it. 

I understand how it was that you made your judgment in Muldrock. But you will understand that I was also more than pleased when the High Court disagreed with you. And we were both fulfilling our roles, Peter.

But the outcome, the idea that the standard non-parole period should be a guidepost, just like the long established maximum sentence, I was in a situation where I had got to deal in the middle of that devil's triangle with the politics and the media and the law, and to try and find a way in which we could, on the one hand, maintain the integrity of the judicial sentencing process and then the other, deal with some perfectly horrible politics that were threatening to overwhelm our state at the time.

You know, upon long reflection, if I could have cast the legislation so that it was more obviously providing for the kind of arrangements that Muldrock established rather than the kind of arrangements that Way established, I’d have been happy.

Peter McClellan: Well, I think it would be generally accepted, certainly by judges, that you managed to solve a very difficult problem in a very effective way. But of course, it took time for the situation to resolve itself and Muldrock to become the accepted authority.

Can I turn finally to guideline judgments, did you play any part in the development of guideline judgments?

Bob Debus: Guideline judgments were, in all truth, an earlier attempt to deal with the kinds of problems that I've been talking about.

Law and order politics is a poisonous form of public political contest. It involves the deliberate generation of feelings of outrage in the community. Which are the opposite to rational deliberation about circumstances that must be dealt with in society.

Law and order politics is the enemy of judicial discretion and the consideration of the circumstances of individuals who have broken the law. And so, you've got to try and find ways to deal with law and order politics when it arises in a particularly virulent form.

It had been going on through the 90s really, and guideline judgments were an earlier attempt to try and deal with media attacks on the courts and on the legal profession.

And they had some considerable success. But in the frenzy of the early 2000s, they were not sufficient to deal with the with the circumstance that was indeed threatening to run out of control.

Peter McClellan: Yes, I think there's a limited number of guideline judgments, but some of them have proved to be of immense assistance to the judges.

Although there haven't been any guideline judgments now for some years and I would imagine you could be content that the reforms that you put in place really filled the void ultimately and hence the processes have settled down.

Bob Debus: Since the early 2000s, the rate of crime has been falling, precipitously in the case of some violent crimes, so you don't have the essential driving circumstances to generate really serious law and order politics. People in politics see less and less advantage in attempting to exploit them.

And law and order politics maybe manifest in various ways. The spreading of fear and irrationality on the basis of some actual real concrete problems that need to be solved. That's the problem and if those politics are allowed run out of control, they begin to break down the ordinary assumptions about the role of courts in our system of law.

They begin to taint public confidence in the legal system and if they're not dealt with, they can lead to most serious societal breakdown, I think.

Peter McClellan You have been listening to the first episode of the Sentencing Council podcast series. Next time we will talk with some members of the Council about the work the Council does.

Peter McClellan  Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan, and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today are two former members of the Sentencing Council. Howard Brown has been a victims advocate for many years, and will talk about his personal experience of crime and his work with victims, and as a member of the council.

Moira Magrath was for many years a community corrections officer, and will share with us some of her insights and experience in that field, and tell us of her time with the Council.

Peter McClellan Howard firstly to you, welcome. Can you tell us, how did you happen to become a member of the Sentencing Council?

Howard Brown I think one of the things we have to do is put the whole process in context. From the beginning of roughly 1998 through to 2000, there was a very strong move, we called it a victims’ movement where inconsistency in sentencing was being highlighted.

Law and order was becoming a constant election issue and people generally were getting quite agitated about the lack of transparency and the lack of clarity as to how certain decisions were being made, and so myself, Ken Marslew who was another foundation member and Martha from the homicide Victim Support Group, we went to the then Attorney Bob Debus with the support of Bob Carr and said what you need to do is you need to consult far more widely than you currently do. Why don't you set up some type of organisation which pools all those resources so that all the players involved actually get to have a say.

Bob Debus was a little hesitant to start with. But then I think he started to appreciate that, even though myself and Ken especially were somewhat rabid, we did actually have some realistic expectations and then all of a sudden, the government announced the setting up of the Sentencing Council under Alan Abadee and Jack Slattery.

Jack Slattery had so much wisdom and had sat for so long within the judicial system, and yet he was such a practical person, and he was a real fatherly figure. And so, it was very difficult for any of us who were a little overly vociferous to attack Jack because he spoke so logically and explained everything so beautifully.

Peter McClellan: I’m not sure I’ve heard of anyone wanting to attack Jack over anything.

Now your involvement with the whole issue of supporting victims and supporting victims starts, I think, with a personal tragedy?

Howard Brown It does. I lost a really good friend in 1988. Three days after my father died. My father died on Friday. Andrew was murdered the following Monday.

Andrew died protecting a young woman who was the victim of domestic violence. Because my father had died, I was not able to take this lass to work, and so I asked my friend Andrew to do it for me.

And while he was trying to take this young lady to work, he was attacked by the offender. He was shot three times in the chest. The victim rang me. I was first on scene and I actually had to give my friend CPR which was unsuccessful.

Took two years to find him and then when he was finally brought before the court, he was found not guilty of murder, but guilty of manslaughter on the grounds of diminished responsibility, received a sentence of six years with a minimum of four. That really annoyed me and that's what started my attention and my involvement in assisting other victims.

Because I was legally trained, I was never a lawyer, but I was legally trained. I had spent 6 1/2 years at the Solicitors Admission Board. And one of the things I first found out was that the average victim had no understanding of the law, and so I saw my job as being their advocate, which I've continued to do since 1988.

Peter McClellan Effectively full time?

Howard Brown Effectively full time and in fact for only eight years of my 33 years of being an advocate for victims, have I received any form of remuneration from government. So that the rest of the time I have I financed it myself.

Peter McClellan Moira you've got a slightly different background. Can you tell us a little bit about your story?

Moira Magrath Yes, well I had a career of 34 years working for corrective services. Started as a probation and parole officer as they were then called back in 1979 and through a series of promotions or what have you, ended up as the director of what was by then called Community Corrections on the mid North Coast.

And like most government departments, constant restructures and with the last one, I realised that financially, it was far better for me to take a voluntary redundancy, which I didn't really want to do from a personal point of view, but I took the redundancy and wasn't sure exactly what I was going to do from there on, except that it wasn't going to be nothing and I was a little disturbed that I had this 34 years of amassed experience in working with offenders trying to make a difference in people’s lives generally.

Having years of friends and others saying to me, how could you work with those people? And I would respond, how could you stand next to them in the supermarket queue? Because they're just people and like you they can change, and they can change the way that they're living their lives because it’s not necessarily that they're happy with living their lives the way they have been.

So, I had this 34 years of experience that I felt was just going to be wasted in a sense, if I didn't do something with it, and coincidentally, somebody drew my attention to a call for a community representative on the Sentencing Council. 

That's something I can do to contribute so I went for an interview and Paul McKnight, who's had quite a distinguished career in the sort of policy area in corrections, was on the panel. And also, Anthony Whealy.

So, I was a little bit awestruck and thought yes, going to have to start swimming really quickly because I'm way out of my depth here. And months later, I was offered the position.

I went to my first meeting, and I just looked around at the table and I was dumbfounded. There were people around the table for whom I had the greatest respect. But I didn't think at that stage that I would have really, anything significant to contribute, so it took me all of probably 10 minutes, to find my voice. And yes, but yeah it was pretty daunting company.

Peter McClellan And how long were you a member of the Council?

Moira Magrath I think that end of 2013/2014 through to May 2022.

Howard Brown Can I just interrupt there for a moment?

Moira Magrath What a surprise!

Howard Brown I would hope that you, after being at your first meeting of the Sentencing Council came to realise what I first realised when we attended the inaugural meeting, that in fact, even though there were people there such as directors of DPP and public defenders and judges and people of that type of stature and with that level of experience, that it was actually quite a cohesive group. I hope we did accept you as quickly as other people accepted me.

Moira Magrath Yes, I would say that was definitely the case and I was certainly encouraged to feel that I did have a significant contribution to make.

That you know, looking at it from 34 years of experience and I might say at this point I still have very strong connections with Corrective Services, as one of my children has followed in my footsteps, as it were, and I still have friends in the organisation so I'm still abreast of what's occurring in practice.

Peter McClellan Now the Sentencing Council operates by way of references from the Attorney General, you can't do its own, but going off and explore its own topics, it's dependent upon the reference coming.

Howard, you were there for the very first reference. What was that?

Howard Brown Well it was rather interesting because when we originally started, the big purpose was to try and develop some sort of process which would see consistency in sentencing because there was this move politically towards mandatory sentencing and so we had to try and find a way of delivering more consistent sentences.

But the really interesting thing is that when we all met collectively, we all decided that perhaps the best way of dealing with the problem was not so much looking at that aspect of it but better explaining structures of sentencing and looking at the possibility of, and this came quite out of left field, the abolition of very short-term prison sentences.

And then of course, Alan Abadee then had the difficulty that we didn't actually have a specific reference for that, and so he then had to go back to Bob Debus and say, listen, there's this consensus of opinion that if people understood the sentencing regime a little better, we could actually achieve something in relation to short sentences. And we'd like a reference in relation to that, and then it developed from there.

Peter McClellan So the concern was that short sentences weren't achieving an effective outcome?

Howard Brown That was the thing. When when we first got there, you need to appreciate that we had people like Nick Cowdrey who was the director of the DPP. We had Peter Zahra who was the New South Wales public defender and ironically, Peter Zahra had actually defended the killers of Ken Marslew’s son. And during that trial, which was well before the Sentencing Council, Ken was highly emotional and he, well not physically, but he abused Peter and said, how can you defend people like this?

So, the first meeting we thought was going to be a little tentative.

But by that time, Ken had actually come to understand the importance of proper representation and the need for offenders to be properly defended, and so he understood what Peter’s task was.

And so, there was a movement by people like Nick Cowdrey saying we're not going to be dictated to by politicians. You know, in relation to mandatory sentencing or the like.

And Peter Zahra clearly was opposed to mandatory sentencing because, as he said, it doesn't take into account the criminogenic needs of the accused.

But I think the thing that surprised them the most was that we as the victims’ advocates, we actually agreed with them and said one of the greatest problems we have in one of the greatest difficulties facing politicians is people do not understand how sentencing works. They don't understand how two murderers can appear before the court and one go to gaol for life and the other for six years.

Part of our job is to educate people and to explain how it works and then that way the people who understand the process can make the changes and we don't need to make it the politicians’ job.

Peter McClellan And how did the Council set about that process of education?

Howard Brown We were very fortunate that at the time and please, no disrespect to him, our executive … we basically said to them, we need you to go to people like BOCSAR - you know the Bureau of Crime Statistics and Research. And we were very fortunate when we were set up as the Sentencing Council because we had access to BOCSAR.

When the Sentencing Council was set up in Victoria, they didn't have any sort of statistical data, and so it became their function as well, and that made it a lot harder for the Victorian Sentencing Council.

But we asked our executive staff to get us the figures of those people who are going to gaol for less than two years and what the reoffending rates were and of course it was through the roof. People were going into gaol for three or four months. They were coming out and within six months they were back inside, and no one had addressed their issues.

But putting that statistical data together, because people thought this was perverse, that we would actually be recommending abolition of prison sentences.

And of course, when we did report to government, the government actually indicated that they didn't feel that politically they could sell it. And that's when we then had to move on to changing periodic detention. Getting rid of that, then advancing to community correction orders where there was a component of that sentence which dealt with the prisoner’s criminogenic needs.

So there was a process of perhaps counselling or their going to see a psychologist, being given an education programme because people failed to take into account that at the time when the Sentencing Council first met roughly 33% of the prison population were illiterate. They couldn't even complete a Centrelink form, and we said, well, we can address that without having to put them into gaol. And if they can fill out a Centrelink form, then they don't need to go and rob the local chemist because they're at least getting a Social Security payment.

Peter McClellan What you're describing sounds like a process of not quite attrition, but a process of changing the system by gradual steps is that is that how? How it should be seen?

Howard Brown Yes, that's very perceptive.

Because what we were actually envisioning was quite a radical change to the sentencing process, and because between, say, 1990 and 2000, there had been this huge move politically of law and order and hanging people from the yardarm for shoplifting.

The whole movement became so politically driven and not logically driven. And so, what we had to do as a Sentencing Council was not only to identify what the problems were, but to find a process which politicians would be satisfied that they could actually sell to the electorate.

And so it took a great deal of work and a great deal of statistical data to put the information together to say, this is why we say the system doesn't work.

And surely you want a person whose criminogenic needs are met, because then they're not going to reoffend, and if they're not going to reoffend, then you're not going to have another victim. And surely that's what we're aiming for.

Peter McClellan And Moira, I think you come into the Council later than the time of course that Howard started and by the time you came the changes he's talking about, had they been completed?

Moira Magrath It is interesting listening to Howard talking about it coming from the Sentencing Council perspective because there was a lot of movement among practitioners at the same time, internationally as well.

Peter McClellan Practitioners in?

Moira Magrath Community corrections officers and

Howard Brown Even legal aid.

Moira Magrath Yes, so I'm a life member of the New South Wales Probation and Parole Officers Association and a member of the national body equivalent.

There was a lot of research and I’m just remembering a paper written by now former Assistant Commissioner, Rosemary Caruana in 1998. There was, in the context of leading into a restructure and everybody who was applying for the position was going in and talking about circular #3 of 98 which was best practice in corrections shift that was happening internationally.

So we usually look at Canada as to what's happening there. We started looking at New Zealand because there was of really good work going on in New Zealand as well and it was around the same sorts of things.

It was around programmes and so instead of the offender coming in to see me in an interview room and I'm digging away, Peter, how's it going? What did you do on the weekend? Who did you knock around with? Were you drinking? See you next week. Which was more of what it was like when I started. It was the focus on supervision. There was always this supervision and guidance, sort of dichotomy and where you were on that continuum.

And that started to crystallise in my thinking and thinking of some of my colleagues into we'll actually start the journey, sort of setting out a road map of what your period under supervision is going to look like and how I, as an officer, facilitate that journey so we started talking about, you know, you go and your psychologist, your alcohol and other drug worker. But oh, you don't want to do that? Well, that's fine, we'll just write back to his Honour and tell him that you're not keen. Oh, you do want to do that now? So, we would sort of facilitate the journey.

Peter McClellan That recourse was working for many people?

Moira Magrath I do remember, you know there’s a hundred anecdotes, but I remember this guy when I was the officer in charge of the Windsor office some years ago. And he came into see me. He was no longer under supervision. And I said, what are you doing here mate? You're not back, are you?

No, no no. No, I'm not back, he said, but my brother is here. And I went, good, fine, we'll look after him and he said yeah well it won't be you, you *****. And I said really why? And he said I told him to get the other officer as his supervisor and not to have you. And I said, why is that? He said because you are so hard and I said, and yet you're not back. You're not back here. You haven't reoffended. You're not back. Light bulb moment. He said, maybe I will get him to get you. So once we started talking about the journey, yes, sometimes it was with the threat of – I’ll send the breach report. But sometimes you just have to get across the line and to engage and so we started talking about engaging with the offender and thinking about what the end of the plan would look like in terms of them not reoffending.

Peter McClellan So what you're saying as I understand it is that both the ideas coming from the Sentencing Council and the ideas amongst those who saw the need for change in corrections, were working in the same direction?

Moira Magrath Pretty much, I think they were operating in parallel and I think all the research internationally was saying you can't just put people in gaol, particularly for short sentences. If you put someone in gaol for a short sentence you don't have them long enough to do anything with them and you're not going to get them when they're released because they have a short, fixed sentence.

So if you gave somebody two months in gaol, but a year on parole afterwards, then you might be able to do something so in answer to your question, yes by the time I came in those relationships had been formed and were firmly in place.

So in answer to your question Peter, I think yes. By the time I came in that those relationships had been formed and were firmly in place so that a lot of those changes had happened. Probably the first decade of the 2000s was a period of great change in corrections.

Howard Brown Although we hadn't finessed with the, you know intensive correction orders and the community correction orders. We hadn't finessed those quite.

Peter McClellan Well, they're obviously in development?

Yes. I was going to ask you, you speak of the work that the Council was doing. There were in your time on the Council normally about 14 members?

Howard Brown Yes and it was fantastic. I mean, for instance, one of our reps was Larissa Behrendt, who I think I should give her her proper title these days, Professor Larissa Behrendt. Such a lovely person, highly educated, representative of the Indigenous community. Really respected by the Indigenous community and of course we recognise that Indigenous people were well and truly over represented in the prison population. And, regrettably, still are.

Moira Magrath And even more so in the case of Aboriginal women.

Howard Brown Yes. But Larissa had such wonderful insight and one of the things that has always impressed me about the Sentencing Council is that even though we are a disparate group of people, I think that of all the references we have done, there is only one where we didn't have a unanimous result.

Because we've all worked through the issues and we've developed a package with which everyone was happy and we felt that it was actually going to serve the community well.

Peter McClellan Well, I was going to ask you, how does this, in practical terms, how does the Council work? There's 14 members of the Council, but then there's a staff behind those 14 to prepare research material and gather information for members of the Council?

Howard Brown That's right, well, is that to be a member of the Sentencing Council, you literally attend half a day a month, and people go, this is a really soft job. And you go, yes except there's a week’s reading for every single meeting. 

Here on my little tablet, I've got all these little orange boxes. All represent, ‘a meeting’ where … and I remember every month we would get a white folder with over 300 pages of data and information and sentencing trends. We are wasting so much paper. Fortunately, we’re doing that all electronically. But the amount of reading because the executive staff do all the research. We've got to read it. We have to absorb it all.

And then we go OK, this is the problem I identify and someone else will say, yes well OK, as public defender, one of the things that I find difficult is this, this and this, and we go OK, so we need to factor that in. So it's a lot more than turning up for three hours a month and the Sentencing Council just wouldn't work without the executive staff.

And can I say, all our chairs, and I don’t wish this to sound patronising as it perhaps possibly does, all our chairs right from the very beginning have never admitted to how much bloody work they do pulling all the information together.

Because I know how much I read, and I know how much is put before you Peter, and this hasn’t changed. And I know it's almost a short straw being made the chair of the Sentencing Council.

Moira Magrath Fortunately, you and I don't have the qualifications.

Peter McClellan Can I ask you Moira? In your time on the Council you were involved in multiple enquiries. I actually have a list here of the reports that you were involved in.

Moira Magrath I hope it’s the same as my list.

Peter McClellan I’m not going to ask you that quite. Tell me, are there any reports that particularly stand out for you and the work that you did in your time on the Council?

Moira Magrath The domestic violence offenders, because, having dealt with domestic violence perpetrators. And it's the really it's the only offence type, that I can think of, that community corrections staff deal with victims as well because we do home visits.

Sorry, I still say we, I should say they.

So they're engaged with the family, they're doing collateral checks with, often the victim of the offence.

Community corrections staff go into the home. They see their home. They see the conditions. And I've worked with domestic violence offenders all through Western Sydney and all through the mid North Coast, because sometimes as a director you have to do the front line work. Because if you haven’t got the staff you haven’t go the staff. So that probably was one of the standouts for me.

The victim’s involvement in sentencing was also a bit of a standout too because it just comes at a whole different angle from where my professional practice was apart from domestic violence. Although corrective services was involved in launching restorative justice and I was peripherally involved in that at some stage.

Peter McClellan When you say that that issue came from a different perspective to the one that you've been working with professionally, all of your professional life, did you find it difficult to look at the issue from the other side?

Moira Magrath Well, it's not really the other side, it's more in a practice sense, it's very difficult to sit with an offender who has murdered someone, or sexually assaulted a child, or whatever they've done and dwell on the victim. To safeguard yourself emotionally you need to focus on the offender and the job that needs to be done by the offender and with the offender.

Peter McClellan Yeah, to reduce their offending behaviour.

Moira Magrath To prevent another victim, or to at least reduce the likelihood.

And I was in a situation at one point in my life where I was away on holidays. Funnily enough in Port Macquarie and at the resort at which we were staying, and most horrific thing happened in a child about the same age as my daughter was then, which was about 5, was snatched in the middle of the night from a room and assaulted and put back in the room and it was the most horrific offence, and I was on the spot. And if we had been assigned to that room, that could have been my daughter.

To then sit down with the next child sex offender and not think about that it was with quite a lot of will, so a community corrections officer can think about the victim, but not necessarily dwell on the victim.

So when we started talking about victims’ involvement in sentencing, that was just a different compartment for me, not so much a different side of the argument.

Peter McClellan And in looking into that different compartment, did you find it difficult to join in the other members of the Council in coming up with recommendations?

Moira Magrath No, I don't recall it as being difficult. I think that table has brilliant people sitting around it from all facets, not only the the defence and the prosecution. But you've also got the the academics who bring such clarity, sometimes to those discussions. And the former members of the judiciary.

I remember one member who particularly struggled with the fact that community corrections staff released people from their supervisory obligations prior to the end of their community corrections order. And that was always quite an issue, which I consistently think I said, Howard, it was underpinned by research that you don't keep people in the criminal justice system too long or you turn them into crooks. So I don't think we ever completely agreed on that subject.

Peter McClellan You both speak of the people who chaired the Council and others who provided specialist expertise, did you always feel that, notwithstanding that you both come from different aspects, that your voice was effectively heard in the Council deliberations?

Howard Brown I have never once felt that anything I said was ignored. I always felt that whoever was chairing gave every one of us a voice. Well, I thought, we were always embraced.

Moira Magrath Yes, I always felt that I was treated with the greatest respect. Whether the Chair agreed, or other people in the Council agreed with my view. Yes, I felt my voice was heard.

I think one of the struggles for me was the tension between leaning towards over regulation and achieving consistency in sentencing practice. When you came in as the Chair, and I forget what the discussion was about, I thought, this sounds like we're not going to lean in the over regulation area because I think if you over regulate, for instance sentencing …

Howard Brown It doesn't rule out the flexibility.

Moira Magrath … without any wriggle room to navigate, taking account of particular circumstances, then you lose a lot in the process and sentencing to me has to be a humane process. It takes account of all those factors and you can't do that with … You know you've got two shoplifters before you. Their circumstances are going to be entirely different. One’s possibly stealing the microwave for greed and the other one’s possibly stealing the butter for food. How do you treat them?

Peter McClellan That emphasises of course the significance of what Howard's said earlier about education and understanding the process. Because when you come to sentence, you have to consider the circumstances of the offender. But also there's a need for a sense of justice to be felt by the victim and beyond that by the general community. Which just underlines how complex the sentencing process is.

Howard Brown And can I say that I recently appeared before the State Parole Authority in relation to an offender who had a sentence which consisted of a non-parole period and a parole period.

But this offender, for whatever reason, has chosen not to follow the path of rehabilitation and has been offered a number of programmes and has just declined them.

But when I was addressing the State Parole Authority, I pointed out that under the Crimes (Sentencing Procedure) Act, we talk about the purposes of sentencing. And the purposes of sentencing being punishment and rehabilitation, and I said but it would be naive for us to think that the non-parole period is that proportion which is punishment and then the parole period is the portion for rehabilitation.

In the ideal circumstances, the moment a person goes into custody, they should be on that journey towards rehabilitation. Unfortunately, that falls to the prisoner to make the decision as to when that delineation takes place.

Peter McClellan Howard, I asked Moira what stands out in her mind as the reports that she was involved in. Are there any that stand out particularly for you?

Howard Brown I think the very fact that we were able to achieve a situation where we removed periodic detention which was clearly not working and moved to intensive correction orders and community correction orders and providing a better way of dealing with people’s offending behaviour.

I think that that is a quite stark example as to the benefits of the Sentencing Council because you are not only addressing the needs of victims, you are addressing the needs of offenders, and what you are achieving in that process is making the community safe. And if that is what you put on your shingle, I think you've done a pretty good job.

Peter McClellan Both of you, of course, had long careers in your respective professions, in your respective fields. I guess along that journey there'd be many occasions where the outcome was not what you would have preferred to see. But I assume also that on many occasions the outcomes have been very rewarding?

Howard Brown Oh well, when I first came to visit victims’ advocacy, I think I was typical of a 33 year old male. I was nowhere near as well educated as I thought I was and I thought I understood the world.

And then when I lost my mate and saw how the legal system treated that whole process, it made me angry and I then realised that that anger could be one of two things. It could be dangerous and destructive, or I could turn it around and make a difference and I decided not to allow it to be destructive and to turn it into an advantage.

And so over that last 34 years I have assisted so many people who have lost children to homicide. Who have lost loved ones in the most appalling of motor vehicle accidents. I've assisted families through the most appalling of sexual assault and constant institutionalised abuse. And I get Christmas cards from those people, and they say thank you. You can't put a price on that.

Peter McClellan Moira, what about you?

Moira Magrath I've always said that you know, success in community corrections is a difficult thing to measure. There was a Professor Todd Clear, many, many years ago I went to one of his presentations. He was from the States and I can’t remember which university and he would talk about running a program. This would have been during the 90s when we were starting thinking this way about running programs.

And he would talk about, you know, show me your results from your program in terms of reoffending, in terms of attendance, even in the program and he said, oh, you've got, you know a 35% result on that, you know, positive result on that program. Oh yeah, not interested. Show me one where you've got a 10% result because that means that you're really dealing with the hard edge stuff.

So how you measure what's a success? Christmas cards, those offenders who ring you years later and say, do you remember you said, and you go, oh yes, sure do Peter 'cause it sounds like something I would have said, and they go, well that made the difference.

One offender in particular springs to mind who had been through, she was really institutionalised. She'd been through juvenile detention as a teenager. She wasn't much more than a teenager when I first met her. She was getting picked up for drive whilst disqualified every other day.

She rang me years later and said, G’day, I've got a job. Like wow that's great. Because we had talked about what was realistic and what was unrealistic. Where are you working? She said Wally’s Wreckers. Perfect, absolutely perfect! She said, you know what else, I got my licence.

So those are the sorts of things that I count as a success.

Peter McClellan And from the perspective of both of you, is the system working now better than it was when you started in your careers, and when you started with the Sentencing Council? Are we seeing positive change that’s leading to good outcomes?

Howard Brown As far as I'm concerned, when I go back and I look at, for instance, the law on diminished responsibility where the offender in my case received a substantially minimised sentence because of that defence and that defence is no longer available in that form.

But the way we deal with criminal matters today is far more efficient. It is far more equitable than it was when I first agitated for the rights of victims and the recognition of victims in that process is absolutely fantastic.

Peter McClellan Moira, what about you?

Moira Magrath I don't think we've got anywhere near to where we need to get to with managing indigenous offenders. I was just talking with one of my children, the one who's followed my footsteps, just last night about, just come back from Africa and we were talking about education and the impact of education and different ways of looking at education.

And I'm not just talking about academic, but the whole person, which sort of led us to imagine if we could do this sort of thing and build this sort of an institution school in Brewarrina or Bowraville or Kempsey or Bellbrook and we really focused on melding the cultures. And using the best of both cultures. We would hopefully then reduce the amount of indigenous offending if we could do that and it's not about the criminal justice system on its own.

Health, education, all the sort of “close the gap” issues and we still haven't got anywhere near a holistic approach to managing indigenous offenders because we're not dealing with the other stuff first.

So having said which, I think during sort of the period 2000 to 2013 when I left I saw massive leaps and bounds that we were going ahead in terms of recognising that you need to fund things properly so when the Drug court I think I mentioned this to you before, when the Drug Court was opening and I was the area manager at Parramatta at that stage and they were talking about it being Parramatta, I was driving to work hearing this on the news for the first time. And going, yeah, well, I guess we know who's going to get stuck with dealing with all that.

So I think there's been a recognition that if you're going to introduce change, you need to support it properly. Properly resourced.

Got to be properly resourced and Corrective Services and I’d probably credit former Commissioner Peter Severin with achieving it. The proper resourcing, recognising the talent within and enabling and facilitating that talent to develop the sorts of things that we're talking about now.

Peter McClellan Well it would interest you to know that we're going to interview Peter Severin later in this series, and he can talk about the things that he introduced into the system.

Howard Brown Peter, can I say that even though I can die being satisfied that I've had an impact on the criminal legal system over the last 30 odd years.

But if we have learned anything in the last two years, during COVID, one of the things that we have to learn is that we can be quite smug about what we have achieved, but things change, and they change daily, and sometimes they change rapidly and you need an institution like the Sentencing Council to identify those changes and adapt to them to allow the criminal legal system to continue to develop because it is a constant developing institution and it needs that type of impact because without it we don't have proper balance.

Peter McClellan Thank you and can I thank you both for joining us this morning for this fascinating discussion.

Moira Magrath Thank you for the opportunity.

Peter McClellan Everyone thanks you for the work that you did for the Sentencing Council, but more importantly, I suppose for the work that you've both done throughout your professional lives. Thank you indeed.

Howard Brown Thanks Peter, it's been great.

Moira Magrath Thanks Peter.

Peter McClellan You have been listening to Howard Brown and Moira Magrath, who are former members of the Sentencing Council. This podcast, Sentencing Explained is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council are available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.

Peter McClellan Hello and welcome again to the Sentencing Council’s podcast, Sentencing Explained. My name is Peter McClellan, and I am the Chair of the Council. This podcast was recorded on the lands of the gadigal people of the eora nation. We pay our respects to their elders past and present, and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today, is Sally Dowling, the NSW Director of Public Prosecutions. Sally has had a lengthy career as a barrister and prosecutor before taking up her current role. It is not often you get to hear about the director speak about the role of prosecutors, and we are grateful that she has agreed to talk with us today.

Welcome, Sally.

Sally Dowling Thank you Peter. It's great to be here.

Peter McClellan Sally, first of all, I want to just ask you a little bit about your job. Can you help us to understand what your role involves and how you go about, completing your tasks? 

Sally Dowling Sure, the Director of Public Prosecutions is a statutory role and I'm appointed under the Director of Public Prosecutions Act. I'm the head of the Office of the Director of Public Prosecutions, which is the independent prosecuting authority for serious offences in New South Wales.

As the director, I'm responsible for instituting and maintaining all serious prosecutions in New South Wales. Whether they proceed to sentence or proceed to trial and if there's a conviction, to sentence after trial.

Peter McClellan Now I think your office has both barristers and solicitors, if I can put it that way, under your direction, is that right?

Sally Dowling That's right, it's an unusual setup that we have here in New South Wales and it's virtually unique across the common law world. We have 1000 staff. We have 750 solicitors and 100 Crown Prosecutors who are barristers, who are appointed under statutory appointment process under the Crown Prosecutors Act, but they act exclusively as Crown Prosecutors and appear on my behalf in the courts of New South Wales.

Peter McClellan Now, just to be sure that everyone understands, I don't think your people do any primary investigation work. That's all done by the police or others. Is that right?

Sally Dowling That's correct, the ODPP has no investigative function. We receive referrals from the police. Police are the charging authority for most of the offences which we prosecute, but we also prosecute matters that are charged by the ICAC and other regulatory bodies who have a criminal offence charging function.

From time to time there is the need for further investigations to take place after charging and we refer those back to the investigating authorities.

We also receive referrals from the Coroner's Court where the coroner is satisfied that there is evidence that would establish that a homicide has taken place to the criminal standard. And then we work with police to conduct any further investigations that are required.

Peter McClellan  And do you have the authority to terminate a prosecution? Is that part of your role?

Sally Dowling Yes, as director I have the authority both to lay charges ex officio if it becomes apparent that a further charge is required and also to terminate proceedings and direct no further proceedings.

Peter McClellan Now, you said that you're responsible for the prosecution of serious crimes. Can you just help us to understand what falls into this serious category?

Sally Dowling Generally, there two types of offence in New South Wales, those that are prosecuted summarily in the Local Court and those that are proceeded with on indictment and proceed to the District Court or the Supreme Court. In broad terms, the more serious the offence, the more likely it is to be prosecuted on indictment in either the District Court or the Supreme Court.

There are some offences that can be dealt with either summarily or by way of indictment, and there's a process of election which is conducted by the police in the first instance and sometimes by my office as well.

Peter McClellan Right, so the police might decide it should go on indictment, but you have the power to say no, it should go summarily.

Sally Dowling Yes, that’s right.

Peter McClellan Well then our primary purpose in this podcast is to talk about sentencing but first of all we should establish the ground rules.

Your prosecutors would obviously prosecute on indictment in the District Court or the Supreme Court, where trials would mostly be conducted with a jury. Would that be right?

Sally Dowling That's right, although there is the ability for the court to determine that a trial might proceed by way of judge alone. That application can be made on the motion of the court or the parties.

And the Crown no longer has the ability to veto that decision. That's a decision that lies in the hands of the trial judge.

Peter McClellan So let's assume we've got a jury trial, and your prosecutor prosecutes and obtains or persuades the jury to convict and then it falls for the judge to sentence.

What’s the role of the prosecutor, once the jury has returned a guilty verdict, in assisting the judge with respect to sentence?

Sally Dowling The principal function of the prosecutor at that stage of the proceedings is to assist the judge to make the factual findings necessary to constitute the foundation of the sentencing process.

As your listeners are probably aware, a critical part of the sentencing process is working out how serious the particular offence is as an example of that type of offence. For example, if it's a driving case causing death, it’s important that the judge gauges the seriousness of that instance of dangerous driving.

So the prosecutor will make submissions as to what the appropriate facts are to be found, and then we’ll make submissions addressing the objective seriousness of that offence, and then we’ll make submissions on the subjective circumstances of the offender, where they are known to the prosecutor.

Peter McClellan The subjective factors. Can you just help us to understand what falls into that bracket?

Sally Dowling The two pillars of sentencing are the objective seriousness of the offence and the subjective circumstances of the offender and they need to be both taken into account in an instinctive synthesis manner by the sentencing judge.

So the subjective case of the offender will be their personal background, the reason that they committed the offence perhaps, whether they have a mental illness, whether they have a substance abuse disorder, the motivation that they have for offending in this way, their criminal history, whether they were on bail or on parole at the time that they committed the offence and matters of that kind.

Peter McClellan So the prosecutors address the judge in relation to those issues.

Does the prosecutor have any role in suggesting to the judge the penalty that the court should impose?

Sally Dowling No, in fact there’s High Court authority that’s an inappropriate submission for a prosecutor to make.

The prosecutor will inform the court of the relevant maximum penalty, and if there is a standard non-parole period, what that is and will assist the court with the provision of information relevant to the sentencing exercise, including relevant authorities and examples of previous sentences that have been imposed in similar cases.

However, the prosecutor will not suggest a particular number if it’s a custodial sentence.

Peter McClellan Can the prosecutor suggest that the sentence should be a severe one, for example or should be a light one?

Sally Dowling Not in those terms. However, the prosecutor may make a submission that says this, for example, this is a very serious example of an offence of its kind. The maximum penalty is life, in this case.

In other cases, the sentence that's been imposed has been, for example, 20 years. And we would say that this is a more serious example of this offence than those previous cases and then leave it to the judge to work out.

Peter McClellan Now there are of course or various alternatives when sentencing offenders, some of which don’t involve custodial terms.

Now, given that you’re prosecuting the more serious offences, I assume that in many cases where you are prosecuting, the result will be a term of imprisonment. But is it open to the prosecutor to suggest some other alternatives should be adopted?

Sally Dowling Yes, prosecutors have a very broad discretion as to the submissions that they are able to make, and I don’t seek to direct prosecutors in relation to the submissions they make in individual cases.

In every case section 5 of the Crimes Sentencing Procedure Act applies.

A court must not sentence an offender to imprisonment unless the court is satisfied that no penalty other than imprisonment is appropriate. And on occasion, the prosecutor will concede that that section 5 threshold has not been passed.

Peter McClellan Well, that's in a capsule of  what might happen if there's been a trial with a jury. Now there are many cases where the offender once charged will plead guilty and comes before a court just for sentence.

What’s the role of the prosecutor in those circumstances?

Sally Dowling It's similar to the role that they play after trial. The first step in the sentencing exercise is that factual finding process, which I referred to before. Very often after a plea of guilty, whether or not that is preceded by a plea negotiation process, frequently there will be what's called a statement of agreed facts where the offender and the prosecutor agree on a version of the facts to be given to the sentencing judge to assist sentencing judge in finding the facts.

That process of settling the agreed facts is a principled process and must be based on the evidence that is available to the prosecutor. It's not a matter of generating a fictional story that suits either party. In the majority of sentence matters, we have agreed facts either in that will cover all of the facts of the offending, or a large part of them.

If agreement cannot be reached between the prosecutor and the offender, then we will have a disputed facts hearing, which is like a mini trial where the judge will be required to work out what happened in relation to either a small part of the offence or a large part.

Peter McClellan Are they common or rare?

Sally Dowling They're regular, but we try to negotiate the facts for the obvious reason that it saves a lot of court time.

Peter McClellan Saves judge time.

Sally Dowling A lot of judge time and it's one of the benefits of a plea of guilty.

Peter McClellan And then having established the facts, I assume a written document is tendered to the judge.

Sally Dowling That's correct.

Peter McClellan And the judge is then able to sentence in accordance with those agreed facts.

Sally Dowling That's right, and it's important that that document is in fact adopted by the offender and signed by the prosecutor and the offender and where the offender is legally represented, by their legal representative. Because on occasion, people do seek to withdraw their plea.

Peter McClellan And that no doubt causes all sorts of problems for the system if that happens.

Sally Dowling It does and then we go into an application for withdrawal of plea which is quite a complex application.

Peter McClellan Well, we won't go down that path, but having provided the judge with the facts, then I assume the role of the prosecutor, with respect to the ultimate sentence, is the same as following a trial?

Sally Dowling That's right. If the offender goes into evidence or leads evidence in their case, for example, frequently there is psychological or psychiatric evidence led by the offender as to the state of mind that they had at the time of the offending. Any mental illness or other mental health problem they may be labouring under at the time of sentencing.

Where that evidence is led, the prosecutor may choose to cross examine those witnesses, and so        that process may be engaged in at a sentence hearing as well.

Peter McClellan In times past, I think it's not uncommon for the offender to give evidence at the sentencing hearing. That's fallen away in recent times, has it?

Sally Dowling It's relatively uncommon for offenders to give evidence. Often an account can be provided to the court through the psychologist or the psychiatrist or even the pre-sentence report author.

And sometimes offenders will write a letter to the court in which they express their remorse and give an account of themselves.

There's always the risk for the offender if they go into evidence that they will be cross examined by the prosecutor more broadly and that they could, in fact       say things that may not be advantageous for their case.

Peter McClellan Now you're the Director of Public Prosecutions now, but I assume your professional journey has involved you in many cases, both as a prosecutor and defender. Is that right?

Sally Dowling Yes, I in fact started life as a commercial lawyer and I spent five years at the Bar doing commercial and equity work. I was appointed as a Crown Prosecutor in 2002 and I spent 16 years as a Crown Prosecutor.

Twelve years were spent doing trials in the District Court and in the Supreme Court and then I moved into the appeals unit at the ODPP. So the Office of the Director of Public Prosecutions has a dedicated appellate team with about 8 to 10 Crown prosecutors in it and the balance of our prosecutors are doing trial work.

I then went back to the private bar in 2019, where I did prosecution and defence work.

Peter McClellan What attracted you to criminal law as opposed to the civil law where you started.  What provoked the change?

Sally Dowling It was rather serendipitous. I had a friend who was a Crown Prosecutor who suggested that I should interview and I was interested in a challenge. I'd also had the first of my children at that point in time and I was actually offered the first role as a part time Crown prosecutor which suited me for my work life balance, so I actually was part time for 14 years. And then went full time when my kids were      a little bit older.

Peter McClellan I assume both when you were at the bar privately and also as a prosecutor, many times you've addressed on sentence following a trial and also after a plea of guilty?

Sally Dowling Yes, that's the case, and I've also appeared in many, many sentence appeals in the Court of Criminal Appeal.

Peter McClellan Can I talk to you now about the important component of the criminal law, perhaps it's become more important in recent years than it once was.

Prosecutions used to be seen as the state prosecuting an offence against the state. And the role of the victim in the crime was not emphasised in a way which it perhaps is today.

Can you help us to understand that part of the criminal justice system?

Sally Dowling Sure, look it remains the case that the prosecutor appears on behalf of the state.  And the victims of crime, whilst extremely important people in the criminal justice process and in the sentencing process, are not parties.

So the overriding duty of the prosecutor is to present the case fairly, both on behalf of the state of New South Wales, but also bearing in mind the obligation of fairness to the accused or the offender and the obligation of candour to the court.

So previously, victims of crime or complaints had a lesser role to play, but over the last few decades there is increasing and an important recognition of the fact that they have a critical role to play in the sentencing process.

And the introduction of victim impact statements and the ability of the victim to be heard on sentence in presentation of the victim impact statement has been a very important step towards recognising the role of the victim in sentencing and the importance of having their voice heard.

Peter McClellan What's the role of the prosecutor then in relation to the victim’s impact statement?

Sally Dowling There are fairly strict rules about what can and can't go into a victim impact statement.  

So when we're preparing a matter to sentence, my prosecutors will ask the victim whether they would like to make a victim impact statement and will assist them to draft that in a way that it doesn't infringe the rules about what's admissible.

So we will help the victim write that statement always giving the victim primary agency in that process. We will then ask the victim or the complainant whether they would like to come and read that out in person or present their victim impact statement in person.

Very frequently they will want to do that. Sometimes they will feel too distressed or not want to be involved, in which case we will tender the statement.

Peter McClellan Are others, relatives allowed to read the statement for the victim?

Sally Dowling Yes they are. And in homicide cases the family of the deceased, are now able to give their victim statements.

Peter McClellan Yes, so you might get multiple statements in a homicide.

Sally Dowling Yes.

Peter McClellan And if there's more than one victim in relation to a particular crime, I assume each of those persons can give a statement.

Sally Dowling That's correct.

Peter McClellan You also, I think, have a role in supporting victims separate from helping them provide a victim impact statement?

Sally Dowling We do.

Peter McClellan What's that role?

Sally Dowling It's a really  important part of our role. We have a witness assistance service in-house at the Office of the Director of Public Prosecutions and they are highly trained social workers who have specialist expertise in supporting victims throughout the criminal justice process.

So once we get a matter from police, we will assign a witness assistance officer to that matter and they will meet and work with the victim of crime and the victim's family in order to support them through the process. They'll keep them company at court. They'll help explain the court process to them. They will be involved in the drafting of the of the victim impact statement as appropriate and they will be there at sentence to help support them.

Peter McClellan And once the proceedings have finished, do you continue to have any role with the victim, or does that bring to an end your involvement with the victim?

Sally Dowling That brings to an end to our formal involvement.

Necessarily being involved with victims in criminal matters often means that you  have a very long-term relationship with those people, and certainly I'm still in contact with a lot of the victims and their families from the prosecutions that I've appeared in throughout the years.

Peter McClellan That'd be going back sometime?

Sally Dowling Yes.

Peter McClellan The next issue I suppose we need to talk about is the capacity of the Crown to dispute the sentence which a judge might have imposed.

I take it from time to time a judge will hand down a sentence which your office, and ultimately you, think maybe too light? What role does the Crown through you as the DPP have to play if that's the case?

Sally Dowling In limited circumstances, the Crown will appeal a sentence if it appears that there's been an error in the delivery of the sentence or in the reasons for sentence.

And even if there hasn't been what we call a clear error, it may be that we feel that the sentence is just too short for the offending in question, and in that case we will appeal to the Court of Criminal Appeal to have that sentence set aside and to have the offender resentenced by the Court of Criminal Appeal.

The High Court has repeatedly said that Crown appeals should be rare and should be generally brought to correct errors made in sentencing processes in the lower courts for the purpose of providing guidance to the lower courts.

Peter McClellan I think that issue was originally the subject of some controversy as between New South Wales and the High Court. But that was settled back I think in the 50s or 60s?

Sally Dowling That's right. Since then, the consistent message from the High Court has been that there should be a high degree of restraint on the part of the Director of Public Prosecutions in seeking to have sentences increased.

Peter McClellan So what's the process then in your office? An individual prosecutor goes to court and  the judge sentences the offender and the prosecutor thinks that might be too low or significantly too low. How does your office function then to work out whether or not it should be taken to the Court of Criminal Appeal?

Sally Dowling  So the rules of the Court of Criminal Appeal now require that any Crown appeal be brought within 28 days of the sentence being handed down. So that's a fairly short time frame.

A prosecutor will appear on sentence. The sentence will be handed down. If the prosecutor considers that sentence to be manifestly inadequate and/or to be affected by serious error, then he or she will prepare a report to director’s chambers and that will come up. I've got about 10 solicitors who work in my chambers. That report will be considered by one of my chambers’ solicitors who will then refer it to me or one of my deputy directors to direct an appeal.

Peter McClellan So that you have 10 solicitors or thereabouts working directly to you?

Sally Dowling Yes.

Peter McClellan Then you've got some deputies working directly to you as well. How many of those, do you have?

Sally Dowling I've got three deputy directors.

Peter McClellan Right, and do they have authority on occasion delegated by you to make that decision?

Sally Dowling They do.

Peter McClellan Or does it always have to land on your table every time?

Sally Dowling No. The three deputy directors have each got delegated authority to direct Crown appeals.

Peter McClellan Right and I should have asked you this earlier, but do you actually go to court yourself now or does your role confine you to the desk, as it were?

Sally Dowling I don't go to court as much as I would like to, but I do have a High Court practice and I appear on occasion in the Court of Criminal Appeal.

Peter McClellan And what about your deputies? Do they regularly appear?

Sally Dowling Similarly, they also appear in the  CCA and in the High Court.

Peter McClellan And so when you go to court to argue the appeal, it's essential I assume, that you can point to error as opposed to just saying the sentence is too light.  Is that the way it works?

Sally Dowling There are two types of appeals.

One that pleads patent error, which is actual error in the reasoning and the other type of appeal that that pleads latent error, which is really the sentence is just too lenient in for this offender and this offending and sometimes it's a combination of both of those. But in every case, the sentence has to be too low.

So a notice of appeal is filed and it will identify the error if there is specific error being relied upon and the Crown will prepare written submissions in support of that appeal, which are then filed and served on the offender. And the offender will put on their written submissions, and there'll       be an oral hearing in the Court of Criminal Appeal.

Peter McClellan And after which they'll be a judgment from the court. If the Crown still thinks there's a problem with the sentence, can you take it to the High Court?

Sally Dowling Yes, very infrequently the Crown will or can appeal from a decision of the Court of Criminal Appeal to the High Court. Again, the principles of restraint are critical, but on occasion the Crown has applied to the High Court in sentencing matters.

Peter McClellan Now can I then ask you a little bit  more about your own career? You told us of the years that you were involved as prosecutor and we talked about many trials, but I take it you've been involved in many difficult trials. And many where a serious crime has been committed. Perhaps someone’s been killed or someone’s being seriously hurt. And that would be true of all your prosecutors from time to time. They'd be involved with really serious cases.

Are you careful to care for the health of your prosecutors who have to confront these issues in their daily work lives?

Sally Dowling Absolutely. It's a very significant consideration in the way we manage the Office of the DPP. Vicarious trauma amongst prosecutors is a very real danger. There's a recent High Court decision arising from the prosecution practice in Victoria.

So we have a range of initiatives to care for our prosecutors to ensure that that type of trauma is minimised. They range from the way we manage our briefs, for example, we don't have distressing videos routinely provided to prosecutors. They are kept in a separate area and they're only viewed if necessary. We don't reproduce distressing autopsy photos in all of our briefs. We certainly don't let our prosecutors watch child pornography in matters of that kind. So we limit the primary trauma as far as we possibly can.

I make sure that prosecutors have a range of matters briefed to them so that they're not relentlessly doing homicides or shaken baby cases or child sexual assaults and try to mix it up and regularly brief them in matters that don't have a physical victim. For example, like fraud matter or drug supply matter so that they get some time out from the often very distressing personal nature of maintaining a relationship with the victim or victim’s family in a trial or a sentence.

We have formal vicarious trauma training that all prosecutors are required to do when they start working for us.    

I've just introduced a clinical supervision pilot programme, which I expect will be rolled out across the organisation and will be part of our compulsory wellbeing. That involves every 12 weeks, a clinical supervision session with a trained psychologist who's been briefed on the type of work that we do.

We also have a range of initiatives available inhouse and all of our managing solicitors have qualified in mental health, health checks so they can identify red flags within their team.

Peter McClellan Gender balance in the legal profession is an ongoing issue. How's the DPP faring in terms of gender balance?

Sally Dowling We're doing very well. We're doing much better than the private profession. Over 60% of our solicitors are women.

The numbers are lower for Crown prosecutors. I think it's currently about 40%, principally because many of our gifted female Crown prosecutors are regularly appointed   to judicial positions.

Peter McClellan They’re snaffled for the bench.

Sally Dowling I don't get to hang on to them for long enough.

Peter McClellan Yeah well, I suppose that's perhaps inevitable. The talent shows through and the state says no come and work for us.

Sally Dowling Yes, very frustrating.

Peter McClellan Sally, thank you for sparing your time for us today and it's been a very interesting chat. And I look forward to everyone enjoying the insights into your office as well as an understanding of the Crown’s role in sentencing. Thank you very much.

Sally Dowling Thank you for inviting me on.

Peter McClellan You have been listening to Sally Dowling the New South Wales Director of Public Prosecutions. This podcast, Sentencing Explained is brought to you by the NSW Sentencing Council.

The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thanks for listening.

Peter McClellan Hello, welcome to the Sentencing Council’s podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today

Joining us today is the Senior Public Defender, Belinda Rigg. She will tell us about the role of Public Defenders, and talk about how defence counsel can assist a person who has been convicted, by presenting relevant evidence and making submissions to the sentencing judge.

Welcome, Belinda.

Belinda Rigg Thank you very much for having me, Peter.

Peter McClellan Belinda, can you just give us a little idea of your career in the law? You started as a barrister at a fairly young age. Is that right?

Belinda Rigg Yes, that's right. I didn't practise as a solicitor, which is a reasonably unusual step. It worked well for me. I had undertaken some research for a criminal QC while I was completing my practical training with the College of Law and decided that I wanted to go straight to the Bar and was particularly interested in crime. So I went straight to the bar without practising as a solicitor and I was in private practice for a number of years undertaking criminal work but also some common law work and employment and industrial law.

Peter McClellan That was a pretty bold step for a 24-year-old lady without any practical experience in the law, the motivation must have been very strong?

Belinda Rigg Yes it was. I was strongly motivated to become involved in court and present cases myself if I was able to do so and was particularly interested in criminal law. And I was very lucky that the criminal QC with whom I worked undertaking research work was very encouraging of me to do that.

So it was a happy time and I felt positive about that move, but I was the only female on my floor when I started at private bar.

Peter McClellan I’m not surprised. That's changed a bit now though, hasn’t it?

Belinda Rigg It's changed very significantly yes, and that floor now has a large amount of women and Public Defenders have a very high proportion of practitioners who are women.

Peter McClellan Well you became a member of the Public Defenders in 2004?

Belinda Rigg 2004, yes.

Peter McClellan Then became the senior Public Defender in 2019?

Belinda Rigg Yes, that's right.

Peter McClellan When you joined the Public Defenders, how many women were there?

Belinda Rigg Oh, at that stage it was a lower proportion than now, but there were some wonderful women who were there. Now Justice Dina Yehia was there, and I remember her very kindly taking me out to lunch on my very first day as a Public Defender.

Judge Leonie Flannery was there at that time, and a number of women who’ve now retired. You might recall Peter, some appellate practitioners such as Robyn Burgess was a woman on the floor at that time. Now Justice Chrissa Loukas-Karlsson was a member of the floor at that time, but it was a lower proportion of the floor than is currently the case.

Peter McClellan And today what’s the proportion of women who are Public Defenders?

Belinda Rigg I’m not entirely sure, but I would say that it's very close to half.

Peter McClellan Now as Senior Public Defender, I assume you have oversight and management of the whole office?

Belinda Rigg Yes, that's right. It is run essentially like barristers’ chambers, but there is a difference because we’re statutory office holders and I have a statutory obligation to oversee the work and efficiency of the Public Defenders’ work.

Peter McClellan The Public Defenders themselves are all advocates, they’re all in the court?

Belinda Rigg Yes that's right.

Peter McClellan How does the work come to them? And where does it come from?

Belinda Rigg So Public Defenders are salaried barristers who are employed by the government but work independently of the government. All of our work involves representing accused people who are charged with serious criminal offences and who have a grant of legal aid.

So the work might come from the Legal Aid Commission itself. That is, an in-house Legal Aid solicitor might brief a Public Defender or the work might come from the Aboriginal Legal Service briefing a Public Defender, or often a private law firm will have a grant of legal aid, and they then need to see whether a Public Defender is available to appear in the case.

Peter McClellan If a person has been granted legal aid for the defence of a serious criminal charge, does that mean they don't pay anything? The state pays for their defence?

Belinda Rigg That will depend upon the circumstances, and I don't unfortunately have to become too much involved in the grants side of things, which is worked out by Legal Aid. Sometimes it will be the case that they're required to contribute something if they have sufficient money to contribute something, but very often will be the case that they don't have any anything to contribute and don't contribute financially at all.

Peter McClellan When you say serious charges, what should we have in mind? Murder’s obviously a very serious charge.

Belinda Rigg Yes. Public Defenders appear in a large proportion of murder proceedings in this state, but not all Public Defenders will appear in murder proceedings. Trials that are running the District and Supreme Court will often have a Public Defender appearing for the accused.

So in the District Court there’s serious indictable matters that are dealt with in the District Court or at different levels. But it’ll be the more serious sexual assaults and serious drug charges and serious offences of violence within the District Court where a Public Defender will be appearing.

And then all offences that are dealt with in the Supreme Court, so murders, terrorism matters and all matters within the jurisdiction of the Supreme Court.

Peter McClellan Now obviously when some people are charged, they may admit the offence and plead guilty. Will Public Defenders appear in those circumstances?

Belinda Rigg Yes, certainly.

Peter McClellan Depending on the nature of the charges?

Belinda Rigg Yes, yes.

Peter McClellan And then others, of course, plead not guilty and it goes to trial?

Belinda Rigg Yes, and there are many in between who might not initially admit their guilt, but come down the track to plead guilty and a Public Defender who’s briefed will be representing them throughout that process and in the sentence proceedings.

Peter McClellan And obviously some trials take a long time, many weeks, others are much quicker.

Belinda Rigg Yes.

Peter McClellan But in terms of the time that you yourself would spend in court every year, are you in court most weeks?

Belinda Rigg I’m not in court most weeks now or it would depend upon the year. In the first half of this year, I was certainly in court most weeks. The second half of this year I’ve been in court, not most weeks. I’m focusing more back on the management and policy side of my work and also, I have some large appellate briefs that I need to take care of. So not as much time in court in the second half of this year as there was in the first half, for example.

Peter McClellan Appellate briefs in the Court of Criminal Appeal and the High Court?

Belinda Rigg Yes, Public Defenders accept briefs to advise and appear in both of those jurisdictions. And I do so as well, so I will accept briefs to advise in Court of Criminal Appeal matters and High Court matters. What happens in relation to people who want to appeal in a criminal case where they’ve been convicted and sentenced who want a grant of legal aid, is that they need to pass, not just the means test, but also a merit test.

So when someone’s charged with a serious criminal offence and is going to trial or to be sentenced, they really just need to have their means looked at. Whether they don’t have enough money to otherwise obtain legal representation. But because legal aid resources are scarce, there’s additionally a requirement to pass a merit test before people will be granted legal aid for the purposes of appeal.

So what that usually involves is counsel providing an advice as to whether there are reasonable prospects of success on appeal, either against conviction or sentence to the Court of Criminal Appeal.

And because of the nature of that work, it really means that a lot of the appellate work is undertaken without going to court, because in the majority of cases it will be determined that there are in fact not reasonable prospects of success and an advice needs to be prepared rather than submissions prepared and going to court to argue the case.

Peter McClellan Now the podcast series, of course, is concerned with sentencing.

Belinda Rigg Yes.

Peter McClellan I’d like to talk to you about how you approach the sentencing hearing for someone who's been convicted, or indeed for someone who’s pleaded guilty. Can you tell us what steps you go through in order to prepare the submissions for someone at their sentence hearing?

Belinda Rigg Yes certainly. There are a number of steps involved. Where someone has pleaded guilty, the parties will usually endeavour to prepare a document that’s really an agreed set of facts for the sentencing judge.

So the prosecution will serve a brief of evidence, which is the statements and other documentary material that have been obtained by the police in the investigation of the matter. And the prosecution and the defence will try to come to an agreement as to the factual matters that support the offence the person is going to plead guilty to and set out such relevant background as is apparent from that brief of evidence that will assist the court. So in the majority of cases, that’s able to be done, that is a set of agreed facts prepared for the sentencing judge.

Sometimes there will be a dispute about that. That is, the prosecution wants to press one aspect of the case, which one witness or a number of witnesses support but the offender himself or herself says didn’t happen or doesn’t properly reflect the offending behaviour. And in those cases, there will need then to be a hearing where the witnesses are perhaps cross examined during the sentence proceedings.

So that’s really the first step where someone has pleaded guilty.

Where there’s been a trial, we will endeavour to, both parties will endeavour to try to point to those parts of the evidence that they want, or suggest the judge should accept, as setting out the factual circumstances surrounding the offending, and that’s really a matter for the judge to decide.

Peter McClellan Do you make submissions in writing in relation to the facts?

Belinda Rigg Yes, often that will be done because the judge is bound by the jury’s verdict in the sense of having to find facts that cover the elements of the offence the person has been found guilty of, but often there will be a whole lot of questions that are left unresolved by that bare decision and the judge has to make a decision about those factual issues which will sometimes be of quite great significance in looking at the seriousness of the offence. So that’s one part of preparing the matter for sentence.

But when one is acting for someone who is the offender, there’s a lot that needs to be done to present that person’s case on sentence. And really, this is the whole issue of explaining, if it’s possible, why the offence was committed and what that person is like. And what this offending and the person’s background and all of their circumstances mean. What can be taken from it to see what the future holds.

Peter McClellan They’re what we call, I think the subjective matters.

Belinda Rigg Yes.

Peter McClellan The facts of the crime, as it were, are the objective matters and the features of the offender are the subjective matters.

Belinda Rigg Yes, although there’s some crossover really between them to some extent because for example, the reasons why someone has committed a crime, their motivation, their degree of planning or deliberation about it, whether they’ve been provoked, whether there was some type of duress, but not amounting to a defence. Those types of considerations will bear upon the seriousness of the offence as well.

And there are a lot of background considerations that bear upon what’s regarded or described currently as the offender’s moral culpability for the offending and there are a whole range of background considerations that are well understood to bear upon that issue.

Looking at the offender’s blameworthiness for what they’ve done, so things such as, mental illness, cognitive impairment, or a background of social deprivation, for example. They’re the type of background circumstances that are really important to understand and get across to the court because they will in many ways bear upon the just outcome in the individual case.

Peter McClellan And where does defence counsel go to get evidence on those matters?

Belinda Rigg It will depend upon the individual person, the individual offender, so you will know something about the individual offender from the instructions that you have received from your instructing solicitor, but also your own involvement in conferences with the offender.

For the purposes of sentencing, sometimes it’s the case that the offender themselves will give evidence. And so, it can be quite a drawn out process obtaining all the details from a person that might be relevant to the sentence proceedings. Often that can then be put together in an affidavit form with the person then being prepared to be cross examined about it in court.

Peter McClellan Will you call an offender both when they pleaded guilty and when there’s been a trial, or only when they’ve pleaded guilty?

Belinda Rigg Often when they have pleaded not guilty and have been convicted they are maintaining afterwards that they're not guilty. So it maybe that their evidence is more problematic perhaps.

Peter McClellan May not be worth quite as much.

Belinda Rigg It may not be worth quite as much. Whereas there are often people who have pleaded guilty who really are very genuinely remorseful for what they’ve done. It isn’t always easy to call those people to give evidence because there are often limitations on their ability to explain themselves. There may be problematic aspects of what it is they would like to talk about, but that is one option, is calling evidence from the person who has pleaded guilty.

But we often as well obtain psychiatric and psychological reports that are put forward on behalf of an offender, particularly if they have a diagnosed cognitive impairment or mental illness, but often just even in a more diffuse way, they explain the background of the person because the expert has gone through that background with the offender themselves and often looked at a huge amount of documentation that's capable of supporting that background that's explained by the offender.

So we might have records from hospitals, from schools, from Justice Health who look after people, once they’re in custody and also the prosecution is part of the personal or subjective circumstances.

The prosecution will provide the sentencing judge with the offender’s criminal history, which is the record itself, but sometimes even the facts of individual charges, if they’re particularly relevant to the offence the judge is going to be sentencing the person for.

So they’re some of the ways that we will prepare for putting the offender’s case forward on sentence getting evidence, perhaps from the offender, expert reports or calling character witnesses, either in person or in terms of documentary material, references that might be advanced.

There's also, I think, one of the topics that you’ve indicated Peter, that you're interested in is the Bugmy Bar Book and I can speak about that also because that’s a resource.

Peter McClellan Tell us about the Bugmy Book.

Belinda Rigg So following from that case, as you will, one of the issues that arose from the High Court decision in that case was the need to have evidence available to explain the particular circumstances of the background of deprivation if it exists or exposure to alcohol and violence and matters of the kind that were considered in Bugmy by the High Court.

So there are a couple of aspects to that. One aspect is looking at the individual person’s background. So you will need to have evidence before the court, either from the offender or from members of their community or from an expert report, looking at what their personal circumstances actually are.

But what the Bugmy Bar Book is, is a resource that’s available to practitioners to provide courts with assistance in understanding the academic research that has been undertaken in relation to some key areas of disadvantage that commonly arise in the sentencing process.

This arose originally from a group of people, that Bugmy Bar Book project included representatives of the Public Defenders and the Aboriginal Legal Service and Legal Aid and some academics looking at how this material might be gathered together in a way that was suitable for presentation on sentence.

And we now have a number of chapters that are in a form available on the Public Defenders’ website which can also be accessed via the Judicial Commission website, which present information to provide to the court about particular areas of relevant background disadvantage. Such as exposure to domestic and family violence, or cultural dispossession, or interrupted school attendance and suspension. And they’re different chapters that can be accessed electronically, and each of those extracts is from major reports and leading academic research.

And so it’s compiled by a researcher under the supervision of a senior legal academic or legal practitioner nominated by the committee. And this is then assigned to an expert in the field for review to ensure accuracy and comprehensiveness and all chapters are then reviewed as well by an Aboriginal or Torres Strait Islander member of the Independent Advisory Panel, and these are chapters that can then be handed up in court to the judge to explain not the particular person but the well-recognised ramifications.

Peter McClellan The understanding that we have of what they mean.

Belinda Rigg Yes, of those situations.

Peter McClellan These chapters are available to anyone who goes to the Public Defenders’ website. Is that right?

Belinda Rigg Yes, they are yes.

Peter McClellan Is it in hard copy or is it just electronically available?

Belinda Rigg They’re available electronically, but they can be printed, and so they’re generally handed up in hard copy to sentencing judges. There are representatives of the prosecution on the Bugmy Bar Book committee. And it’s the case that, generally speaking, the prosecution takes no opposition with the provision of these chapters in court to sentencing judges. Whether they’re relevant or not will depend on whether the defence counsel has otherwise put material before the court to establish …

Peter McClellan Yeah, the relationship.

Belinda Rigg Yes, that's right.

Peter McClellan Now tell me when you come to make submissions to the judge, all of the evidence is in and gathered together. How do you go about seeking to persuade the judge of the appropriate sentence for your client, how do you frame your submissions?

Belinda Rigg There are a number of preliminary considerations that need to be really decided. The first is whether the threshold that’s set out in section 5 of the Crimes Sentencing Procedure Act has been crossed. That is, whether it is a case where someone needs to receive a gaol sentence of some sort.

Peter McClellan I take it that's obvious in some cases. But are there many cases where it’s not so obvious?

Belinda Rigg Yes, that’s right, there are quite a number. Unfortunately, I’m generally not appearing in those.

Peter McClellan Your clients have done things bad enough to put them in gaol, is that the idea?

Belinda Rigg Yes, generally, but often that will be a really important thing that needs to be prepared by a Public Defender or other defence advocate urging the position that that threshold has not been crossed and someone just should not receive a custodial sentence of any form. Once that threshold has been crossed, it’s important then to look in appropriate cases at options other than full time custody.

Peter McClellan Of which there are now a number.

Belinda Rigg That’s right, and the way that they are looked at now is interesting because for example, the option of an Intensive Correction Order is one, which recognises that often the risks of recidivism, which really need to be considered looking at the protection of the community, might be addressed better by someone staying in the community and being supervised with appropriate programs than receiving a sentence of imprisonment for two years or a short period that the ICO provisions look at.

So that’s the next important step that a defence counsel would look at - is the threshold crossed? If it is, does it need to be full time custody? And that’s then a matter about which you would address submissions to the judge based upon all of the relevant circumstances of the case.

Peter McClellan This is being done orally or in writing?

Belinda Rigg It’s normally done both ways. In my experience, for serious matters, especially where there is a live argument as to whether someone should receive something other than full time custody, there would normally be written submissions provided to the sentencing judge.

Peter McClellan And then having made submissions about whether or not full-time custody, and I take it submissions would then be made if the argument is there shouldn’t be full time custody, submissions are made as to the type of community order that might be appropriate?

Belinda Rigg Yes.

Peter McClellan And does counsel ever get down to talking about how long a person should be sentenced to? What term of sentence might be appropriate?

Belinda Rigg No, generally not.

In that sense with one exception. If it’s a case where the crown is contending that the maximum penalty should be imposed. So for example, the maximum penalty of life imprisonment for murder should be imposed, or the finite maximum penalty in other cases, there will then be specific submissions that that is a figure that should not be imposed.

Peter McClellan Too high.

Belinda Rigg All of the circumstances of the offence and offender are not so great as to warrant the maximum penalty. But other than that, we generally don’t make submissions about the actual number of years.

Peter McClellan You don’t say things like the sentence should not exceed ten years or five years. You don’t say things like that?

Belinda Rigg No, there are some exceptions, so for example in relation to some criminal offences, there are guideline judgments.

So where there’s a guideline judgment, submissions will be directed quite closely to comparison with the key features of the guideline judgement and submissions advanced as to whether the case is more serious or less serious than the particular guideline judgment.

Similarly, where there is a co-offender, then the principle of parity requires quite close consideration with the actual sentence of imprisonment that was imposed on the comparable offender. But those are rare circumstances where there’s another case with a specific number of years indicated to which comparison is made.

Comparable sentences can be provided to the judge, so long as they set out a good array that is relevant to the offending that’s before the court but there are significant limitations on the use that’s able to be drawn from those cases.

Peter McClellan What about the statistics kept by the Judicial Commission? Do defence counsel use those statistics?

Belinda Rigg Defence counsel do often use those statistics. Again, there are limitations on the used to be made of them and the use of them can be quite blunt at times.

There’s what is perhaps of more significance or more assistance is going into the links that are now provided on the Judicial Commission website with those sentencing statistics to some of the individual cases that comprise that range and those links will then provide better information as to whether there’s been a plea of guilty or not, whether the person has prior criminal convictions, matters of that kind that then give a bit more detail.

Peter McClellan The whole picture, yes?

Belinda Rigg Give a bit more detail, yes.

Peter McClellan Now let’s assume that your client has been sentenced and he or she doesn't like the sentence particularly, thinks it’s too high. What happens as far as defence counsel is concerned in that event?

Belinda Rigg So usually defence counsel would advise the client of their entitlement to have an appeal to the Court of Criminal Appeal considered. Normally in my situation there will be clients who need a grant of legal aid, so they will be advised to make an application for a fresh grant of legal aid.

Peter McClellan So you would advise if you want to pursue the matter, you’ll have to go off and make an application or go to gaol and make an application for legal aid.

Belinda Rigg That's right, and sometimes counsel who appeared at that sentence will keep the matter for the purposes of considering appeal. Sometimes it’s considered by a fresh set of eyes and alternative counsel will look at it.

Peter McClellan Now I can imagine that many people who are sentenced think the sentence is too high. What sort of percentage would justify an appeal in the eyes of the Public Defender’s office?

Belinda Rigg I don't know Peter really in terms of percentages, but I can say that by the time they come to us Legal Aid Indictable Appeals Unit have really weeded out a large portion. Well, I don’t know whether it’s a large portion, but some of the applications. So people put in an application for legal aid. There are very experienced solicitors within the indictable appeals team at Legal Aid. So in some matters where it’s obvious they will say “no, you’re not having a grant of legal aid” and it never gets to counsel. But a lot of matters do come to counsel.

Belinda Rigg So a Public Defender will accept a brief to advise if there’s a Public Defender available, otherwise there are a number of private barristers who will accept briefs to advise as well, in relation to appellate matter.

And so what then needs to be considered is whether there are reasonable prospects of success on appeal, and there are a couple of other issues in terms of the legal aid test, but that’s the main issue that’s of importance is working out whether there are reasonable prospects of success on appeal.

And you mentioned that the person might think that the sentence is too high. It’s of course not as simple as being able to go there and say that the sentence is too high. It’s a court of error in relation to sentence appeals and the process is governed by sections 5 and 6 of the Criminal Appeal Act and you have to take that into account in advising whether there are reasonable prospects of success or not.

Peter McClellan Now I assume sometimes there’s been a conviction followed by the sentencing of the offender. But there are perhaps some appeal grounds in relation to the conviction. What happens in those circumstances?

If an appeal is advised, the appeal would be lodged against conviction. Would a sentence appeal, if that was brought also, come at the same time? Would they come together?

Belinda Rigg Normally they do, but they don’t inevitably need to.

In unusual circumstances, a conviction appeal can actually be heard prior to a person being sentenced, or sometimes because merit has been found on conviction but not on sentence there will only be a conviction appeal and not a sentence appeal. But it is only in reasonably unusual circumstances that a conviction appeal will be heard before a person has been sentenced.

Usually what happens is everyone waits until after the person has been sentenced and then consideration is given at the same time to the issue of whether there are reasonable prospects of success on conviction or sentence, or both of them and the same counsel will generally look at both of those issues.

Peter McClellan Now I think if you’ve been convicted, you have a right of appeal in relation to your conviction?

Belinda Rigg It depends on whether what’s involved is a question of law or question of fact, or a mixed question of law and fact, and in a lot of cases leave is required. So it’s an application for leave to appeal. But that is usually granted if there’s merit in the application itself.

Peter McClellan And if it’s just a sentence appeal, I think you need the leave of the Court of Criminal Appeal.

Belinda Rigg Yes, that’s right.

Peter McClellan There used to be, I think, in the olden days, as they say, a capacity in the Court of Criminal Appeal when considering a convicted person’s appeal against sentence, to actually increase the sentence. Does that ever happen these days?

Belinda Rigg It tends not to happen because what would usually be required is a similar consideration of procedural fairness, as happens in the District Court. This happens frequently, that someone will appeal from the Local Court to the District Court. The District Court Judge thinks that a heavier sentence should have been imposed. They provide what’s called a Parker Warning to the applicant saying, well look if I really go on to decide this, there's a significant prospect I might give a heavier sentence than the one you already have. What that does is it alerts the person to the danger of their sentence being increased and they might choose to withdraw the appeal.

Traditionally, that hasn’t really been needed to be done in the Court of Criminal Appeal, but following the High Court’s decision in Kentwell and the Queen, because the Court of Criminal Appeal is itself considering resentence, it may be that as a result of that independent analysis, the judicial officer, each of the judges of the bench or one of them is of the view that a higher sentence should be passed.

Sometimes it could be the case that during the course of oral argument that prospect is brought to the attention of appeal counsel, but usually the proper result in the case such as that would simply be that the appeal is dismissed because the court has not found that a lesser sentence is warranted in law. That is, the court wouldn't go on to in fact, increase the sentence.

Peter McClellan Now, our hypothetical offender may still be troubled by the decision of the Court of Criminal Appeal. Is there a capacity to go from the Court of Criminal Appeal to the High Court?

Belinda Rigg Special leave applications to the High Court are much more difficult still than applications for leave to the Court of Criminal Appeal because apart from error, the High Court will need to be persuaded that the matter is one of importance in a general sense to the administration of law, and it’s quite rare that that is the case in sentence proceedings.

Although there have been over the last couple of decades, quite a lot more decisions of the High Court in relation to sentencing, than there were prior to that so there is capacity to again make an application for special leave to appeal to the High Court. But those applications are very rarely granted and in relation to the provision of legal aid again, counsel briefed to advise is very conscious of the need, not just to show error in the individual case, but to demonstrate that the case is really one which considers an important matter of principle that the High Court should become involved in for clarifying law which is uncertain, particularly if it involves jurisdictions beyond New South Wales, but particularly if it’s a matter of general public importance.

Peter McClellan Now, Belinda, you’ve been involved in the criminal law for many years.

Belinda Rigg Yes

Peter McClellan Do you ever say to yourself, it's about time I should go and do some civil law, or are you happy to stay with the crime?

Belinda Rigg I’m happy to stay with the crime.

Peter McClellan Can you tell us why? What is it that attracts you to the crime?

Belinda Rigg Criminal law is an area of law which I think goes deeply to humanity and our understanding of human nature and what it is in the good and bad sense that people are capable of doing.

I think it’s important for people who don’t have adequate resources to be well represented in the criminal justice system, and that’s why I have found happiness in being a Public Defender rather than a private practitioner.

But criminal law just addresses so many aspects of what is important about a just system, a just community functioning and dealing with its members, who are who are hurt, who suffered trauma, who offend, who need assistance.

Peter McClellan It used to be the case when I was a barrister, that sometimes it’s a dinner party you’d be challenged as to how is it possible that you could appear for that terrible person who’s been on the front page of the newspaper allegedly committing a serious crime, do you get challenged in that way yourself?

Belinda Rigg Yes, I do sometimes. I’ve had that question asked of me many times, yes.

Peter McClellan And what’s your answer?

Belinda Rigg I’m sure it comes out differently each time, but the core aspect of it is one which comes back to a belief in the core dignity of all human beings and the importance of our criminal justice system functioning fairly.

And for our criminal justice system to function fairly, everyone who’s involved in it needs to be working as an expert within their own area of expertise, either as practitioner or as defence counsel or as a judicial officer to understand the law well and apply it to the best of their ability.

And if that happens then the system as a whole functions fairly, and because of that it doesn’t matter what the individual person has done or is alleged to have done, there needs to be that commitment to all people charged with criminal offences.

Peter McClellan Yes, I’ve often heard it said that if the barrister was to decide not to appear, to choose whether or not to appear effectively the barrister becomes the judge.

Belinda Rigg Yes.

Peter McClellan Whereas if the barrister accepts the responsibility to appear, then the judge is allowed his or her proper role in the criminal justice process.

Belinda Rigg Yes that there is a very apt way of looking at it, that’s right.

Peter McClellan Belinda, thank you very much for coming and talking with us today. I’m sure those listening will have been fascinated to have a little insight into the Public Defender’s role and the way you approach the sentencing of offenders.

Peter McClellan Thank you for joining us.

Belinda Rigg It’s been a pleasure, Peter, thank you very much for having me.

Peter McClellan You have been listening to the NSW senior Public Defender, Belinda Rigg. This podcast Sentencing Explained is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today are two judges of the NSW Supreme Court. Justice Robert Hulme has been a judge of both the District Court and the Supreme Court. He has conducted a great many criminal trials and sentenced many offenders.

Justice Christine Adamson is also a judge of the Supreme Court. Together with Justice Hulme, she has also sentenced many offenders. Apart from their work as trial judges, they frequently sit on the Court of Criminal Appeal where many offenders’ sentences are reviewed. The judges are going to discuss the principles which judges follow when sentencing in NSW.

Peter McClellan Justice Adamson, is sentencing easy?

Justice Adamson No, not at all.

Peter McClellan Not at all. What makes it hard?

Justice Adamson It’s hard for a number of reasons. One of the reasons it’s hard is that if you’re in the Supreme Court, you're usually imposing sentences of imprisonment and the responsibility for putting another human being in custody for what is often a lengthy time is one, which weighs heavily on me and I assume on all judges who have to do it because it creates such a huge hardship for that person and a huge change for that person’s life. So it’s a big responsibility and something which one has to think about very carefully. But also one has to have regard to the seriousness of the offence and the effect on the community and the expectation of the community, certainly in New South Wales, that people who commit serious offences should spend a long time in custody, so I do find it very challenging.

Peter McClellan And how do you go about it? What’s the starting point? We know of maximum penalties. I think for murder it’s life which is provided by the parliament. How do you go about working out whether someone should receive a penalty for, life or some lesser penalty? What’s the starting point?

Justice Adamson Well, I suppose the maximum penalty is reserved for the worst category of case, and that doesn’t require you to envisage the worst possible case. But it is a guidepost for cases in the worst category. And so if one has regard to how one considers the seriousness of the offence in light of all, as well as possible, permutations or matters that could fall within that offence to work out where it might sit. But of course that’s only one factor to take into account in the sentence.

Peter McClellan Is it right to think of the maximum penalty as the first step that the judge has to take to identify all of the matters that are relevant to the ultimate sentence to be imposed?

Justice Adamson Yes, I would think logically it must be the first step.

Peter McClellan Yeah, have you ever imposed the maximum penalty on any offender?

Justice Adamson No, I’m happy to say I haven’t. I haven’t had cases which would be in that worst category and certainly if one is thinking of murder, then murder of a child or a murder which involved particular cruelty or sadism would, I would imagine be in that worst category and I feel grateful that I haven’t had to deal with anyone in that worst category, although every murder is a very serious matter.

Peter McClellan And that leads me to ask you about the purposes for which courts impose sentences on offenders. I think these purposes are included in a statute?

Justice Hulme There is. We have our crime Sentencing Procedure Act, which sets out in section 3A the purposes of sentencing, but when that legislation came into force, it did not tell us anything new. It just reflected the existing law. And there are a number of features of sentencing or purposes that we need to have regard to and they don’t all point in the one direction. You can have the need to impose an appropriate punishment and there also might be a need to impose a punishment that allows scope for the rehabilitation of the offender. And they clearly point in two different directions in most cases.

There is punishment. Denunciation of the offender’s conduct. Making the person accountable for what they’ve done. Reflecting the harm that they have done to a victim. They’re all attributes of punishment or allied concepts.

But there’s also a need to protect the community which is somewhat different for some offenders who pose a risk of further offending, particularly violent offending or sexual offending. Protection of the community is an important issue, but as I’ve indicated, rehabilitation is often a very strong feature of the sentencing equation as well.

We are required to impose a sentence that is proportionate to the seriousness of the offence in question. That is we can’t impose a sentence that has no reflection either because it’s too much or too little response to the seriousness of the offence. Engaging the seriousness of an offence, and the punishment that needs to be imposed requires us to take into account aggravating features which there is legislation that provides us with a list. And it covers things like the person’s prior record. Whether an offence was committed in company; whether there was violence involved in the offending or the use of a weapon. Things like that, that aggravate the seriousness of an offence.

But then there are mitigating features that point in the direction of a less serious sentence, such as the person’s prior good character, if they have good character; whether they might be unlikely to reoffend; whether they’ve got good prospects of rehabilitation. They might be remorseful. They might have pleaded guilty. There are those factors which point in the direction of a less serious sentence.

Peter McClellan Are there any factors on the aggravating side or on the mitigating side, which are more important than others?

Justice Adamson I think the matter of remorse, whether the person has shown remorse and is sorry for what they’ve done. That that seems to me quite a significant thing, because if somebody really is truly remorseful, and of course everyone pretends to be remorseful, or everyone who pleads guilty pretends to be remorseful, but if someone is truly remorseful, then that really means that, or can often mean that, their prospects of rehabilitation are good and that the community may not need to be protected, particularly from that person, and the person may have learned the error of their ways and so I think that's a pretty significant one.

Peter McClellan Right, any others that come to mind, as featuring in the process?

Justice Adamson Also, another factor is the degree of planning. I think some people think, and perhaps if they’re used to crime fiction or watching detective shows on television, that there’s a degree of planning.

Peter McClellan Which I gather judges don’t do.

Justice Adamson Well, I don’t do it. I have enough of this in real life. I must say I couldn’t bear anymore. But the degree of planning because what some people don’t appreciate is that many homicides and many murders are really just a very bad 5 minutes or half an hour in someone’s life and that may be quite significant to factors relating to sentence.

Peter McClellan It’s got something to do with the access to a gun too. I think. In some cases.

Justice Adamson Very much so. And also, a drug like ice can make people who are not otherwise aggressive, very aggressive, and that may cause someone to kill another person.

Peter McClellan That raises the question which the general public often ask. If someone has committed a crime when they’re on ice, which regrettably seems to happen not infrequently, does the judge increase or reduce the sentence that might be imposed as against the person who is not on ice when they commit the crime?

Justice Adamson Well, it depends. I mean self-induced intoxication isn’t an excuse for committing an offence. But if for example somebody has had a very deprived childhood and they’ve grown up in an environment where they’re surrounded by illicit drugs and say they’ve been addicted to drugs from a very young age, say the early teens, then that can be taken into account as a mitigating factor because it would be unfair to hold someone fully responsible for something that happened to them at a time before they were able to take responsibility for their actions, so sometimes it can be a mitigating factor.

Peter McClellan Now the there’s a concept referred to as moral culpability that comes into all of this discussion. What does that mean to the sentencing judge?

Justice Adamson Really, it means how bad do you think this is and often assessments of moral culpability may be very revealing about the values and standards of the judge. So assessing moral culpability would be one of the most difficult things I think we do because we’re making a moral judgment and normally one is not called on to do that in life. But it is an opportunity to say how bad you think particular conduct is.

Peter McClellan I think for some offences the parliament has given you another guidepost, as it were, which is the standard non-parole period. Is that what you look at second, if you like, after you’ve looked at the maximum.

Justice Adamson Very much so, yes, very much so.

Peter McClellan And how do you use the standard non-parole? How do you bring that into your thinking?

Justice Adamson Well the standard non-parole period, for example for murder as has been mentioned, the maximum penalty is life but the standard non-parole period is 20 years. So that gives you an indication that in the usual ordinary midrange murder, if there is such a thing, that it would be expected that the person would spend 20 years in custody as the non-parole period. And that’s a very useful parameter and it has, because of the setting of the standard non-parole period, I have noticed that these sentences for murder after that had been set, have been significantly higher than they were previously.

Peter McClellan Well I think we’ve had standard non-parole periods since 2002 or 2003.

Justice Adamson Quite a long time.

Peter McClellan So you can see a change, can you in the sentences in that time? With a concentration around the 20 year non-parole period?

Justice Adamson Yes, yes I would say so.

Peter McClellan If someone receives 20 years non-parole, what will the head sentence usually be?

Justice Adamson Well, usually there's a ratio of 75% between the standard non-parole period and the total term and the New South Wales statute provides for that, unless there are special circumstances. And if there are special circumstances, that ratio is adjusted downwards to mean that a person has a shorter period in custody and a longer period on parole. So instead of it being 75%, it might be say 60% or even 50%.                          

Peter McClellan Justice Hulme, can you tell us what is the purpose of parole?

Justice Hulme The idea of having a non-parole period in the sentence is to allow an offender some mitigation on the term of a sentence of imprisonment that will allow for, ideally, a period in the community where they’ll be supervised, or where through that, or some other means their rehabilitation might be enhanced. There are some cases in which no parole period is appropriate at all, and they’re rare cases. Usually in circumstances where there’s a repeat offender who has abused chances of rehabilitation that have been afforded to him or her in the past, where a judge might decline to fix a non-parole period at all. So if there’s a sentence of five years imposed, there will be no non-parole. The offender will serve the entire 5 years. But that means that they are released at the end of the sentence without any opportunity for community supervision at all. That’s why it’s a rare thing to occur, but usually a judge is mindful of the rehabilitation prospects of an offender and will assess a non-parole period with that in mind.

There is a legislative restriction in that a judge cannot impose something that is less than 75% of the overall term of the sentence, unless the judge considers they’re special circumstances in the case and if there are, the judge has a discretion to fix a lower percentage of the overall sentence as the non-parole period.

Peter McClellan What can be special circumstances?

Justice Hulme Special circumstances might be, for example, a person has a mental impairment, an intellectual impairment or mental illness in which they need an extended period of supervision, not just the usual period that might be allowed for in a 75% non-parole period situation. But they need a lengthier period of supervision to help them to reintegrate into society, to find employment, to engage with treatment and rehabilitation services and the like. And if there was a strong case made for an offender needing a longer period of that supervision by a parole authority within the community, then the judge might well find there are special circumstances.

Peter McClellan It’s not uncommon, or at least in my experience to hear members of the general public criticise the sentence which a judge has imposed in a particular case. Normally the cases that get a lot of publicity, mainly a fairly serious crime, and very often that criticism is directed to the judge being soft because the offender had a particularly deprived background or troubled youth and similar issues. How much can those sorts of issues play out in the ultimate decision as to the appropriate sentence?

Justice Hulme There's two things I'd like to say in response to that question, but I think the nub of it is this. What often does not receive much attention in media reporting of cases, in which a sentence has been imposed, is that there may be something compelling about the subjective case. The personal circumstances of the offender. An offender might have an intellectual impairment, a mental illness. They might have derived from an upbringing of deprivation or dysfunction, where they’ve been exposed to drug abuse or violence; where they’ve had no role models to guide them in the formative years of their life. Those are things that uncontroversially count in favour of a less serious sentence being imposed. People such as these are lesser examples to hold out to others as being people to demonstrate the deterrence in sentencing. The moral culpability as we sometimes call it, or moral blameworthiness of an offender. It is recognised as an important feature to take into account in the assessment of a sentence.

That, as I said, often doesn’t get much attention in media reports of sentencing. The other thing I’d like to say in response to the question is this. There have been a number of studies done in the last decade or so. Where members of the public not legally trained have been asked to indicate their opinion as to what an appropriate sentence should be in a particular case. They’ve been given all of the facts of a case; the details of the offending, as well as the personal circumstances of the offender. Sometimes these people are just randomly selected members of the public. Sometimes they’re actual jurors who have sat in on trials of offenders and they are asked, with the light of that knowledge, what sentence they think should be imposed and it’s been indicated that, more often than not, it’s the same or a lesser sentence than the judge actually imposed in the case, which tends to suggest that judges are not so much out of touch as some media reports might indicate.

Peter McClellan And I assume what’s happening there is that when the member of the public is made aware of all of the circumstances, as you say, including the background of the offender, then they get a different picture to what they might receive by reading a newspaper. Which talks only about the physical elements and maybe the horrific nature of the crime itself.

Justice Hulme Yes, that’s the key to it. I think the public awareness of the full details of the offence and of the offender, which a judge must take into account and which some media reports often do not.

Peter McClellan Can we change tack a little. Justice Adamson, I just want to talk to you about what happens in the courtroom when an offender is up for sentence.

Justice Adamson In my experience there is a delay because often the offender wishes to assemble evidence of the offender’s own life and subjective circumstances and it’s also not uncommon for a psychological or psychiatric report to be obtained on the offender and that takes time.

Peter McClellan Why do you get that report? What’s the relevance of that psychiatric or psychological report?

Justice Adamson I think often the offender and those appearing for that offender want to give the court a view in the round of the offender. Whereas particularly if it’s a conviction after trial, the trial is really concerned only with proof of the offence charged rather than matters personal to the offender.

Peter McClellan Does the offender have his choice or her choice of psychiatrist or psychologist, or is that done by the state?

Justice Adamson Well, it depends on money. If the offender is funded by Legal Aid, then I understand there’s a panel of experts who could be available to examine the offender and obtain a pre-sentence report, but I think if the offender is privately funded then the offender or his or her solicitors could retain a psychiatrist for that purpose.

Peter McClellan And the normal delay between a finding of guilty and the sentence hearing is what sort of period?

Justice Adamson It could be a period of months. Sometimes it depends on the availability of the legal representatives or how long it takes to get a report. But in my experience, sentence hearings tend to take a day or two, so it’s relatively easy for the court to find the time to list those, and it tends to be more practical matters which cause a delay.

Peter McClellan And is judgment then given on the spot? Or does the judge take time or further time to consider?

Justice Adamson Well, in in this court and speaking for myself, I try and give myself a week, but no more than a week. And I do that because judges in lower courts who are imposing a lot more sentences than we are, tend to impose sentences straight after the sentence hearing. But in this court, the sentences tend to be longer and potentially the offence is more complicated and the sentencing reasons or the reasons for the sentence judgment are published.

So I think it’s important to take a lot of care with the words one chooses to explain the sentence and also I like to sleep on it or not as the case may be, because it’s a very serious decision and I like to think carefully about it and sometimes I wake up in the middle of the night and think about it. So that’s why I think a week is a good length of time and I might well have other hearings during the day throughout that week, but out of hours I can think about it.

Peter McClellan Yeah, and what actually happens at the sentence hearing? Obviously the psychiatrist or psychologist tenders a report?

Justice Adamson Yes, I mean just getting quite back to basics.

The Crown tenders its material which might be the criminal history of the offender or the custodial history, the charge and if there are any agreed facts, the Crown will tender those. And then in the course of a sentence hearing, there may be a victim impact statement and the Crown will either have the victim read out that impact statement in the court, or the Crown prosecutor might read it out if the victim doesn’t feel comfortable reading that out in court. So those documents are tendered by the Crown, and that’s what happens.

Then also the offender might then tender a psychiatric report. The offender may also give evidence himself or herself. Potentially to explain or to express remorse. There may also be character evidence on behalf of the offender to demonstrate how out of character it was.

Peter McClellan Or oral evidence or someone in the witness box?

Justice Adamson Sometimes that, but more frequently, character references by people who don’t come to give evidence in matters of that nature.

Peter McClellan You often hear, or perhaps read in the newspapers more than hear, complaints about judges being soft on crime and very often those stories come with an account of the objective circumstances of the offence and maybe some comment or record of some of the subjective personal characteristics of the offender. Often not all of those factors, but the complaint commonly made that you hear anyway is that judges are soft because they’ve been persuaded that because John Smith had a bad childhood, therefore he shouldn’t receive the same penalty for a serious offence. How do judges respond to that sort of criticism?

Justice Adamson My instinctive response would be, I suppose, twofold. One experience I’ve had certainly, as a judge of the common law division, is to realise that, well, first I’ve had a very privileged life and I have had and known two parents who loved me very much and loved each other and that’s a very privileged position to be in. But also that a lot of the crime that we see is committed by people who have had very unfortunate childhoods because an unfortunate childhood may lead to drug addiction and that may lead to crime and one sees that particularly in the bails list. So I think it’s certainly the case that as a judge, one sees perhaps a much deeper and wider view of what goes on in society then when one is not a judge, and one sees a lot more crime and one sees more perhaps about the causes of crime.

So as to whether we go soft, I would challenge anyone who thinks that a sentence is too low. I would encourage them to read the reasons for sentence, because in the reasons for sentence, the judge needs to explain the factors taken into account and often when one reads the sentencing judgment of a judge, one can then understand better how it looks from the offender’s point of view, but also from the community’s point of view.

Peter McClellan I think one of the issues, I’m not sure whether you’ve seen much of it, but one of the issues that confronts the judiciary in sentencing is that many offenders have a childhood which reveals sexual assault as a young person, very often under 12 years of age which has a well-known pathway towards criminal activity. Have you seen many who fall into that category when you have been dealing with offenders?

Justice Adamson Not so much when I have been sentencing offenders myself. But certainly in the Court of Criminal Appeal, I have very much seen that and when one sees that kind of pathway it would seem to me most unjust to hold an offender fully responsible and regard that person as as blameworthy as somebody who had not had that experience previously.

Peter McClellan That’s hard for the general public, of course. To understand, I think.

Justice Adamson Well, I think that means that we need to explain it better in the reasons for sentence.

Peter McClellan Now victim impact statements are a relatively recent phenomenon in the courts but are they always received in in this court in the sentencing process, or are there cases where you don’t see a victim impact statement?

Justice Adamson There are cases where I don’t see them. Particularly in the Commonwealth offences, like terrorism or foreign incursions. They’re rare. They’re very common in murder trials, but not invariable, but I think they’re a very, very important thing and of course in murder trials, it’s the survivors; it’s the family of the deceased who gives that evidence.

Peter McClellan And how does the judge use the material that’s in a victim impact statement?

Justice Adamson Well, in murder trials, almost not at all in terms of the sentence, because there’s no different value placed on different lives.

Peter McClellan It's a question that’s been debated, I think for some years.

Justice Adamson It has. But in other cases and these are matters I’ve seen in the court.

Peter McClellan Let’s go back a step. The assumption there is that the impact, when someone is killed, on the survivors will be as devastating for one family as it will be for another.

Justice Adamson Yeah, but also that if somebody say is a very isolated street person living on the street, the loss of their life is as harmful to the community and the fabric of our society as if some very prominent philanthropist were to die.

Peter McClellan So the public should understand that in that respect, every murder starts off from the same … the judge starts from the same position with respect to the loss of life.

Justice Adamson Yes that’s right.

Peter McClellan But it’s still important, is it not, for the family of the deceased to be able to express their grief and loss to the court.

Justice Adamson I think it’s hugely important because often I think it may be the only occasion where the victims of crime or the family or friends of the deceased, have an opportunity to express their loss. And one matter that one can do as a sentencing judge is to acknowledge that loss publicly and in the course of imposing a sentence and giving my reasons I always express my sympathy, and the sympathy of the Court to the family for the loss of life. And in my experience, and to my observation that gives some relief and some comfort to the people who are there.

Peter McClellan I think it was more than 20 years ago that the Court of Criminal Appeal began developing guideline judgments. Justice Hulme, can you help us to understand what a guideline judgment is and their role in sentencing?

Justice Hulme This was a step taken by the Court of Criminal Appeal before standard non-parole periods came into being in 2003. There was a concern I think. first of all, in the sentences being imposed for armed robbery offences. And so there was a feeling within the Court of Criminal Appeal, not only the judges but those who appeared before the Court of Criminal Appeal, that there was a need for a guideline as to what should be the range of sentence imposed in a typical case of armed robbery. And so the first guideline judgment was published by the court in which it identified a range of factors that might be found in a typical example of an armed robbery offence. A young offender with no or little criminal history armed with a weapon that might be capable of causing harm. Features such as that. It identified a number of factors and said that an offence that fell within that description should generally attract a sentence within a certain range. So that was a guideline that was available for sentencing judges to have recourse to, in addition to the maximum penalty for the offence to assist them in identifying the appropriate sentence for the case before them.

Peter McClellan And how many guideline judgments are there now?

Justice Hulme This has not continued so much. I think there’s three or four. There's a guideline in relation to armed robbery. There’s another one in relation to driving, causing death or grievous bodily harm. There was another one in relation to the offence of burglary break in and steal. But then standard non-parole periods came along and the the interest in pursuing guideline judgments being issued by the Court of Criminal Appeal, waned and there haven’t been many for quite some years.

Peter McClellan I think there was also, some criticism from the High Court.

Justice Hulme The High Court did criticise the approach that the New South Wales Court was taking in relation to this, essentially because there was a concern that the guidelines were too prescriptive and provided something of a straitjacket for sentencing judges and Court of Criminal Appeal modified its approach to the issue as a result of that.

Peter McClellan From what you’ve said as we’ve come through these different elements, it would seem that there’s a tension between instruction from the legislature and discretion in the hands of the sentencing judge. Is that right?

Justice Hulme I don't know that as a judge I have discerned a tension myself or amongst my fellow judges, but there is a tension. Sometimes legislation is passed to limit or somehow constrain the exercise of discretion in sentencing.

Judges are not intent on doing whatever they like. They are very mindful of what is just and appropriate in a particular case. But sometimes there can be a public interest in identifying features that judges should or may have regard to in sentencing and the government might intervene by enacting legislation that requires judges to take into account certain things. That legislation doesn’t lay down anything that’s mandatory but it certainly imposes guidelines, or guideposts for judges to consider.

Peter McClellan You mentioned valuable work of the Judicial Commission. I think the Commission has been responsible for, well since its early days I think, gathering statistics on sentences that have been imposed throughout New South Wales and publishing them so that they’re available for judges and practitioners. Is that a useful resource for a sentencing judge?

Justice Hulme It can be. There are really two things that I regard as valuable contributions to sentencing made by the Judicial Commission. There’s statistics and there’s also the summaries of cases from the Court of Criminal Appeal that the judicial Information research system provided by the Judicial Commission provides. The statistics give you a very broad assessment of what a sentence might be, having regard to the offence and certain attributes like the age of the offender, whether they’ve got a prior record and a couple of other features. Not very specific, and so if you enter some parameters like those it’ll tell you that for people who have those features, or a case that has those features, sentences in the past have been imposed of this type and you can see a graph which demonstrates a range. But that's a very broad indication.

Peter McClellan But it does give you a range from which you can start in terms of the history of sentencing for that offence.

Justice Hulme You can start from it. My preference is to end with it by assessing a sentence, and while I’m confident with that, I'll go to the statistic and say, well look am I in the range and it’ll confirm that'll make me feel more comfortable with my decision.

The other thing that the Judicial Commission has provided us with are short summaries of Court of Criminal Appeal cases where many hundreds or thousands of sentencing cases the court has considered are there so you can enter some criteria in relation to those cases and get very short summaries of the actual cases themselves and their features. And if you’re looking at sentencing, say for a drug supply case where the amount of drug imposed was a certain quantity you can look through similar cases where drug supply and that amount have been sentenced in the past, and you can very quickly determine a range that is close to the case you're considering. So there’s two really important things that the judicial Commission has provided.

Peter McClellan Yes, and of course like everything else in society over the years, we’ve increased the number of offenders, therefore increased the number of judges.

Going back 50 years, there would have been relatively few judges in the Supreme Court who were sentencing offenders. But today, how many are in the common law division of the court?

Justice Hulme There are something in the order of 22 judges, I think, in the common law division of the Court who exercise the criminal jurisdiction of the court.

Peter McClellan I assume without descending to deciding individual cases, but I assume there's a constant discussion between judges about sentencing patterns that have emerged and issues that have been raised in particular cases would that be right?

Justice Hulme We’re talking amongst ourselves all the time about cases that are before us. Cases that we have in when we are sitting on the Court of Criminal Appeal. We talk all the time and we learn from the experience of our colleagues.

Peter McClellan You have been listening to Justice Adamson and Justice Hulme, both judges of the NSW Supreme Court. This podcast Sentencing Explained is brought to you by the NSW Sentencing Council, the teacher’s guide to the podcast and further information about the Council are available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.

Peter McClellan: Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today is Judge Donna Woodburne, judge of the District Court in NSW. Before she was appointed a judge more than ten years ago, Judge Woodburne was a Crown Prosecutor. She has great experience in the criminal law and will talk about the rules judges must follow when sentencing.

Welcome Judge.

Judge Woodburne Hello, good afternoon.

Peter McClellan Judge, you've been now a judge of the District Court for how long?

Judge Woodburne 11 years.

Peter McClellan 11 years. And before that you were a Crown Prosecutor?

Judge Woodburne Yes, before that I was a Crown Prosecutor, as well then as a Deputy Director of Public Prosecutions. And then I became a Crown Prosecutor in 1997 and then in 2008, I took silk and then I become a Deputy Director of Public Prosecutions.

Peter McClellan And then on to the District Court. I should disclose just for the record that the Judge appeared before me many times when I was a Judge in the Supreme Court and we've discussed appropriate sentences for offenders on many occasions. But today we’d like to have the benefit of your experience as a judge of the District Court. Judge, first of all, is it difficult to determine the sentence for an offender?

Judge Woodburne It is enormously difficult. For example, yesterday. I heard a sentence hearing in a matter of dangerous driving causing death. And honestly, you cannot help but feel almost like you are sentencing one son for killing another.

Peter McClellan The tough times.

Judge Woodburne Very tough indeed, and every decision weighs very heavily.

Peter McClellan What types of cases come up for sentence in the District Court? Is there a general pattern as to the type of case?

Judge Woodburne Well in the District Court we deal with all serious criminal offences other than murder of course or terrorism. Many of the cases are very serious sexual assaults or very serious personal violence offences.

But of course there is the whole range of cases so, um, armed robberies, serious fraud, sexual servitude and slavery, that’s a new area of the law. There are very serious drug offences, those drug offences include importation offences and commercial supplier type offences. So there is a very wide range.

Peter McClellan In terms of the nature of the cases that you’re sentencing, am I right in thinking that a great many people have pleaded guilty and the judge’s role is confined to accepting that plea and then sentencing for the offence that's accepted by the offender?

Judge Woodburne Yes, that is correct. Many of the people I sentence have pleaded guilty. They may have indicated that plea in the Local Court and then the matter is sent to the District Court where the sentence is imposed. Other times the person will be found guilty after trial. That might be a trial by a judge or most often a trial by a jury.

Peter McClellan And in in pleading guilty, I suppose the lawyer has a role to advise the client as to what will happen, having pleaded guilty and how the sentencing hearing will proceed. Does the judge have anything to say at the beginning of that hearing or effectively are you just there to listen to what the parties have to say?

Judge Woodburne In essence to listen, but of course I must ensure that a plea of guilty entered in the Local Court is maintained in the District Court. And so I must ensure the integrity of the plea, if a question arises as to that.

Peter McClellan Otherwise, what happens at a sentencing hearing? Can you just tell us all just what’s the process?

Judge Woodburne All right, well the process is that the relevant parties must appear before the Court, so the prosecutor must appear, so must the person who stands to be sentenced. Now that person is entitled to have legal representation, so their solicitor or barrister will appear with them. Um the court is generally open as well, so members of the public may sit in the court room. That includes the victim of any offence. There are circumstances where the court may be closed, but those circumstances are quite limited.

Peter McClellan What sort of circumstances would lead to the closure?

Judge Woodburne There … well if there was a child being or a person who was a child at the time of the commission of the very serious offence, and it must be to be one coming before the District Court, the public would be excluded from that hearing.

It may be where it is a sexual assault matter and the victim of the particular matter may have some role to play in the proceedings, the court would close for that portion of the evidence.

It may also be closed for a portion of the evidence where in very limited circumstances there is sensitive material to be put before the court, such as where a person provides assistance to police. It may be a matter of their safety, particularly if they're going into custody that that material not be disclosed.

But they’re very limited circumstances, so ordinarily all of those people would be in the courtroom and then the matter would proceed.

Peter McClellan And if you’re sentencing after there’s been a trial by jury, but with the jury and a conviction follows, are the jury members allowed to stay and sit in the Court hear the sentencing process?

Judge Woodburne The jury members are allowed to stay, but the practical reality of the situation is that after the verdict is returned, the jury is discharged, they’re free to go on their way. And usually the sentence proceedings don’t start until another day, that is when everyone has had a chance to gather the material that they will need to present to the court and sentence.

Peter McClellan When the parties are assembled in the courtroom, the prosecution start or does the defence start? Who goes first?

Judge Woodburne Yes, the prosecution does go first. The prosecution will provide the court with very necessary and basic material upon which the Court will need to understand what the charge is. The prosecutor will present the facts in the matter. They are usually agreed with the defence. That is, where a person has pleaded guilty, their legal representative has usually had some say in determining what facts might be put before the Court.

Where there is a conviction after a trial, it’s slightly different in that the facts fall to the judge to determine. But in any event, the prosecution will present the facts. The prosecution will also present the criminal history if the person does have one. And the prosecution will present the court with any other document that might be relevant. For example, a victim impact statement.

Peter McClellan Now you say the judge will determine the facts if there’s been a jury trial. Do the parties know what the facts will be when they come to address in relation to sentence or is it just a matter that they'll find out at the end, what the judge decides?

Judge Woodburne Well, the Prosecution Guidelines in facts do direct prosecutors to, in effect, prepare some draft facts that they consider the judge will ultimately be asked to find on the sentence, that is facts that have emerged during the trial, so it won’t be a surprise to the parties. Of course, I will have been present during the trial and so they will have a very good idea of the evidence that has been heard.

Peter McClellan So that the prosecution tell the judge what the facts might be and what the criminal history might be, do they, does the prosecutor take any other role at that stage of the proceedings or is it then over to the defence?

Judge Woodburne At that stage it is over to the defence.

Peter McClellan And what does the defence do typically in a sentencing hearing?

Judge Woodburne Well, the defence has the opportunity to present evidence. They’re not obliged to, but of course it is very much in their interest to do so on behalf of their client. And that evidence usually concerns the personal circumstances of the offender, so it might comprise a report from a psychologist or psychiatrist as to the person’s mental state, either at the time they committed the offence, or indeed at the time of the sentencing hearing.

It might also comprise materials such as references from an employer from family or friends, material which might reflect on the person’s character or their rehabilitation.

And sometimes oral evidence might also be called, so the offender might enter the witness box and give some evidence about their personal history and quite often take the opportunity to apologise for the offence that they have committed and the harm that they may have done to the victim of the offence, or indeed to the community.

Peter McClellan Do many offenders take that course giving evidence?

Judge Woodburne I find that fewer people are taking that opportunity, so it used to happen quite a lot, but the shift has definitely been towards documentary evidence, and so instead of the offender personally telling the court that they’re sorry for the event, that expression of remorse is more commonly found in the report of a psychologist, for example.

Peter McClellan Yeah, so it comes from a document.

Judge Woodburne Yes.

Peter McClellan Which has been produced by a third party who’s spoken with the offender.

Judge Woodburne That’s right.

Peter McClellan Now that's the defence material. Do the parties then make submissions to the judge and can you tell us, do the party suggest what the sentence might be?

Judge Woodburne Both parties are invited to make submissions, but there are limits to those submissions. The submissions are usually directed towards the facts of the events and the level of seriousness of the events. That’s important, and each party does wish to be heard on that issue initially.

Submissions are also usually directed to the subjective circumstances of the offender. Particularly of course by the defence representative who may wish to point out to the Court the mitigating factors, being those factors that perhaps affect the sentence and make it less than it would otherwise be.

Peter McClellan Well, I think to now turn to the, how the sentence itself is worked out, every offence which is a statutory offence carries a maximum penalty provided by the Parliament.

Judge Woodburne Yes.

Peter McClellan And I assume that’s the starting point for the judge in thinking about what sentence might be imposed?

Judge Woodburne Yes, it is. It’s, it’s, it is a guidepost and one has to keep that in mind at all stages of the sentencing process.

Peter McClellan And then I think the factors relevant to the sentence, although not exhaustively stated, are captured in section 21A of what’s known as the Crime Sentencing Procedure Act?

Judge Woodburne Yes, that’s correct. Section 21A does list what are called aggravating factors and mitigating factors.

Peter McClellan We’ll all get probably a little bit lost if we try and go through each limn of section 21A, but just generally what sort of things are aggravating factors?

Judge Woodburne Well, aggravating factors are factors which have the potential to increase the level of seriousness of the events. Firstly, for example, where an offence is premeditated, that's likely to be more serious than an offence that is done on the spur of the moment. So in a very basic sense, some matters make an offence more serious than another offence.

Peter McClellan So if an assault was a planned assault, for example, on someone, as opposed to a spontaneous engagement in a fight in the street. Would that, would that make the first, the planned one, more serious?

Judge Woodburne Yes, yes, generally it will.

Peter McClellan And may then have a greater sentence than the other offence.

Judge Woodburne Yes, it potentially can increase the sentence. Of course, it’s just one factor amongst many that must be taken into account.

Peter McClellan Any other aggravating factors stand out particularly that we should mention?

Judge Woodburne One aggravating factor that of course everybody would regard as a significant one is where an offence is committed in the presence of a child. And that is a matter that is properly taken into account in increasing the level of seriousness of the event.

Peter McClellan Any others that stand out? I know they’re all serious, but any others that stand out?

Judge Woodburne Certainly where there is the use of a weapon that will increase the seriousness of an offence or where substantial harm has been caused to a victim of an offence, that is likely to increase the seriousness of the offence.

Peter McClellan That’s on one side of the equation, aggravating. What’s on the other side of the equation?

Judge Woodburne Well, on the other side of the equation are mitigating factors, factors which can potentially lessen either the seriousness of the offence or lessen the sentence that is imposed because it's relevant to the personal circumstances of the offender. So matters which might lessen the seriousness of the offence would include where the offence is committed, under duress, that is pressure from someone else, that might be the case in a drug matter. Or where an offence is provoked, so perhaps in an assault matter, the person who committed the offence might have been provoked into committing it.

And so whilst they’ll be guilty, it’s only fair that that is a matter to be taken into account. There are other mitigators which are mitigating which have a very big effect on the determination of the penalty. For example, where someone is remorseful for committing the offence, where they are a person with no criminal history, where they are a person who has good prospects of rehabilitation, they’re matters which bear on the sentence.

Peter McClellan And the personal circumstances, perhaps the upbringing or hardship at some stage of the offender’s life, does that feature as a mitigating factor or is that separate from the statutory construct?

Judge Woodburne It is separate from the statutory construct, but it’s an important mitigating factor to be taken into account in certain circumstances, where a person has had a deprived upbringing, indeed where they themselves as children have been exposed to, an environment that is full of alcohol or violence, that is relevant because it bears on their own moral culpability for their offending.

Peter McClellan Moral culpability is something that not everyone may understand. What do we mean by moral culpability?

Judge Woodburne Well their responsibility for their offending. A person who’s been brought up in those circumstances simply may never have developed the resources that a person who has had a good upbringing may have developed in resisting impulse, in resisting temptation or crime.

Peter McClellan This is of course a sore point very often in the community, where a sentence which proves to be controversial is imposed, it’s often said by commentators, well the judge was overly influenced by the poor offender’s background or his deprived childhood and that’s made the sentence too light. And the comment will often be made well, what’s his or her background got to do with the sentence, they’ve committed a particular sort of crime, they should pay the same penalty. How the judges view those sorts of remarks?

Judge Woodburne Well the judges of course are very sensitive to the fact that there are a complex number of factors that the judge is required to take into account and balance and determine a sentence that has proper regard to all of those factors. The situation is that the court, in imposing a sentence, must have regard to the purposes of sentence. Now some of those purposes are to do with retribution and deterrence. A person must be made accountable for the offence they’ve committed. The sentence must be one which operates to deter others and to deter the offender from committing offences. But judges are also required to have regard to the other purposes of punishment, which include, for example, rehabilitation, and the protection of the community. So sometimes the protection of the community is best ensured by imposing a sentence which allows the person to have the necessary rehabilitation and support during rehabilitation that can be offered to them. If that person can benefit from that and end up because of that, or with that assistance, leading a more constructive and crime free life, then the safety of the community will be protected.

Peter McClellan Now I think when you come to define the sentence for an offender, having worked out your aggravating and mitigating factors and having presumably a number in your head, you’ve got to know also, look at the question of parole. Now parole is often a difficult concept for people because it appears like the judge again may be being a bit soft by allowing someone out of prison if they’re going to prison significantly before they’ve completed their full term. Can you help us to understand the nature of parole and its purpose?

Judge Woodburne Yes. In this sense when I’m required by law to impose a sentence, where I am imposing a sentence of imprisonment, that has a certain structure to it. So the sentence must be comprised of a non-parole period and a balance of term and the balance of term is the period during which the person usually spends on parole.

Peter McClellan And parole is what? What does parole mean for a person?

Judge Woodburne Parole is the balance of the sentence during which they are at liberty and not being held in custody. Sometimes that person will be required to abide by a whole series of conditions set by the parole authority, so that is not something that as a sentencing judge I have control over.

Peter McClellan So when you’ve, when you sentence and impose a non-parole period with a period of parole, that’s the end of the judge’s role, is it? It then goes to the parole authority to manage that person thereafter?

Judge Woodburne Yes, that’s correct.

Peter McClellan I think there’s another concept in the sentencing world which relates to parole or non-parole periods, which are, has to do with the ratio between the parole period and the head sentence and it’s called special circumstances. Can you help us to understand what special circumstances might be in relation to parole?

Judge Woodburne Yes, well, special circumstances is a concept in effect that is relevant to how the sentence is structured. The law imposes a constraint on the sentencing discretion that the judge has by providing that when a sentence of imprisonment is imposed, the balance of the term must not exceed the non-parole period by one third, unless the court finds special circumstances.

I might illustrate that because it might be easier to understand. If I have determined to impose a sentence of four years, the law provides that the non-parole period would be three years and there would be a balance of term of one year. That’s because the balance of term must not exceed one third of the non-parole period for the sentence. However, I might decide there are special circumstances for the balance of term, that is, the period spent on parole being more than one third of the non-parole period of the sentence. And to give an example of that situation, perhaps the person has an entrenched drug problem. Once they are released from custody, adjusting to a crime-free life will not be easy if, particularly if they have insufficient assistance or insufficient assistance for a reasonable period of time.

So in those circumstances I might consider that it would be of benefit to the person and therefore to the community if the person is supervised over a more lengthy period of parole. But I can only do that if I decide there are special circumstances, and once I decide that, then I would increase the balance of term of the sentence. That does, of course, reduce the non-parole period of the sentence so I must always ensure that, in doing so, that the non-parole period of the sentence still adequately represents the seriousness of the offence, taking into account all relevant matters.

Peter McClellan This does sound like a difficult process.

Judge Woodburne It is. It is very difficult.

Peter McClellan Let’s get even more complex. We’ve been talking about people who the judge decides must go to jail.

Judge Woodburne Yes.

Peter McClellan But I think there’s a number of other ways in which the court can impose a sentence without requiring someone to go into custody. Can we just have a look at what they might be? What are the options that may be available to a sentencing judge short of putting someone in prison?

Judge Woodburne Well, in relation to that it is important to note that the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty is appropriate. So, in every sentencing decision, I must consider all possible alternatives before I could ever impose a sentence of imprisonment.

And there are a number of alternatives open to the court. These are set out in the legislation, the Crown Sentencing Procedure Act. The court can make orders that do not involve the recording of a conviction, and there are three types of order in that regard. There’s an order directing that the charge be dismissed, an order discharging the person under a conditional release order, an order discharging the offender on condition that the offender enter into an agreement to participate in an intervention program. The other orders the court can make …

Peter McClellan Just pause for a moment. In what sort of circumstances would the court make an order in those terms?

Judge Woodburne Well, because the each of those orders involve not recording a conviction, the reality is that those orders would be made in cases where the offence is not particularly serious in the scheme of District Court matters. So the offence may be a less serious one, the offender would have to or is more likely to be a person with no criminal history and the offender is likely to have compelling personal circumstances.

Peter McClellan And would it be right to think that many young people or younger persons, not young people as such, but younger offenders, may fit into that category?

Judge Woodburne Definitely.

Peter McClellan And just so we understand, if a judge takes that course, that would mean that that person, although they may have committed an offence, doesn’t have a criminal record, is that what happens?

Judge Woodburne That’s absolutely correct.

Peter McClellan Right. So there's no blemish on their on their worksheet, so to speak, in life?

Judge Woodburne That’s right.

Peter McClellan But what happens if they don’t meet the conditions which the judge imposes?

Judge Woodburne If they don’t meet the conditions, they are liable to be called up before the Court.

Peter McClellan With what potential consequence?

Judge Woodburne With the potential that they will be resentenced and at that point the judge will have open to them all of the options that were originally available.

Peter McClellan In cartoons and other forms of entertainment, one often hears the concept of the last chance. The judges handing out the last chance. Is it right to think of this approach to the sentencing of an offender as being a last chance and it’s not taken then the chance may disappear?

Judge Woodburne That’s right, and the last chance is not something that’s enshrined in the legislation, but in practical terms, the court takes the opportunity to make known to the offender that they must comply with the conditions of release, if there are those conditions, otherwise they will be liable to be recalled to the court.

Peter McClellan Do judges use the expression last chance?

Judge Woodburne I don’t but others might. To me last chance might apply where an offender has had a number of other chances before the court.

Peter McClellan Right, so last chance in your terms would mean, the end of the line?

Judge Woodburne In effect, yes.

Peter McClellan Now, what other options are then available to the sentencing judge?

Judge Woodburne Well, the, other orders the court can make do involve the recording of a conviction. So those other orders are a conviction with no other penalty. Or a conviction and a fine, or a conviction and a conditional release order discharging the offender, or a conviction and a community correction order.

Peter McClellan Well, the last two I take it impose obligations on an offender. What sort of obligations flow from orders made in those terms?

Judge Woodburne Well, those obligations in general terms, have two basic conditions attached to the orders that are made by the court. The offender must not reoffend, and they must appear before the court if called upon to do so. The court, however does have available to it, and indeed must in certain circumstances attach other conditions to the particular order. So those conditions can include matters such as a requirement to submit to supervision by community corrections officer, a curfew, a community service work order of no more than 500 hours, a requirement that the person participate in a rehabilitation programme or receive a treatment, a requirement to abstain from alcohol or drugs, a requirement not to associate with particular people or a requirement not to go to a particular area. So they’re the conditions that generally attach to such orders. The court doesn’t impose all of them, of course.

Peter McClellan Judge, I think there’s another option that’s available when considering the appropriate sentence, and that's an intensive correction order.

Judge Woodburne Yes, that is.

Peter McClellan Can you tell us what that’s all about?

Judge Woodburne Yes, and a court that has sentenced an offender to imprisonment in respect of one or more offences may make an order directing that that sentence be served by way of intensive correction in the community. There are constraints upon that because such an order is not available where the term of imprisonment exceeds certain limits. The sentence of imprisonment must be two years or less for a single offence, or an aggregate sentence of three years or less for multiple offences. So that operates to constrain the availability of that order.

But in practical terms, what it means if such an order is made, is that instead of going to jail to serve the sentence of imprisonment, the person will serve their sentence free in the community, but subject to the supervision of community corrections. And subject to certain conditions.

Peter McClellan And I assume if they breach again, as we discussed earlier, if they breached the conditions, they come back before the court. Is that what would happen or not?

Judge Woodburne The system operates slightly differently because where a person breaches an intensive correction order, in fact, the parole authority deals with that breach.

Peter McClellan You often hear of the concept of the range of appropriate penalty. How do judges go about actually identifying the right number for a particular offender. Do you look at past cases? Do you look at statistics that are collected by the judicial Commission or the Bureau of Crime Statistics? What do you do to get the right number?

Judge Woodburne I look at a combination of material. Of course, I always bear in mind the maximum penalty that is specified for the offence or any standard non parole period. But I also have regard to other cases. There are generally a range of other cases that either I have dealt with, or many other judges have dealt with, and I’m familiar with those because of course I read about them. Particularly where someone has appealed to the Court of Criminal Appeal, the Court of Criminal Appeal will say whether a particular sentence is manifestly excessive or manifestly inadequate. So I have regard to those cases that are made known to me either by my experience or where the parties bring those to my attention. There are also statistics that are available. The Judicial Commission collates statistics for offences, for sentences imposed in the District Court and that will give a very broad range of the way in which the sentencing discretion has been exercised before. In some cases, it’s possible to have regard to a guideline judgement. And those guideline judgments, have been in the past particularly useful because they have identified factors that are relevant to the determination of an appropriate sentence.

Peter McClellan I think they’ve been slightly controversial along the way.

Judge Woodburne Well, well, they have. I mean, none of the information I’ve just referred to dictates the number or the length of the sentence. But it is useful to have regard to other material in the form of guideline judgments or previous sentencing decisions, because it’s usually in those decisions that the relevant considerations are identified, not the correct number for the sentence because there is no single correct number for a sentence.

Peter McClellan And I think at the end of the day, what courts have said is that the ultimate process can be described as instinctive synthesis, which is the judge bringing all these factors together. Is that how we should understand that somewhat dense phrase?

Judge Woodburne Absolutely, the objective factors, the subjective factors, the principles of law, the maximum penalty, all those factors have to be balanced and by process of instinctive synthesis, a sentence is arrived at that hopefully takes due account of all of those factors so that the sentencing in the end is just and appropriate for the particular offence and the offender before the court.

Peter McClellan Judge, in the course of a year, this may be difficult question, how many offenders would you be likely to sentence, in the course of an ordinary year?

Judge Woodburne I’d have to calculate that, but can I, can I say when I’m running a trial, usually every Friday afternoon I will be sentencing someone so I will set aside Friday afternoons to sentence in person. Of course, when I’m not sitting in a trial for one reason or another, then during the course of a particular week, I will get a variety of matters, some of which will be sentences. So I try not to list too many sentences on the one day, but the reality is sometimes you have to sentence multiple people on the day.

Peter McClellan Say three or four?

Judge Woodburne Say three on the day. Of course, sometimes there may be co-offenders, so if there are six co-offenders, even though it’s the one sentencing proceeding you might be sentencing six people.

Peter McClellan And at the end of the sentencing hearing, when both parties have made their submissions and all of the facts are before you, do you then proceed straightaway to impose the sentence? Or do you adjourn and take time to reflect on the appropriate sentence? How do you go about that part of the task?

Judge Woodburne Because I am sentencing people quite often for very serious offences, and often for multiple offences, I will adjourn and consider the material before I give a judgement on sentence. It will depend, however, because sometimes it’s imperative to deal with the matter very quickly. For example, where a person, for one reason or another is in custody and the sentence I consider I would likely impose is less than the period of time they have spent in custody. Clearly in that circumstance …

Peter McClellan Not fair to keep them in jail.

Judge Woodburne No, I would move to sentence them very quickly.

Peter McClellan You often read in the paper at the end of a trial where the offender is convicted, but the offender has been on bail during the course of the trial, that the judge will decide to bring the person into custody straight away at the end of the trial.

Judge Woodburn Yes.

Peter McClellan Why, why is that done when they’ve been free for the whole of the trial? But they’re now placed in custody straight away?

Judge Woodburne There are a range of factors the Court is required to consider, and they’re set out in the Bail Act. But once a person is found guilty after trial, the circumstances change. And one reason for that is where it’s a very serious matter the obvious and very or most likely outcome is that that person will be imprisoned.

Peter McClellan Finally, do you ever wish that you’ve been a civil lawyer instead of a criminal lawyer?

Judge Woodburne No, that’s [laughter] that’s not my wish. I mean, I’ve had some experience in that area in the past before going into criminal law, and that was an adventure for one reason or another. A career in the criminal law has been incredibly interesting because every single day, I see so much of life, so much of people’s backgrounds, there’s just an endless amount of information that is never boring. It’s been a very great privilege every day to be a part of the criminal justice system. It is incredibly challenging and demanding. Of course, it’s a great responsibility and that responsibility can weigh very heavily.

Peter McClellan Well Judge, can I just say on behalf of the community I’m sure everyone thanks you for the contribution you make to the system, but can I just thank you for your contribution to the Sentencing Council podcast series today.

Judge Woodburne Thank you very much.

Peter McClellan You have been listening to Judge Donna Woodburne, a judge of the NSW District Court. This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening. 

Peter McClellan Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan, and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today is Robert Hoyles, the Director of Crime for New South Wales Legal Aid. He is going to talk about the role of Legal Aid lawyers and the contribution they make to sentencing.

Welcome Robert.

Robert Hoyles Thank you, thanks for having me.

Peter McClellan Robert, I mentioned, then you’re the Director of Crime for Legal Aid. But what does that involve?

Robert Hoyles So, as the Director of Crime, I supervise Legal Aid’s criminal law, practice in New South Wales. That is about 300 lawyers that are based across New South Wales in 26 different Legal Aid offices. Legal Aid is a quasi government organisation. It’s created under a piece of legislation, and it’s designed to provide legal help to people who really need legal advice. We actually provide help across criminal law, family law and different types of civil law. Civil can include things like discrimination, Centrelink, housing disputes as well as a whole raft of issues that arise from time to time and the idea at the end of the day is to help people who are not well funded and wouldn’t be able to get legal help without our assistance.

Peter McClellan How many of your people are full time involved with the criminal law?

Robert Hoyles About 300 lawyers.

Peter McClellan Three hundred involved in crime, so how big is the total organisation?

Robert Hoyles 1400 people, in total.

Peter McClellan Funded by government?

Robert Hoyles Funded by government. We also work in partnership with the private legal profession. So, on top of that, we pay private practitioners, private lawyers to be able to provide services in places that we can’t provide it ourselves.

Peter McClellan And do your lawyers appear in trials for people who’ve been accused of committing crimes?

Robert Hoyles Yes they do. They appear … We have solicitor advocates who appear as the advocates in court, effectively playing the role that a barrister would play. We also have solicitors who both instruct barristers as well as solicitors who appear on their own.

Peter McClellan And I assume there are some eligibility criteria that people must meet before Legal Aid can offer their services.

Robert Hoyles Absolutely. Legal Aid has a means test which limits who we provide legal aid for based on what their means are. So based on how much money they earn or what assets they have. We also have guidelines about the types of cases that we represent people in. So, where we would almost always represent someone for a murder case, we may not represent everyone for every parking ticket that they have, and that’s because it’s important that we spend taxpayer’s money responsibly and that we don’t allocate the same resources to every case without making that assessment.

Peter McClellan We know of course, that most criminal trials occur in the Local Court. Trials of matters on indictment of course, in the District Court and the Supreme Court. I assume therefore that most of your time, most of your lawyers’ time is spent in the Local Court.

Robert Hoyles That’s right, there are about 155 Local Courts in New South Wales. We provide services in all of them in some way or form, either through in-house Legal Aid lawyers, which provide for about 2/3 of those as well as private practitioners where we pay them to appear for people who need help. We have what’s called a duty service where we provide short advice on the day and representation in court. We also provide grants of legal aid for people who need ongoing assistance who might require representation at a summary criminal trial in the Local Court.

Peter McClellan So if someone was to go to a Local Court on any day of the week, would there be a Legal Aid person at that court?

Robert Hoyles So not necessarily every day, but on the list day, so when the matters are normally listed in one big list, we will normally have a duty lawyer there for every list day in every court across the state. We also provide representation for people who are refused bail. What we call fresh custodies every day in every court. So, we represent people who are arrested overnight or throughout the course of the day, who were brought before a court during the course of the day.

Peter McClellan And the people whose matter is in the list on the list day, how do they know that there’s a Legal Aid person at the court?

Robert Hoyles That’s a great question. So, we have a lot of signage. We also put out a lot of communications to try to tell people in relation to courts engaging them from the time at the police station sometimes, engaging them from the time of arrest sometimes, but also providing that service at court where we have a room in the courtroom where people are directed to if they ask registry staff.

Peter McClellan So a sign on the door, as it were – Legal Aid.

Robert Hoyles Yeah, in some courts they can put their name on a list that we have there saying that they want help and we’ll call out their name.

Peter McClellan And what about someone who’s arrested by the police and taken down to the police station say at 11:00 o’clock or 12:00 o’clock at night. Can that person access Legal Aid at those hours?

Robert Hoyles So they don’t access it at the time of arrest, and that’s because sometimes police make a decision not to charge someone at the end of the day or to release someone on police bail at that point. In other words, they’re required to come back to the Local Court at a later date and we will represent them at that later date. We won’t represent them at the police station.

Peter McClellan If they’re taken to the police station for questioning on suspicion, does Legal Aid have any capacity to assist at that point in time?

Robert Hoyles Not at that time. Again, the limited resources we have mean that we don’t provide the advice at the point of charge. There are some limited circumstances in which we do. People will be put through to Law Access, for example, which is now part of Legal Aid, to provide, and get provided basic custody advice, being advised about their rights in effect at the moment of their arrest.

Peter McClellan I assume over the telephone.

Robert Hoyles Over the telephone, but not in person.

Peter McClellan So they’re advised about their rights or their right to silence, and what they can do at that point, where they are first confronting the law.

Robert Hoyles That’s right.

Peter McClellan And that person assuming they don’t get bail that night, will they have access to a Legal Aid lawyer the next day?

Robert Hoyles That’s right, so at that point they’re required to be put before a court as soon as practicable, and when they’re placed before a court, Legal Aid will be there to represent whoever has been effectively arrested overnight.

Peter McClellan And if at that point the crime is, let’s say, serious crime, so bail is denied, the person remains in custody. Do they continue to have access to a Legal Aid lawyer from that point on? Or how does the system work?

Robert Hoyles So they apply for Legal Aid at that point, and depending on their means and things like that, most people in custody will be represented by Legal Aid. What will happen is that we represent everybody on the first bail appearance that first day.

Peter McClellan Irrespective of means and so on.

Robert Hoyles Irrespective of means. But in effect later on we will carry out those tests and make those enquiries to check that we’re spending money responsibly. But yeah, our priority at that point will be to assist them in advancing their criminal case.

Peter McClellan Now, someone facing a serious criminal charge is likely to prefer to have the same person dealing with their case all the way through the system. Is Legal Aid able to achieve that?

Robert Hoyles In some circumstances, yes. And in some circumstances, no. For really serious offences which now fall under the early appropriate guilty plea reforms, which was a package of legislation released in 2018, one of the main planks of that was continuity of legal representation. So, we were funded to try to keep the same lawyers in matters from start to finish, so that if it is one of those serious categories of matters, we really try very hard to make sure that they do get the same lawyer, not necessarily from that first bail date, but certainly after that first bail date until the matter is concluded. We do what we can to keep the same lawyer in it throughout. And if a barrister is instructed to appear, the same barrister throughout.

Peter McClellan Right, so if it’s a serious crime and the person is in custody and they don’t have excessive means, as it were, then Legal Aid will be there to help.

Robert Hoyles That’s exactly right.

Peter McClellan Now let’s go then the courtroom. You say that Legal Aid is there on the list day. What are they able to do for someone who is before the court on that day?

Robert Hoyles So they start off by having a conversation with the defendant about why they’re in court. They obtain the court papers to understand what charge is holding them or has brought them before the court and they start by taking a little bit of a background history of that client in order to get an understanding of what brings them before the court and what the issues or challenges are.

If they’re in custody, the main priority will be whether or not they want to seek bail or a release from custody and that means identifying what the risks are to the community if they were released, and how best the lawyers can assist in ensuring that those risks are mitigated or reduced, by way of identifying a place that they could live, identifying whether or not there are particular concerns that need to be addressed through different conditions the court can impose.

Peter McClellan And I assume the prosecution at that stage is represented by a Crown police prosecutor.

Robert Hoyles That’s right, so, effectively a police prosecutor who is a police officer who is tasked with representing the police’s interest in court.

Peter McClellan Do your lawyers have discussions with the police about what should happen in relation to particular people who are before the court?

Robert Hoyles Absolutely. We have ongoing discussions, but ultimately what happens is a decision for the court. So, we will have a constant communication with the prosecution at court. That’s for the purpose of trying to obtain the information that we need to best help our client and to understand the background circumstances around what’s occurred.

Peter McClellan Now, it’s not uncommon that someone arrested in these circumstances may not have a suitable place to live or suitable means to support themselves. There can be all sorts of issues that arise at the initial stage, some of which can be resolved over time. Do your people remain in contact with someone who was denied bail on the first occasion? Or does it pass off to someone else to look after that person?

Robert Hoyles It depends. Either can happen, but absolutely we continue to stay in touch. So, if we represent the client at first instance and they’re eligible for legal aid, we will continue to represent them, and that will mean that even if they are refused bail in the first instance, we might be looking at what circumstances change that might give rise to a further bail application. Or potentially going to the Supreme Court and making another bail application there.

Peter McClellan Let’s assume that the person is denied bail and remains in custody and a trial date is fixed. Let’s say it’s an indictable matter and a trial date, is fixed in the District Court. That of course, will be some months after they’ve been arrested and taken into custody in the normal course. What does Legal Aid do in relation to preparation for that trial?

Robert Hoyles Yeah, so there’s a long process now in the Local Court because of those reforms, to try to encourage negotiation between the parties. That involves a brief of evidence being served. The prosecution certifying the charge. So, deciding again what the charges should be, based on the evidence that becomes available, and then a mandatory case conference in which the prosecution and defence will meet either by way of audio-visual link or in person to talk about whether or not there’s any scope for negotiation.

Peter McClellan So this is your lawyer, Legal Aid lawyer, meeting with the Crown prosecutor, that’s the barrister appearing for the Crown.

Robert Hoyles That’s right.

Peter McClellan And they may do that over the screen or they may meet in person.

Robert Hoyles That’s right.

Peter McClellan With a view to doing what?

Robert Hoyles With a view to either finding an appropriate negotiating position that both parties will agree on about the charges. So, for example, if you’re charged with murder and the defendant says I would plead guilty to manslaughter, which is a backup to murder, whether or not the Crown would accept the plea of guilty to manslaughter instead and drop the murder charge. So that would be the kind of negotiation that could happen at a case conference.

Peter McClellan And is there more than one conference likely or just the one?

Robert Hoyles There’s one required by law, but there can be more than one, and even if they don’t necessarily agree to resolve the case, there can still be useful discussions that occur. For example, it might be that the parties decide what is in dispute and limit what’s in dispute, which means that the time taken to run the trial and the cost of running the trial is reduced. But that doesn’t happen in every case.

Peter McClellan Now this conference is occurring while the matter is still in the Local Court?

Robert Hoyles Yes, it’s required to happen in the Local Court, and once it’s completed, the parties actually file a document with the court called a Case Conference Outcome Certificate and what that document does is it records any offers that were made by the prosecution or the defence, whether they were accepted or not. And the reason for that, is that there is a discount that you get on your sentence in certain circumstances. So, for example, if the defendant said I would plead guilty to manslaughter and the Crown says we will not accept that, we’re still going to proceed with the murder charge. But then after the trial, the jury actually finds the defendant guilty of manslaughter instead of murder, the defendant gets a 25% discount.

Peter McClellan Gets the full benefit of the statutory discount.

Robert Hoyles Exactly, gets the full 25% discount as if they had entered that plea in the Local Court.

Peter McClellan So we conclude our conference. Maybe we have one or two or more meetings. And what then happens to the matter?

Robert Hoyles So assuming that the matter is still running as a trial, so the prosecution and defence can’t agree on a resolution, it will then be committed to the District Court which is moved from the Local Court to the District Court. Or the District Court was the example you gave, but if it was a murder, for example it would be moved to the Supreme Court. And at that point, the parties prepare for trial which involves briefing counsel if counsellors are not already briefed. Although normally a barrister, counsel, would already be briefed on both sides.

Peter McClellan Would that counsel have been briefed by Legal Aid so as to act at that early conference?

Robert Hoyles In about half of matters, yes.

Peter McClellan But otherwise, after the conference and when the matter’s referred to the higher court, that’s when you brief counsel if required.

Robert Hoyles That’s right.

Peter McClellan Do your advocates appear in the District Court, in contested trials?

Robert Hoyles Yes.

Peter McClellan And what about the Supreme Court?

Robert Hoyles Our advocates have guidelines that limit the types of matters they can appear in, and normally the expectation would be that the types of charges that go to the Supreme Court, we would brief a barrister.

Peter McClellan And I take it then your advocate or the barrister you’ve, briefed appears in the usual way. And there will be a contest.

Robert Hoyles Yeah.

Peter McClellan And I assume that before that contest, the barrister or advocate will have considered the evidentiary issues and what witnesses to be called and most importantly whether to call the client?

Robert Hoyles Yeah, absolutely.

Peter McClellan What are the parameters for that decision?

Robert Hoyles Calling a client at a trial? I think that’s a very, very difficult question that turns on individual cases. So, people who aren’t very experienced with the system might think that it would make sense that you would always call your client because they are giving evidence as to the other side of what occurred. But it’s really important to remember that in a criminal trial, the onus falls on the prosecution to prove all of the elements of the offence beyond reasonable doubt. The defendant usually doesn’t have the onus to prove anything, and so it isn’t really necessarily for the defendant to say what they say happened necessarily, in every case. In some cases, it is not in the defendant’s interest to give evidence about what it is that they say happened. In other cases it would be very important that they say what they say happened.

Peter McClellan In what sort of case would it be important for the client?

Robert Hoyles I think in circumstances, for example, where the client is saying that they have a defence like this is not a great example, because it’s not technically a defence, but for example someone acting in self-defence might want to give an explanation as to why they responded the way that they did, because the court is going to need evidence as to why they reacted the way that they did. Why what they did was necessary. Why what they did in self-defence was a proportional response to the threat that they were faced with.

Peter McClellan What about sexual assault cases? Is it important to call your client in those cases?

Robert Hoyles I think in the ordinary case, yes. But I think it does depend on the evidence. I mean, I think it’s really hard to answer that type of question completely in a vacuum. I think in a case where the evidence is one witness, effectively where the complainant has given a version and the defendant has given a version, that there can be real value in both versions being put before a jury. In saying that, there are some cases where the evidence, where there may be reasons not to call your client to give evidence. It may be that, for example, they were interviewed by police at the time they were arrested and have already given a full version of everything that occurred and that there is really nothing to be gained for the defendant by getting in the witness box and saying it again and being subject to cross examination.

Peter McClellan Of course, this issue about the right to silence, which is what we’re talking about, has proved controversial in some jurisdictions, and I think some changes have been made in the United Kingdom in relation to the way you interface with the police when arrested, and what relevance that has to the outcome of the trial, but we haven’t moved down the same path in Australia.

Robert Hoyles We introduced, a number of years ago an amendment to the Evidence Act section 89A, which introduces a special caution. The form of words that apply in that caution are very similar to what occurs in the UK, in the sense that a defendant can be told in certain limited circumstances that it may harm their defence if they do not mention when questioned, something which they later rely on in court. But one of the preconditions for that is that a lawyer who’s acting for the client is physically present at the time that the caution is given. That almost never occurs in the Australian context. It occurs very easily or far more easily in the UK context. They don’t necessarily have our challenges with geographical distance, and their scheme is set-up in a way that I think probably more greatly supports being able to have a lawyer at 3 o’clock in the morning at a regional police station in a way that we would find very difficult to achieve in Australia at Walgett or Lightning Ridge or Broken Hill any night of the week, 24 hours a day.

Peter McClellan Well, that issue probably will remain one that’s controversial going forward.

Robert Hoyles Absolutely.

Peter McClellan Now, in our hypothetical case, there’s a trial. And there may be an acquittal, in which case the client is free to go. But there may be a conviction in which case minds have to turn to sentences. It may also be that the client has decided to plead guilty either before trial or at the trial. How do your people go about helping an accused person who is found guilty, after trial? What do you do to prepare for sentence, or the sentence hearing of that person?

Robert Hoyles That’s a great question. In some ways that is far more challenging than representing a defendant who has pleaded guilty and accepted responsibility at an early stage. Because after a trial, they have maintained up to that point that for one reason or another, they are not guilty and they’ve been found guilty by the court. That means that sometimes that defendant remains saying, despite what the court has found, I still say I’m not guilty. And that means that running a sentence process isn’t the type of process you can run when the person pleads guilty, because you won’t necessarily be building a case about how remorseful they are, or about the contrition that they have for what they did, because it may be that their instructions to you are that they’re still not guilty and they intend to appeal against the finding that they’re guilty. So, they wouldn’t want you to lead anything on the sentence that would actually suggest now that they are guilty, albeit, that’s what the court has found and so they will be sentenced. Then you have to proceed on that basis. But it does limit what you can do.

Robert Hoyles What our lawyers will do, and what they will have done throughout the process, is to ensure that they are presenting to the Court an explanation of who the client, who the defendant is, of what their background is, of why they might have committed the offence that they committed, and to put the offence in its proper context. The whole time, it’s about trying to explain why this particular offender may have done what they did in the way that they did it, and that involves both obtaining perhaps some expert medical reports about the defendant, in some cases where that’s appropriate.

Peter McClellan Psychological?

Robert Hoyles Psychological report, a psychiatric report, a neuropsychological report. Or particular reports relating sometimes to other medical conditions, such as … I represented a client once who had been charged with murder, but had a really, really serious type of cancer that suggested he wouldn’t live for more than eight more months and in the context of a murder sentence that’s quite a significant finding because the standard non-parole period or the ordinary starting point for murder at the mid-range of seriousness is 20 years non-parole period. So, to say that someone would only leave eight months more would be quite a substantial impact on the kind of sentence the court might impose.

Peter McClellan What does the court do in that case?

Robert Hoyles Well it’s actually interesting in. In that case they imposed a relatively lenient sentence. I believe the sentence was, off the top of my head, I can’t tell you for sure. I think it was 16 years with a non-parole period of eight years, which is really, really low in that particular case.

Peter McClellan But nevertheless a life sentence I assume for that person.

Robert Hoyles That was certainly the expectation of the court at the time.

Peter McClellan Do you know whether that happened?

Robert Hoyles I don’t know. But that’s an example of where sometimes a report other than just a normal psychological report might be of assistance. There are also sometimes reports or it’s more and more the practice potentially to obtain reports for example, for an Indigenous person from a particular community, about that person’s upbringing in their community. So that flows from Canadian line of authority in Gladue v the Queen in the Canadian jurisdiction, in which there is far more emphasis placed in that jurisdiction on a person’s upbringing. And, of course, we have now a line of authority from Fernando through to Bugmy that talks about trying to place social deprivation in its proper context, in terms of both explaining it. It does really assist to explain to a court why someone might have done what they did in the context of their background.

Peter McClellan Fernando, of course, is a decision of the Court of Criminal Appeal in New South Wales and Bugmy, a decision of the High Court. Do you call your client at a sentencing hearing once they’ve been convicted by a jury?

Robert Hoyles I think that depends on the instructions that your client has given you.

Peter McClellan Or what advice would you give a client?

Robert Hoyles In circumstances where a client wants to appeal against the conviction and wants to continue to suggest that they are not guilty, I would say it would be very, very rare that I would ever suggest that they give evidence in that circumstance, because it is obvious that they’re going to be asked things about whether or not they are remorseful for what they did. It is not going to be helpful for their case that they say: “I still didn’t do it”, “I still say I didn’t do it”. And it’s going to be of no surprise to anyone, I imagine, particularly the judge, that the client says they didn’t do it, given the client has said that throughout the case and continues to say it. So, it’s not exactly something that you would need to adduce evidence on.

Robert Hoyles There are other ways that lawyers try to adduce evidence about their clients in those contexts, such as sending them to see a psychologist and then having the psychological report tendered. There is also a line of authority from the court that makes it clear that obviously that report is of far more limited weight than if they had given that sworn evidence about what they did. But nevertheless at least there’s some substitute if there are areas where otherwise there would be no evidence about their background or circumstances.

Peter McClellan Now we’ve been talking about trials in the District Court or the Supreme Court, trials on indictment. But as you know, the great majority of cases are heard in the Local Court.

Peter McClellan The Local Court process provides for limited jurisdiction in the magistrate as to the sentence they can impose, but is the process for Legal Aid in representing people in the Local Court, the same as it would be in the District Court or the Supreme Court?

Robert Hoyles It’s very similar. It’s not identical because we give more people Legal Aid in the Local Court without having as much administration involved. You don’t necessarily need a grant of Legal Aid in the Local Court for a sentence which you do in the District Court, and that allows us to see more people more easily without them having to provide us as much information, but the process itself, the court process is very similar.

Robert Hoyles There’s limited capacity for us to provide experts’ reports, like psychological reports, in every Local Court case because of the volume of matters. But we do have engagement at some courts. For example, with the Justice Health Forensic Mental Health Network at court who can provide reports from a clinical nurse consultant about, for example, a person’s mental health issues. We will often hand up letters from peoples’ GPs or doctors about things that they’ve been experiencing. So it’s a similar type of process. It’s just what is actually provided is sometimes a little bit different.

Peter McClellan Now let’s assume the client pleads guilty and comes up for sentence. If again, they’ve pleaded guilty to an indictable matter, it will be heard in the District Court or the Supreme Court, a summary matter in the Local Court. In those circumstances, do your people take a different approach to representing the client or is it the same as if they’ve been convicted after trial?

Robert Hoyles I think the main difference is that your client is saying they’re guilty. They did the thing. It means that you can engage with them in a completely different way about they’ve accepted responsibility for something that they’ve done. They know they’re going to be sentenced for it in court. They can more readily engage with you about what they see their future life plan in that context as being, because their future life plan isn’t just that they plan to go and appeal the thing that just happened.

It allows you to build with them a narrative of their life that you can share with the court about why they did what they did, about how they feel about what they did, and about what they plan to do now and how it is that you’re going to, particularly if, for example, the court is concerned about the fact your client has not been able to hold down a job or has a raging drug addiction, what you can do to address those concerns that is going to make it more likely that the person won’t come back before the court having reoffended.

Peter McClellan And if the person has pleaded guilty, is it likely that the advocate will call them to give evidence at the sentencing?

Robert Hoyles I think so, yes, it’s far more likely and it happens. I know some advocates who would do it almost as a matter of course. I think that as much as we love the sound of our own voices, we know that there is a limit to how well we can tell the story of someone else’s life.

Peter McClellan Also, what impact it might have on the judge too?

Robert Hoyles Yes, the judge is used to me perhaps, you know, saying a whole lot of things that will assist my client, but in the sense that hearing the story …

Peter McClellan The judge does like to hear from the client.

Robert Hoyles Yeah, hearing the story from the defendant can be really powerful. Hearing particularly clients who have really difficult stories to tell. I was thinking in preparation for this about a client who went through quite a protracted negotiation in the Local Court and ended up pleading guilty to something on the first day of the trial in the District Court where the prosecution amended and dropped some of the more serious charges. And the psychological report we handed up in his case explained that his parents had both been members of the Stolen Generations, that he had been removed from the custody of his parents when he was five months of age. That he had lived in eight or nine different foster homes until the age of 13, and at the age of 13, he had left that arrangement and got caught up in a particularly bad crowd of other young people and had turned to a life of drugs and alcohol. And eventually, I was representing him ultimately on a charge relating to armed robbery or like offences in which a firearm was discharged. And in that context, his background really showed a significant impact on what had led him to get to where he was. But there were also a number of markers of where he hadn’t had the advantage of being able to have some of the things in life that some other people have, that put them on the right path. And an opportunity perhaps to see where if he could be helped to be put on the right path, maybe things would turn out very differently for him. And he was only 22 at the time of that sentence happening, so it was at a stage in his life where it was important to explain to the court and to show the judge that given the right opportunities, maybe there was still an opportunity for full rehabilitation for him.

Peter McClellan Now let’s assume that the sentence is passed, but your client’s not happy, believes the sentence is excessive. Does Legal Aid appear on appeals?

Robert Hoyles Legal Aid does, yes. If it’s an appeal from the Local Court to the District Court, we appear in quite a lot of matters. But the difference is that we have what’s called a Merit Test, which means that we actually assess whether or not it is likely that the appeal will succeed in deciding whether or not we spend money on it. So if there is no benefit that the client could obtain from an appeal, we wouldn’t spend the money on those appeals.

Peter McClellan And what about appeals from decisions in the District Court and Supreme Court, does Legal Aid appear on those as well?

Robert Hoyles Those appeals go to the Court of Criminal Appeal and we do appear and again there is a Merit Test. And that process too is a little bit more involved in the sense that we often will seek advice from counsel. And sometimes that advice is from a counsel that wasn’t involved in running the original trial and they will give an independent assessment as to whether or not the appeal is likely to have reasonable prospects of success or not.

Peter McClellan Now we’ve been talking, of course, all the time about Legal Aid which you’re a part of. But in New South Wales is another institution called the Public Defender.

Robert Hoyles Yes.

Peter McClellan What’s the relationship between Legal Aid and the Public Defender’s office?

Robert Hoyles So they’re separate. They’re separate entities, but the Legal Aid Commission Act requires that we support and maintain a Public Defender in New South Wales by ensuring that they’re appropriately briefed in appropriate matters. And that means that we will, as a matter of course, if we try to brief a barrister, we will ordinarily first offer that brief to the Public Defender’s office. Now, of course, because we have way more matters than they could possibly take on because they don’t have that many Public Defenders, there are some rules that the Public Defenders and Legal Aid have put in place, but as a general rule we offer it to the Public Defenders first.

Peter McClellan And you’d offer, I assume, the more serious crimes.

Robert Hoyles Yeah, that’s right. I mean the Public Defenders are held out to be some of the best barristers in criminal law to represent the public.

Peter McClellan Very experienced and very able.

Robert Hoyles Absolutely. And so, it stands to reason that we would try to put them in the most serious cases and the most important appeals.

Peter McClellan Is it the case that all of their work, all of the Public Defender work comes from Legal Aid?

Robert Hoyles As I understand it, all of the Public Defenders’ work comes from either Legal Aid or the Aboriginal Legal Service, and where it comes from the private profession, it is on grants of Legal Aid. So, in other words, where Legal Aid has paid a private lawyer to appear.

Peter McClellan So a solicitor.

Robert Hoyles A private solicitor to instruct. They’re still required to brief a Public Defender first if the Public Defender is available.

Peter McClellan Yes, how many times … Or put that another way, do you brief the private solicitors very often?

Robert Hoyles So private solicitors do about 1/3 of Legal Aid’s duty work statewide, but about 2/3 of our casework, so our grants work. So the answer is yes. In terms of the legally aided work done by private solicitors, they actually have more of those kind of serious crime files or those caseworks. So, summary criminal hearings in Local Court or District Court matters, they have more of those than we keep in-house.

Peter McClellan So what’s the size of the budget? Annual budget for Legal Aid?

Robert Hoyles The total budget for Legal Aid is about just over $400 million. Quite broadly, Legal Aid is funded to provide programs throughout criminal law, as well as family and civil law. But that also includes things like the running of the Prisoner’s Legal Service and the Children’s Legal Service. It includes the running of things like the Women’s Domestic Violence Court Advocacy Service statewide. It also includes money given to manage the Community Legal Centres program throughout New South Wales. As well as a number of other initiatives.

Legal Aid has been heavily involved in the last year in the disaster recovery response, given the floods and in previous years the fires. In terms of providing advice and assistance to people who have lost their homes and lost everything and are engaged in legal disputes with insurance companies and other things.

Peter McClellan Now there’s just one other issue I want to ask you about. We now in New South Wales are moving towards helping Aboriginal people who are in trouble with the law through both methods of sentencing and also providing particular lists. I think Circle Sentencing has been with us for some years now, and the Walama List as it’s called, is a recent creation. Can you tell us, does Legal Aid operate in both of those areas?

Robert Hoyles Yes, so there has recently been announced an expansion to Circle Sentencing from 12 to 20 court locations throughout New South Wales. Those additional 8 locations have not yet commenced.

Peter McClellan Tell us what Circled Sentencing is.

Robert Hoyles Yeah, so Circle Sentencing is a process by which Aboriginal cultural Elders are involved in the sentencing process on the ground, in their community. And where matters that are referred to a circle, people physically go and have a discussion that the offender or the defendant is a part of, that the magistrate is a part of, and that Elders are a part of and they actually sit in a circle. Sometimes the complainant and others like the victims of the crime will sometimes attend as well and the idea is that they have a discussion that is underpinned by cultural understandings of the wrongdoing of what the defendant did and the impact that what the defendant did had on that particular community.

Robert Hoyles And particularly in communities where the Elders are well respected, that process has been shown to be of great benefit, both in terms of recognising the wrongs done and giving sometimes the victims an opportunity to talk about the impact that it had in a forum that the defendant will hear. But also potentially in terms of deterring future behaviour or in preventing further reoffending. I’d be interested to see what happens with the additional courts, as I say those additional ones are not yet set up.

Peter McClellan And how do you fit your work in those circle courts together with the Aboriginal Legal Service? How does that work out?

Robert Hoyles Yeah, so we work in partnership with the Aboriginal Legal Service. We represent Aboriginal defendants, but the Aboriginal Legal Service is a culturally controlled organisation to represent Aboriginal people. Defendants can choose whether they are represented by the Aboriginal Legal Service or whether they are represented by Legal Aid. There are some locations where the Aboriginal Legal Service does not have a presence, and in those places, we will represent Aboriginal defendants. There are some places where Legal Aid doesn’t have a presence, or at least we pay the private lawyers locally to do the duty assistance at court and as a result, a lot of Aboriginal defendants in those places go to the Aboriginal Legal Service, but we work in partnership with them.

Peter McClellan Now, what about the Walama List? What’s that all about?

Robert Hoyles The Walama List is a list that has been set-up as part of the District Court of New South Wales. Walama is a Dharug word that means coming back or returning, which is meant to be a return to community and culture and a healthy crime free life. And the idea of the Walama List is in effect that there is a culturally appropriate sentencing list in which Elders are engaged in a process of thinking about the rehabilitation of particular Aboriginal defendants who are referred to that list.

Peter McClellan And do Legal Aid people appear in that list?

Robert Hoyles Yes, we’ve set up the Walama team, in fact, to assist with that. Aboriginal Legal Service also have a presence in that list.

Peter McClellan So you cooperate with them.

Robert Hoyles We do at the moment. The Walama List is running effectively as a pilot with only 50 participants at a time, and so the numbers are relatively limited and it’s only running in Sydney District Court at the moment.

Peter McClellan Robert, thanks for coming and joining with us this afternoon. What you do of course, to contribute to the system in New South Wales, is of fundamental importance to our community and everyone is grateful for the work that Legal Aid do. Thank you for coming.

Robert Hoyles Thank you very much. Thanks for having me.

Peter McClellan You have been listening to Robert Hoyles, the Director of Crime for New South Wales Legal Aid. This podcast is bought to you by the NSW Sentencing Council, the teachers’ guide to the podcast and further information about the Council is available at the Sentencing Council’s website. Thank you for listening.

Peter McClellan Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Hello and welcome to another episode of the Sentencing Council’s podcast.

Joining us today is Assistant Commissioner Scott Cook of the New South Wales Police. Scott is going to talk to us about the history of the police in New South Wales, which has some quite interesting features, but is also going to talk to us about the role of police prosecutors in a sentencing hearing. Welcome Scott.

Scott Cook Good morning, thank you Peter.

Peter McClellan Scott, can you tell us a little bit about yourself? How long have you been in the Police Force?

Scott Cook So I’ve been in the Police Force for about 34 years. I joined in 1988 and I spent some time as a local police officer dealing with young people and others in the local community context, and it was during that time I became a detective. I studied and trained to be a detective and then I worked a large part of my career then as a detective, often in and out of courts, Coroners Court, Supreme Court, District Court and of course Local Courts.

Later in my career, more recently, I became the commander of the Prosecutions Command. I’ve now moved on from there. However, during that time at Prosecutions I was intimately involved with the Director of Public Prosecutions and others in the space of the courts.

Peter McClellan And I think you’re also the police representative on the Sentencing Council.

Scott Cook Yes, that’s correct and it was through my appointment in the Prosecutions Command that I was nominated to be part of the Council.

Peter McClellan Now can we go back a long way in history? Can you just tell us how the Police Force came to exist in NSW? Just a potted version of the 19th century, if you can!

Scott Cook Yes, it’s certainly an interesting history. When the colony of New South Wales was established, the Royal Marines were undertaking policing functions and they weren’t particularly good at it and so early on, there was a night watch formed by the local governor and there were twelve well behaved convicts who he got to be the night watch and that was the embryo of the New South Wales Police Force.

Peter McClellan Was that sort of 11:00 o’clock and all is well?

Scott Cook I imagine yeah, well I’d have to imagine what it was like. I don’t know but yes, so I think the New South Wales police roots are as convicts who were the better of the convicts appointed to look after the others and so that’s where we started and then in 1810 Governor Macquarie reorganised the Police Force, setting up basic functions and so on, and then over the next century a number of policing units were established.

Peter McClellan But I think some of the units go back quite a way in history. The mounted police I think were first put together in 1825.

Scott Cook That’s right, and then the Water Police in 1830.

Peter McClellan That’s amazing. The Water Police created so long ago, almost 200 years ago.

Scott Cook Yes, and they were created as different units, and I suppose that’s significant. The Sydney Police in 1833, Border Police in 1839. Of course, this went on for some time and they started operating as independent police forces and competing with each other as we do in the policing world and then in 1862 we became a structured police force under the Police Regulation Act, which amalgamated all of those branches or units into one organisation, which is highly contentious one might say because we often compete with South Australia. South Australia was the first organised police force, centrally controlled that is, in 1838, and we often talk to them about where history started before 1838, but the keyword is centrally controlled I think there.

Peter McClellan Well the national conferences must be interesting.

Scott Cook It’s a, a lot of banter goes on around that actually.

Peter McClellan I bet. Now I think we all understand basically what the police do but it’s always been the role of police to bring matters to court and charge offenders who can then be dealt with by the court. And that’s a power that’s available to any police officer, is it to lay a charge?

Scott Cook Yes, so police officers would be informant officers for laying a charge and police officers, any sworn police officer can lay a charge before a court. There’s systems and processes in place now. I imagine back in the 1800s it would’ve been quite different, simply present that individual to the magistrates, Court of Petty Session or wherever. But yes, any New South Wales Police has the power to bring charges in criminal charges before the courts.

Peter McClellan Well, I want to concentrate on the different components of society to understand what the police can do in relation to first of all, juveniles. What are the police powers in relation to juveniles who may have offended?

Scott Cook The powers police have, police powers they execute are consistent, whether they’re juveniles or adults. What happens after an arrest, for example, or a detention of a young person or an interaction, depends on the circumstances. I think we had the Young Offenders Act in, I think it was 1997 from recollection. Prior to that, the way that police, myself included, dealt with young people was quite different. That Act put structured processes around cautioning, and things like that. We often would caution young people anyway.

Peter McClellan When you say your processes were different before the Act?

Scott Cook Yeah, well they weren’t legislated

Peter McClellan No. Is this the origin of the little Johnny who is up to no good and the Sergeant gives him a stern lecture and sends him home?

Scott Cook Yeah. And it’s always existed as police discretion. Discretion is one of those things that’s often debated, but it’s invaluable to policing because as police, we need to be able to make decisions around bigger picture things, not just simply the proofs of a particular offence. Because we’re not just enforcers of the law, we’re part of a community and we need to protect the community and ensure safety to the community, and sometimes that’s larger than a particular offence. It may or may not be detected, and so discretion has always been a part of policing, and I think what the Young Offenders Act did was it enshrined that discretion in a structured way for dealing with young people.

Peter McClellan And so what does that discretion involve?

Scott Cook So I think it probably starts with cautioning people on the run and I’ll give you an example. It may be a group of young people who are loud and noisy in a park, disturbing people who live around the area. Now, prior to the Act the police would just go and disperse them. Say, off you go. And what the Act does is it allows, if those young people are detected committing a minor offence, a summary offence for example, police can caution them on the run. In fact, the Act entitles them to be cautioned. And then all that would involve is a police officer would have a conversation with the individuals, probably move them along. Make a note. You know, in their notebook.

Peter McClellan Taking names of people?

Scott Cook Names and details and then the police would go back and enter that into a computer system that makes the police accountable for their interaction with that individual and acknowledges that a caution was given. So that’s probably the lowest tier in terms of discretion.

 Peter McClellan So that’s a caution, you call it?

Scott Cook Yes.

Peter McClellan Is that referred to in the Act? That level of caution?

Scott Cook Yeah. So, in the Act it’s a little bit different and I probably should correct the record there. So that would be a warning under the Act.

Peter McClellan A warning.

Scott Cook So under the Act, that would be a warning. And so, under the Act, the caution is a little bit more formal, and so my apologies, I should have been specific there. Warnings are the bottom of the line. As a police officer we tend to, historically, do all these things mashed together. It was either a warning or caution. We call it a caution and then it would be otherwise a charge. The Act regulated this for us.

Peter McClellan And so the lowest level is the warning.

Scott Cook That’s correct, yes.

Peter McClellan And once given, does it carry any other consequences? Anyone who’s been given a warning, when they come to notice on a later occasion, does the fact they were given a warning previously, matter?

Scott Cook Yes, it would inform the next course of action.

Peter McClellan So the computer would enable the police officer to go back and say this person has been warned previously and they’ve come up again.

Scott Cook Yes, and I think for those matters, I think after three occasions of warnings, that changes what we can and can’t do.

Peter McClellan Right.

Scott Cook The police officers often, when they interact with people like this in the street, will check on the radio or on their phone about previous interactions because sometimes an alternative needs to be taken in terms of course of action.

For example, no individual’s the same, as you know, and so giving people a chance is very important for the Police Force and perhaps, you know, diverting children from the justice system is important for us because in effect we’re the gatekeepers to the justice system. People enter the criminal justice system through what we do or don’t do and so there’s a lot of programs within the Police Force around, you know, diverting young people from crime and we engage these. So, police youth clubs, you see the “RISEUP” programme that’s in place to help children get jobs in partner with business and other things. And so, there’s a lot of local projects that are done by local police to try and keep children who have gone a little bit wayward out of the justice system.

And so, a lot of those sort of things are important for us as a policing agency because we will never arrest our way out of crime, and we have to look at ways of preventing crime and so our current Commissioner and our previous Commissioner focused on trying to break that cycle and so warnings and cautions are …

Peter McClellan Well, let’s do it in steps. Warning is the lowest level. And then there’s a formal caution as it’s called under the Act. What does that involve?

Scott Cook So a formal caution is, as it implies, more formal, and so in those circumstances a police officer would give notice to a young person to attend the police station in company with, you know, their parents or …

Peter McClellan So they’re given a document.

Scott Cook Given a document, and so that document says you need to come in. We’re going to caution you about this now. That can only happen if the young person admits the offence. Like everyone else, young people have rights, and you know, a right to silence and so on. So, one of the conditions for cautioning is that the young person needs to admit the offence and again cautioning can only apply to some offences under the Act. The operation of the Act only applies to certain offences. So, for example, a child or young person suspected of murder would not be dealt with by this Act.

Peter McClellan No. I think it’s summary offences and indictable matters which could be dealt with summarily I think is the area in which the Act operates.

Scott Cook That’s correct.

Peter McClellan So the person comes to the station. How’s the caution administered? What’s done?

Scott Cook Yeah, so usually in each police station there’s a Youth Liaison Officer, I think they’re called a Youth Officer now. And they’re specially trained in dealing with youth, and they are generally part of the cautioning process at the police station. It’s a conversation with a young person and when a young person’s cautioned, of course, the details of that caution are recorded again and that young person agrees in some circumstances to do certain things or not behave in certain ways, and so on. Police can’t force the issue. We can’t bind a child in terms of bail conditions or things like that. There’s no bail. It’s an agreement that the child will try to do certain things or not do certain things and an example might be to apologise to the person who was harmed or the victim of whatever it is that they did.

Peter McClellan And is the person who’s offended given a document that records the caution and the conditions they’ve undertaken to fulfil?

Scott Cook Yes and so there’s a document that gets them to come to the police station, and there’s a document about outcomes, in effect. And so that’s all again, that’s all recorded in the police system.

Peter McClellan And what sort of offences would come up to be cautioned? What would be typical?

Scott Cook Assault. Like a low-level assault that doesn’t involve serious bodily harm.

Peter McClellan So a few punches thrown without …

Scott Cook Punches, fighting, stealing, shoplifting, public behaviour, offensive behaviour, things like that. Of course, there’s always considerations around this, around how much harm is caused but generally speaking, you know, summary offences and indictable offences dealt with summarily cover a lot of the lower end.

Peter McClellan Yeah.

Scott Cook So in broad strokes, it can’t involve domestic violence, for example, it can’t involve serious assaults, sexual assaults. Something occasioning death cannot …

Peter McClellan They have to be dealt with in the conventional court process.

Scott Cook That’s right.

Peter McClellan Now, after what’s in the scale of things, there’s the warning, the caution, and then I think there’s what’s called a youth justice conference that’s provided for under the Act as well.

Scott Cook Yes.

Peter McClellan What’s a youth justice conference?

Scott Cook It’s kind of like a court, but it’s not. It’s very formal in the context of what we’ve just talked about. It is the most formal process, and it’s conducted via the Youth Officer within each of the police commands who engages with other parts of the government and the justice system to arrange the conference. I think there’s about 17 or 18 around NSW and they’re not magistrates who sit, but there are representatives of Youth Justice who sit in administration of the conference. The conference will take place in a formal setting, much like a court. It’ll be, police prosecutors may often attend or will attend. And sometimes the victim may or may not be there. It just depends on how it’s arranged depending on the nature of the offence and so on, but it’s a formalised way of dealing with these matters that’s outside of the court.

Peter McClellan Now we’ve been talking, of course, about the processes of diverting juveniles from the court system. When the offender’s an adult, do the police have discretions in relation to whether or not they charge adults?

Scott Cook So in terms of general discretion, yes. Police have a general discretion, no matter adults or children, but in some of the legislative schemes such as cannabis cautioning program, there’s formal cautioning programs put into legislation. I think the Law Reform Commission said that it should be expanded, but cannabis cautioning for adults is an example of discretionary decision making by police. It generally involves a small quantity of drug, and generally for personal use. It’s not something that would be used for a drug supply. However, you know, I think it’s certainly used a lot for, like for small amounts of drugs. And again, I guess that’s from a policing perspective, keeping people who make one off mistakes, experimenting with drugs, and so on out of the court system is in the interests of the whole community because often introduction to the criminal justice systems through drugs leads to a lifetime of either addiction or offending and so it seems to be working reasonably well, the caution program.

Peter McClellan I think there’s a limit to the number of cautions that can be given. Can you explain that to us?

Scott Cook For cannabis cautioning or generally?

Peter McClellan Well both.

Scott Cook Generally, yeah, I’m not sure about cannabis cautioning, how many you get, what the limits there are. But for cautioning of young people, it’s 3 cautions. After that they’ll be charged. Yeah, and I mean you may not have a different outcome to a conference anyway, but I think there’s only so many times that someone could be cautioned before it kind of doesn’t work anymore.

Peter McClellan Now you mentioned that you for a time were responsible for managing the police prosecutors in New South Wales.

Scott Cook Yes.

Peter McClellan How many police prosecutors are there?

Scott Cook At the moment, there’s about 350 police prosecutors that work for the New South Wales Police.

Peter McClellan And are they all qualified lawyers?

Scott Cook No, about a third of them are. We do try to make sure that our prosecutors have every opportunity to develop. All police who aspire to be prosecutors go through a comprehensive training program and mentoring. They do a lot of court work, which is where they really get their skills. That training program takes about 12 months before they’re allowed to prosecute on their own. So, for that whole 12 month period, they’re supervised in everything that they do. After 12 months, they’re allowed to prosecute on their own, but they generally won’t be given matters that are exceptionally difficult and as they become more experienced prosecutors, there’s a group of about 30 who are our senior advocates, who would do the more serious Local Court matters for the Police Force.

Peter McClellan Now is there a police prosecutor assigned to every court in the state?

Scott Cook There’s a group of police prosecutors, for all the courts in the state, yes, and so some of them work in hubs and some do multiple courts, particularly in the regional areas. They’ll travel, like a magistrate will travel to different courts. But in every Local Court in New South Wales, there will be a police prosecutor who stands up.

Peter McClellan So if someone goes into a court somewhere in New South Wales this morning, there will be a police prosecutor in that court.

Scott Cook Yes, absolutely.

Peter McClellan And they are responsible for prosecuting all of the crimes that come to that court. Is that how it works?

Scott Cook Yeah, so all the matters dealt with by that Local Court in a criminal sense, are prosecuted by local police other than a small minority of that, so it’s wrong of me to say all. Ninety five percent of the matters in a Local Court in a criminal sense are dealt with by a police prosecutor. There are some which are dealt with by the Director of Public Prosecutions on occasion. But it’s probably as a result of a trial, for example, falling through, and an alternative charge that’s a summary charge being dealt with. And if a DPP officer has carriage of those matters, sometimes they will carry them back to the Local Court, but on other occasions they will hand them back to a police prosecutor to prosecute.

Peter McClellan And if our hypothetical person was to go into a court this morning would the police prosecutor, be in uniform, or would he or she be in civilian dress?

Scott Cook No, they’d be in plain clothes.

Peter McClellan Right.

Scott Cook There was a time when police prosecutors wore uniforms, but it was very fleeting. Most prosecutors or all prosecutors are in plain clothes. And they would, for all intents and purposes, they would appear to be another solicitor at the bar table.

Peter McClellan Or a legal practitioner. Well, there must be a fairly heavy workload for some of them on some days.

Scott Cook They have an enormous workload. And a few years ago there was a trial that was run by the New South Wales Government in the Campbelltown area where there was some talk about getting rid of police prosecutors and replacing them with the Director’s staff wholly responsible for prosecutions in the state and they found that they needed three to four solicitors to do the same work that a single prosecutor does, so they’re very efficient. Needless to say, that that didn’t get any legs.

Peter McClellan No, didn’t happen.

Scott Cook No doubt due to cost, but nonetheless the police prosecutors have an enormous workload and they become very practised in managing the court and working with magistrates to manage the court and the court’s workload.

Peter McClellan Now I assume that they bring to the Local Court indictable matters and there may or may not be an early hearing in the Local Court. If the matter is then referred on for trial, does the police prosecutor cease to have any relationship with that matter?

Scott Cook So it would depend at what point. In the short term, yes, for as long as the strictly indictable matter, for example, that was running through the EAGP process.

Peter McClellan So EAGP, what’s that?

Scott Cook So EAGP is Early Appropriate Guilty Plea. It’s a process that the government brought in place to ensure that the District Court doesn’t deal with all matters that are strictly indictable in some circumstances where an early plea can be negotiated. It prevents matters going to trial in the District Court and so there’s a process that can take anywhere between you know 3 to 9 months, sometimes longer. It’s meant to only take 6 months maximum but often that’s not the case. And it was born into the Local Court process so that the Director of Public Prosecutions can determine whether to indict someone for trial at the District Court and to speed that process up. In that process there may be strictly indictable matters, which are occurring in the Local Court as they progress through that process but the police prosecutor will stand up and mention the matters, seek adjournments, often deal with bail applications that occur during the period and so the police prosecutor is still engaged in those strictly indictable matters in the Local Court until the point that the Director of Public Prosecutions charge certifies, and at that point the Director of Public Prosecutions solicitors will appear.

Peter McClellan Now as we all know, sadly there are many applications for apprehended domestic violence orders that are made in the Local Court. Do the police prosecutors appear in those matters?

Scott Cook Yes, they appear in those matters and they often appear on behalf of the victim in those matters.

Peter McClellan And then the Youth Koori Court also, do the police prosecutors appear in that court?

Scott Cook They appear in the Youth Koori Court, they appear in the Children’s Court and they also appear in Circle Sentencing and other things.

Peter McClellan It requires a very broad range of skills to prosecute in each of these places.

Scott Cook Yes, we’re pretty proud of our prosecutors. They do a fabulous job. You know they have to get their head around a lot of things and given that only about a third of them have completed law training in terms of a legal degree and being admitted as solicitors, it’s no small feat that they can get their head around all of these things and be successful in what they do.

Peter McClellan Do you lose many who go into private practice?

Scott Cook Yes, we do. In fact, we invest a lot. We often offer scholarships for our prosecutors to do law and to be admitted, and we think that’s good for their development. It’s better for the courts. It’s better for us as an organisation. Even the lawyers that we have that come from the DPP and other walks of life to the Police Force get accelerated to prosecutors, but they still have to do the prosecutor training and they actually give great feedback that it’s very hands on training. It’s kind of like learning a trade as opposed to doing a law degree or doing some other degree. And so, they get thrown into the deep end.

Peter McClellan You learn at the coalface.

Scott Cook You learn at the coalface and I don’t know that you can underestimate the value of that. But we still encourage our police prosecutors to do law degrees. A consequence of that is, after 15 or 20 years as a prosecutor they go to the private bar.

Peter McClellan They’re pretty skilled.

Scott Cook They’re very skilled, yes.

Peter McClellan Well then can we just turn attention to the process of sentencing in the Local Court. What’s the role of the police prosecutor in the sentencing of an offender?

Scott Cook Yeah, so the police prosecutor will present the facts to the court.

Peter McClellan That is that done by document or is it orally?

Scott Cook Generally it’s the handing up of a fact sheet, but they will speak to the facts orally. Depending on the circumstances, it may be depending on the case and the facts speak for themselves sufficiently. Most prosecutors would tend to draw the magistrate’s attention to certain things, as opposed to have a very adversarial legal argument about or position around sentencing. When a matter is a DV matter for example, the prosecutor will articulate the impact on the victim. When it’s another matter, for example a traffic matter, the prosecutor will simply present the facts and draw the magistrate’s attention to particular areas rather than become very adversarial on sentencing. Now, it may be that the defence may raise particular points on those facts and then the magistrate will often ask the prosecutor if they have a view on that. But the prosecutor won’t force a view. I think perhaps on sentence, they’re less adversarial than what you would see in the higher courts.

Peter McClellan And what about the criminal history of the offender? Do the police produce that for the court?

Scott Cook Yeah, so our criminal record section produces a person’s criminal history for the court and that is handed up to the magistrate via the prosecutor.

Peter McClellan And what would turn up on the criminal history? We were talking earlier on about warnings and cautions and so on. Are they on the criminal history or not?

Scott Cook No, there would be an alternate, for the youth conferencing and the cautions there would be an alternate history. However, as a matter of general practice for adults and others, the only history that is presented, is not all the interactions with police but only those that relate to convictions, prior convictions. And so, we generate a number of different reports for example, on a bail application there would be a full history, including all of the arrests that didn’t proceed to conviction.

Peter McClellan Now for some crimes, the court will receive a victim’s impact statement. Do the police prosecutors play any part in providing those to the court?

Scott Cook Yes, the victim’s impact statement, particularly for DV and other harm matters, well violence matters will be provided or handed up by the police prosecutor and often the police prosecutor would address the magistrate on the terms of that on behalf of the victim. Prosecutors are obliged to keep victims informed of how proceedings are going. They’re obliged to represent the victims in court, particularly for DV.

Peter McClellan And finally, in relation to the information that police provide. The Judicial Commission prepares statistics in relation to offences and penalties. Do the police have access to those statistics?

Scott Cook The police prosecutors do. Police generally, no.

Peter McClellan Right.

Scott Cook Police prosecutors have a large amount of access to legal frameworks that other solicitors or barristers would have access to and they also have access to police records and statistics as well. And so they have more access than a general police officer would.

Peter McClellan And are they responsible for providing statistical information to the court?

Scott Cook If they have it, they will do that, yes, but it’s not often used in terms of statistics. Police prosecutors do use it in the Local Court, but it’s not a common argumentative point on middle of the range.

Peter McClellan It’s got to be carefully used.

Scott Cook That’s right.

Peter McClellan There’s quite a bit of law associated with it.

Scott Cook So it’s not often that they would use that, and generally the cases that they’re dealing with, given the limitation of the Local Court in terms of sentence, it doesn’t become a big thing for them.

Peter McClellan Now in other episodes of the podcast we will be looking at the special courts that deal with Aboriginal and Torres Strait Islander offenders. One of those courts is what’s referred to as circle sentencing. Do the police prosecutors have any role in circle sentencing courts?

Scott Cook Yes, they engage and represent victims and others and provide a voice to those people. But circle sentencing is generally focused on delivering outcomes and agreeing positions and so it’s far less adversarial. It’s very different to a court and so it’s still formal. There’s some that are done currently out in Western NSW where elders and others come to be party to that sentencing process. Of course, it’s overseen by an appropriately appointed magistrate or judge and police prosecutors present facts to that group. It’s a way of delivering outcomes or sentencing people within community with proper consideration for culture and circumstance. And it has been quite successful, particularly in regional areas in New South Wales. I wouldn’t be surprised if that grows in terms of its use. The prosecutor role is not adversarial in that circumstance. Again, it’s about presenting the circumstances.

Peter McClellan We clearly face a terrible problem in relation to Aboriginal offenders, particularly young people, given the proportion of Aboriginal people who end up in custody in one form or another. So any approach that attempts to deal in a culturally significant way with offenders, I assume the police endorse?

Scott Cook Yeah, absolutely. We don’t want people in the justice system if we can help it and if circle sentencing helps keep people out of jail but still deals with their offending, that’s important, particularly in regional NSW, and particularly with young Aboriginal males. A lot of Aboriginal offending is on Aboriginal victims in regional areas, and it’s important that women and children and others feel safe and so this type of sentencing allows for those cultural aspects to be properly considered, and perhaps, puts a greater responsibility on community to try and prevent these people entering the justice system because to be honest people who go to jail over time, are more likely to learn how to offend. It’s a significant issue and police generally will do anything to keep people out of the justice system where possible. But on the other hand, police also have an obligation to make sure that people who commit serious crimes are dealt with by the justice system. So again, we come right back to discretion there, and that’s the gateway to the justice system or criminal justice system via policing.

Peter McClellan Scott it’s been very interesting to talk to you this morning about the role of police and police prosecutors. Thank you very much for joining us and we will see you again at the next meeting of the Sentencing Council.

Scott Cook Thank you very much Peter. It’s been a pleasure.

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.  

Joining us today is Wayne Gleeson, who is a member of the Council. Wayne is going to talk to us about his experience with the Council. Wayne is also responsible for the development of the Legal Studies course for senior high school students.

Peter McClellan Good morning Wayne.

Wayne Gleeson Good morning Peter, how are you?

Peter McClellan Wayne to start off our discussion, I’d like to understand a little bit about your history in education.

Wayne Gleeson Right, I was originally a social science teacher. I started in 1978. When I went to Riverside Girls in the 80s, they had a course called Law and Society which did not go to an ATAR for students in year 11 and 12. However, students did it because they were interested in the law in its role in society.

At some stages, we would actually have two classes in year 12, which means those students enjoyed it so much that they wanted to follow that subject and sacrifice an ATAR subject.

Obviously word got out about that because Ann Sanders came and interviewed myself and …

Peter McClellan That’s Ann Sanders from Chanel 7?

Wayne Gleeson Yes, Channel 7 Seven. I think she’s still there all those years later, came and interviewed myself and my class, and from that there was a drive and a push to have a Legal Studies type course at the Higher School Certificate.

Peter McClellan Now what year was this?

Wayne Gleeson This is the late 80s.

The push to actually have the subject started in the late 80s. The syllabus came out and the first Higher School Certificate was in 1991, in Legal Studies.

Peter McClellan And when it first came out, did it become an ATAR subject?

Wayne Gleeson Yes, straight away.

Peter McClellan And the children would study it in years 11 and 12?

Wayne Gleeson That’s correct. It started with a relatively small candidature. It now has approximately 14,000 students sitting the Higher School certificate at the end of year 12. Certainly in year 11, that number would be much greater, but obviously students drop a subject, usually from year 11.

Peter McClellan To prepare for the HSC.

Wayne Gleeson Yes to prepare for the HSC. So it’s become a popular subject. It’s become a subject which students who are both academic or less academic can do because of the interests and the things that they study in there attract different types of students.

Peter McClellan Could you give us some idea of the curriculum?

Wayne Gleeson Yes, most definitely. For the Higher School Certificate, there is a mandatory section which is human rights. So you must study human rights and you must study crime. So that makes up 50% of the Higher School Certificate.

Then there are two options that you can do and those options ranged from consumers, workplace, shelter, global environmental protection, Indigenous peoples, world order.

So there’s a whole range of options that the students can choose. They must choose two of those.

Peter McClellan And what’s the curriculum trying to do in terms of the nature of the of the students’ education? What’s its ultimate objective?

Wayne Gleeson I think it has a number of objectives. Certainly in year 11, which is where you introduce them to a broader range of law, which is, you know, what is the nature of law? The individual? Who are the players within the legal system? Not only the courts, but things like tribunals and non-government organisations.

So the year 11 course is much broader. They also touch on law reform and the one mandatory thing in there is you must study native title and the changes to terra nullius and native title and the Mabo decision.

So that introduces students to a broader understanding of what happened in Australia from colonisation onwards and the concept of native title because most 16/17 year olds probably have no idea.

Peter McClellan That’s of immense value though, because people of my generation, older members of the community generally do not understand any of those concepts. Which is one of the problems in of course, an understanding through the general community of what native title is all about.

Wayne Gleeson Exactly right and the struggles that still happen today with the mining companies destroying sacred sites, etc.

Then students study another law reform issue which they or their teacher chooses. So that can be a variety of different law reforms. And they also study technology and the law which is obviously today …

Peter McClellan People like me would appreciate that.

Wayne Gleeson Well, you can imagine the interest today, because that covers a massive area from not only scams, but to sexting and all this sort of stuff. So that’s mandatory, so they have to study that.

And then the last section of the year 11 syllabus is the law in practice and teachers have much more freedom of what they can do in there. So some teachers do specific cases which are of real interest to students. Or they may do an Australian in another jurisdiction. You might do, you know, the Bali 9 situation when an Australian got stuck in another jurisdiction.

And then you go into the Higher School Certificate course which is a much more specific way. As I said specifically, you’ve got to do your human rights and you’ve got to do your crime and the two options.

Peter McClellan And the crime, does that cover the nature of crime and particular offences and sentencing?

Wayne Gleeson Yes, so it starts, actually the first topic is the nature of crime. Yes, so you’re looking at the different types of crimes that happen, the nature and maybe why people commit criminal offences. So once again that’s very broad in itself. Obviously quite topical now, we do the age of criminal responsibility and doli incapax because one of the topics in crime is young offenders. And that’s very topical now about, whether children should be able to be charged at 10 and face incarceration.

We do the investigation process, the role of police and other investigators, search warrants, police powers through LEPRA [Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)], the criminal trial process, and then sentencing and punishment, young offenders and then international law.

Peter McClellan Well as you know, of course, the podcast series is discussing sentencing. And it’s our hope that what we have recorded with the interviews with various people will assist students in their understanding of the principles and help them in their exams, ultimately, the HSC.

Wayne Gleeson I think it most definitely will.

One of the things with sentencing is there’s a perception out there that you commit a crime, you go to gaol. And what students get amazed at is that the most common penalty through our courts is a fine and then how … what is the word … disadvantageous that is for certain people in society.

So you hit someone with a fine, they default on that fine. The most common punishment for defaulting on fines then is to lose your licence. Students have no idea about that. As probably do most of the public have no idea.

Peter McClellan That’s probably right.

Wayne Gleeson So students find that fascinating that something as simple as not paying your fines, can lead to your loss of licence which then can lead to not having a job.

Peter McClellan Yep.

Wayne Gleeson And the great disadvantage of that. And when students see how many fines are handed out compared to gaol sentences!

And the other thing with sentencing which the majority of students get surprised at is that they think of sentences and all that happening in the Supreme Court or the District Court, and they forget the volume of work that happens in the Local Court and therefore it’s an education to them to be able to see that, you know, if you walk into your Local Court, you’re going to watch a magistrate and a police prosecutor working their backsides off.

Peter McClellan It’s interesting you say that because one of the great debates in the law of course, for years has been the maintenance of jury trials and claims back and forth about the value of jury trials. But something like 97% of the criminal trials in this state are judge alone trials because they’re taking place in the Local Court.

It’s a mere fraction that is actually heard in the District Court or the Supreme Court.

Wayne Gleeson Exactly right.

Peter McClellan Yeah, and then not always with the jury.

Wayne Gleeson That’s right, and it’s interesting too, when you talk with students and teachers about judge alone trials in the District and Supreme Court that once again, they’re becoming more common and most people think it’s because of publicity, that there was so much publicity about this offending that therefore they couldn’t get a good a trial.

Peter McClellan Fair trial.

Wayne Gleeson Fair trial. But also, that you know, judge alone trials go quicker than jury trials.

Peter McClellan Significantly quicker.

Wayne Gleeson And therefore the cost to the actual offender is less if you have a judge alone trial so if you want to defend yourself with a private solicitor or something, then you might apply because you can’t afford to maintain a jury trial.

Peter McClellan The statistics also show that your chances of acquittal are greater with the judge alone trial than they are with a jury.

That’s a topic for another, discussion.

Wayne Gleeson Another discussion yes.

So with the topic of sentencing within the syllabus, it’s a whole range because as we know the types of penalties now have changed dramatically since the 2018 reforms. More and more use of intensive correction orders, where someone is sentenced to a custodial term, but they serve in the community are being used, so students then get a better understanding of the types of penalties that a magistrate or judge can dispense for a for a crime which they wouldn’t normally expect that someone would go to gaol for.

Peter McClellan Well that leads us to the Sentencing Council’s work, which of course was significant in driving the changes which have now taken place in recent years in the way we sentence people and the use of community sentencing, which has increased dramatically over the last decade.

And your involvement in the Sentencing Council. You were a member of the Council from 2014?

Wayne Gleeson Yes, 2014.

Peter McClellan And how did that come about?

Wayne Gleeson Strangely enough, I’m a bit of a law junkie so I read cases on weekends for fun. And follow the law with intense interest and one of the good things about the Sentencing Council is, all its information is readily available on the internet, so I was looking at the Sentencing Council, I was looking through one of its reports and one of the people on the Sentencing Council at the time suggested that there was a position available for community members and someone who had an interest in juvenile justice and said that I should apply.

So I applied for those positions, went through a process of application, interview and then selection.

Peter McClellan So you were selected as a community representative?

Wayne Gleeson No, I was selected, in the end as someone with an interest in juvenile justice because of my background in education and schools. Yes.

Peter McClellan And at that stage the Council had 13 members, do you remember?

Wayne Gleeson Yes, yes it would have been.

Peter McClellan And four or so of those members would have been community representatives.

Wayne Gleeson There are four community reps. Two with connections to victims of crime, and then two members who just have a general community interest and then a member who has an interest in juvenile justice.

Peter McClellan And then of course, the Council has multiple other persons who are generally, people who hold an office in the criminal law area. Together with a couple of retired judges who fulfil roles including the Chair of the Council.

Wayne Gleeson Yes.

Peter McClellan Now when you came to the Council, did you know anyone on the Council?

Wayne Gleeson Yes, because of my involvement in legal education, some of the people who were already on the Council had spoken at conferences I’d organised or helped organise so I knew Howard Brown victims advocate; Ken Marslew victims advocate; Nicholas Cowdery the DPP at the time; James Wood, I had met but I didn’t know.

Peter McClellan He was the Chair of this Council?

Wayne Gleeson He was the Chair at the time.

So yeah, I had some knowledge of some people there. But I was actually blown away at my first meeting when we sat down and you have people with this background of law knowledge who accept your opinion as much as anyone else’s.

And that really impressed me that you have a statutory body looking at reforming the law who value your opinion as a lay person from the community as much as they value the opinion of the DPP.

Peter McClellan You mentioned Nicholas Cowdery. He, of course, was the Director of Public Prosecutions at the time?

Wayne Gleeson Yes.

Peter McClellan So what you’re saying is, it’s a fairly high-powered group of people.

Wayne Gleeson Yes, and James Wood, when you think of James’s background from Supreme Court judge.

Peter McClellan Yes, so you were welcomed into that community without question.

Wayne Gleeson That has continued throughout. So no matter who has been on that committee, the respect they show for each other’s opinion, even if it’s so disparate to their own, is very impressive. I’ve never seen anything like it before.

Well then can we turn our attention to some of the reports that you were involved with in your time on the Council. Are there any reports that particularly stand out for you?

Wayne Gleeson I think a couple of more recent ones that we have done to do with, the fire offences and the assault on emergency service workers.

Peter McClellan Well, let’s talk about the fire offences.

Wayne Gleeson Yes, I had a major interest in this one having been caught up in the 2019 fires myself on the South Coast.

Peter McClellan Your own home, was it?

Wayne Gleeson A home we have on the South Coast, yes. Being evacuated and with my, at the time one year old granddaughter.

Peter McClellan Whereabouts was that?

Wayne Gleeson Yeah, Tomakin, down the South Coast near Batemans Bay near Mogo, which got severely …

Peter McClellan Yes.

Wayne Gleeson And I did see firefighters, risking their own lives to save people’s, homes and people abusing them because they wouldn’t let them back into those properties while they were fighting a fire to try and save their house.

So I saw with the fire offences, which then obviously leads on to the assault on emergency service workers as well. So there’s sort of like a little link.

Peter McClellan The issues in the fire report were what?

Wayne Gleeson I think the Attorney asked us to look at the standard non-parole periods and maximum penalties. We conducted a fairly detailed report as we do in all our reports.

There were a number of submissions for that, and that’s another impressive thing about the Sentencing Council – that any member of the public can make a submission to a brief that we’ve got. It is all transparent. Every submission is up on the website. You can read whoever you like, who’s put up a submission there and the fire offences, we did get a number of submissions, obviously. And it went through a process where we supported the idea of raising the standard non-parole periods but not increasing the maximum sentences.

Peter McClellan Penalties.

Wayne Gleeson Yes, maximum penalties.

Peter McClellan So that was with the expectation, that sentences that were imposed on individuals would increase?

Wayne Gleeson Yes.

So that one I had an interest in apart from my 2019 thing, but also, as a naughty little 4 year old, I started the fire in my backyard and ended up in hospital for four and a half months with severe burns.

Peter McClellan Wayne has just shown me his arm, which has not done too well out of that fire.

Wayne Gleeson But I think that report was a really well-structured report which went to government. So I was really happy to be involved in that and the assault on emergency services workers I thought was a particularly impressive report.

Once again, if you’ve ever been in an emergency ward of a hospital, you can often see aggression develop very quickly when someone’s not being seen and a nurse be threatened if not even assaulted. I witnessed that in a Sydney emergency hospital a number of years ago where a nurse was actually assaulted because she was processing through priority order and someone didn’t like that.

And this gentleman actually assaulted her and I thought, how dare they? No one should be assaulted, but these people are doing their day-to-day work, which is hard enough as it is.

Peter McClellan Who are out there trying to help people.

Wayne Gleeson Exactly and as we’ve all been in emergency, you know, departments that they’re traumatic places as it is, and to try and prioritise that work, and this poor nurse being assaulted was my first hand knowledge of it and then in 2019 when I saw firefighters being threatened who were doing an amazing job, I thought this was a very impressive brief to get given by the Attorney.

And the extent of the consultation that went on for that, and we received a number of submissions. Meetings with interested parties. And one of the things that’s also very impressive about this report is that the government has accepted every recommendation that was made by the Council.

So I think that shows how the Sentencing Council listens, works, draws up a report and then it’s up to government to make the decision of whether they will accept that or not. And then this report, they’ve accepted every recommendation.

Peter McClellan Can we just go back to the school students?

You of course have been teaching in this area for many years. Can you help us to understand when the students first start down the path of the Legal Studies course, do they come with any understanding of how the legal system works?

Wayne Gleeson They may. If they’ve studied commerce in years 9 and 10, which is an elective subject in the junior school, they will have done some law in that there are branches within the commerce syllabus where you study law. But that’s not a compulsory subject, so I think of all the students I’ve taught, possibly only a small percentage have done commerce. It’s a popular subject, but it’s not mandatory therefore a number of students will have come with, no understanding.

One of the things that you notice when you’re teaching is the students get very quickly an interest in the variety of things that the syllabus offers them. As I mentioned before, they’re going to be studying, from the very beginning, the nature of law. What actually is it? And as I said to you before, studying something like terra nullius, and then doing, technology law because these kids are using their phones …

Peter McClellan It has a direct relevance to their lives.

Wayne Gleeson Yeah, and as a deputy principal, you actually deal a lot with the naughty children of a school and often phones play a large part in their naughtiness.

Peter McClellan It’s changed in your lifetime in school?

Wayne Gleeson Yes and certainly the recording of the things they shouldn’t be recording, but also the bullying that takes place. And then realising that in year 11 and 12 when you study the technology and the law, realising that you’re actually committing some offences when you’re doing this. So apart from, breaking school rules, you’re actually committing some offences which can land you in some very serious trouble.

So, students grow with the course too. As I said, I’ve been teaching it non-stop since 1991 as an HSC course. The students grow in that year 11 and then particularly then when you get to do your own choice of law reform or you get to do law in practice at the end of year 11, which gives a teacher a greater scope of what they can do with these students. It’s interesting to see how a student grows within that.

For instance, doing a sex slavery case in year 11 at the end of the course, because students are not thinking we don’t have slaves anymore. And yet there are estimated 30,000 slaves in Australia alone.

And we now have both a federal Modern Slavery Act and a state Modern Slavery Act to deal with these things so that impresses me even as a teacher after all these years, to see a student just grow with the course.

Some don’t of course. Some picked Legal Studies because it was the only thing left to do but they’re very few, and even so with those ones, if you can make the course engaging, then they’ll engage anyway.

Peter McClellan And when you talk about law reform with the students, how is that approached? I have in mind that of course, the Sentencing Council and the Law Reform Commission in New South Wales, which are closely aligned. Their job is to look at reforming the law in particular areas, but how do you approach that?

Wayne Gleeson The syllabus actually sets out that you look at what drives law reform, so the conditions.

So within the syllabus, it’s things like changing social values, new concepts of justice, technology and when you look at that, not only with criminal law, but if you think of, say, the changes in same-sex relationship law, which has been driven through changing social values etc.

And because some students in year 12 do family law, a teacher may do that area. So what drove the recognition of same-sex relationships and then leading to recognition of marriage. Then you go through the agencies of reform. So you do what influences the reform.

But then obviously the only thing that can actually drive that reform in the end, is parliament. So students have to be aware that there might be a real interest in it, and there might be a desire for it, but governments may not then implement law reform. As we’ve seen with across all forms of government.

And then you look at how effective you think it’s been.

So within the criminal area, if you look at the original, say intensive correction orders that came out, the concept being that you can give a custodial sentence, but they’re served in the community. But before 2018 you had to have a work component which was disadvantageous for a lot of regional areas because they didn’t have the facilities to do that. So you couldn’t get an ICO really in regional areas, which meant you probably got a gaol term.

And as we know, if you look at the recidivism rates, you spend some time in prison and you’ve possibly got a higher chance of being a recidivist than if you don’t.

Peter McClellan Well, then do you talk to the students about the work of the Sentencing Council?

Wayne Gleeson Yes. In that law reform area, you would certainly look at the Law Reform Commission because that’s actually in the syllabus. And then teachers would look at the Sentencing Council because that’s a driving force.

So you would certainly maybe look at one of the reports and not go into much detail because it’s certainly much too much detail for students.

But you would say this is the process. The Attorney General gives the terms of reference. Then from that terms of reference there are submissions. And these days when classrooms are all electronically connected, you can go to the websites. Kids can be seeing it in class. You click on one of the projects. Have a look at the submissions. Look who’s submitted. So this person has been involved in trying to reform the law or is giving an opinion on what they think should reform the law.

And I think we saw the role of that with the homicide report that we did. The number of submissions that were received for that. So yes, you certainly look at the Sentencing Council’s role.

Peter McClellan Wayne, thank you for joining us this morning.

Wayne Gleeson My pleasure.

Peter McClellan The work that you’ve done in developing the syllabus and driving the impetus for legal studies in high school is of immense value to all the students who study, but also of course, to all of us in the general society. An understanding of how the legal system operates is fundamental to being able to function as an effective citizen in our community. The work that you’ve done is really quite outstanding and significant not only for current students, but of course for many students going forward. The community owes you a great debt for the work that you’ve done. But we’re also grateful for the work you’ve done with the Sentencing Council. And thank you again for joining us this morning.

Wayne Gleeson My absolute pleasure. Thank you.

Peter McClellan You have been listening to Wayne Gleeson, a member of the Sentencing Council. This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teachers’ guide to the podcast and further information about the Council is available from the Sentencing Council website. I’m Peter McClellan. Thank you for listening.

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Peter McClellan Joining us today is Judge Ellen Skinner, the President of the NSW Children’s Court. The judge is going to tell us about the special rules that apply to children who offend, and how judges approach the sentencing of young people.

Peter McClellan Welcome Ellen.

President Skinner Thank you Peter for having me.

Peter McClellan Now Ellen, you took up the role of President of the Court sometime last year. Is that right?

President Skinner: I did, I was appointed as a magistrate in 2009 and I started sitting in the Children’s Court in 2017. Last year from September I was acting as the President of the Children’s Court and then in November was appointed as the President and a judge of the District Court.

Peter McClellan How many judicial officers are there in the Children’s Court?

President Skinner There are 16 specialist children’s magistrates and then we have one magistrate who rotates through from the Local Court as a three-month training program prior to them starting their country service.

Peter McClellan And are they based in different parts of the state? How is it organised?

President Skinner We have some specialist children’s courts, so we have children’s courts set up at Parramatta, Surry Hills, Woy Woy, Broadmeadow, Port Kembla and Campbelltown. And then we have some specialist circuits that run in the Hunter Valley on the Mid North Coast, in the Northern Rivers and the Riverina and the Western Circuit. So, Parramatta has got six courts and Surry Hills has got four courts and the magistrates rotate between servicing those areas.

Peter McClellan Now as I understand it, the work that you do is fundamentally controlled by the Act known as the Children (Criminal Proceedings) Act of 1987. And so we need just to understand some of the fundamentals in that legislation as they affect the work of the Court. I think the age of criminal responsibility in this state now is 10 years, is that right?

President Skinner Yes, that’s right. There are many discussions about the age of criminal responsibility in this state, and across this nation, and across the world but at the moment between the ages of 10 and 14, a child can be held criminally responsible for their actions once the court has made a determination that they understand that their actions were seriously wrong.

Peter McClellan So if you’re under 10, there’s no criminal responsibility for any child, but between 10 and 14 the court may come to the view that the child understood what they are doing sufficiently to warrant a criminal charge. Is that it?

President Skinner That’s right, yes.

Peter McClellan But that decision is made by the court, not for example, by the police. It’s made by the court.

President Skinner By way of process, if there’s an incident that involves a child between the age of 10 and 14, the police would investigate and then make a determination of what action they wanted to take against that child.

Within that investigative process the police have got a scheme called the Protected Admissions Scheme and a child can make an admission for the purpose of having a charge diverted under the Young Offenders Act.

The Young Offenders Act provides for, and once the child has made an admission (and this applies to people who are under the age of 18 at the time of an incident) that once they’ve made an admission, they might be given a police caution or they might be referred to a youth justice conference.

So some children who are aged between 10 and 14 will call either the Children’s Legal Service youth hotline or they’ll call the Custody Notification Service for the Aboriginal Legal Service and they’ll seek some advice about whether or not to admit the offence. If they decide to admit the offence, the police might then divert them under the Young Offenders Act and we won’t see them at court, so it won’t be a court decision.

If they don’t admit the offence, then it might be that the police make a determination to charge them and bring them before the court. Under the Young Offenders Act, there are also warnings that are available for summary offences, and summary offences are offences that carry two years imprisonment or less, and the police can use the warnings as well as a diversion from court.

The Young Offenders Act has been established to provide an alternative outcome for young people to have them recognise that their actions have consequences and to have them involved in the consequences of their actions. So the police can divert young people to the Young Offenders Act or the court can divert young people to the Young Offenders Act. But at this stage a young person has to admit an offence before they can access those diversionary processes. So the benefit of dealing with something under the Young Offenders Act is that there’s no criminal record. It can make a difference for some people with respect to employment or travel in the future.

Peter McClellan So if a young person is diverted under the Young Offenders Act, who has responsibility for imposing any sanction or future obligations in relation to their conduct?

President Skinner It depends on who manages the diversion. If a police officer gives a warning, it’s dealt with at the time.

Peter McClellan So it’s dealt with at the time by the police.

President Skinner Yes, at time by the police.

Peter McClellan So that the police can do what to the child?

President Skinner For a summary offence, I think they just give them a warning and then indicate that the matter’s been dealt with by a warning.

Peter McClellan So, in some cases the police or the police person will just administer a warning and the child is free to go.

President Skinner That’s right as I understand it, and I think there will be different delegations within the police for who’s capable of making these decisions. But from my perspective, the warnings never come to the court.

Peter McClellan Right, and the alternative to the police issuing a warning is what?

President Skinner I think sometimes it would be an infringement notice or a court attendance notice for those summary offences.

Peter McClellan And so under the Young Offenders Act, the police may decide to do more than caution, but to bring the child before the court-

President Skinner No, sorry to interrupt. I think it’s a determination that they make about whether or not to take an action. So the police have enormous discretion in how they respond to incidents involving all people, but particularly with children. And if they see something or have heard of something, they then have to decide what action to take.

So whether to take no action, whether to take one of the Young Offenders Act actions, whether to give a child a court attendance notice, or to charge them, and then whether or not to give bail. So the warning is the lightest touch action for summary offences, offences that carry two years or less, where the police decide to take an action and for that action to be the warning.

If the police decide to take an action, the Young Offenders Act applies for matters that fall within the table two and table one and summary offences. So standard table one offences would be break and enters, steal from person, affray, assault, assault occasioning actual bodily harm. The table two offences would include shoplifting. I think some damage, destroy property type offences. Summary offences, use offensive language or offensive conduct in a public place.

Those matters can be referred or dealt with under the Young Offenders Act and once the police exercise their discretion to take an action, they can then say, I would consider charging you with an assault occasioning actual bodily harm. Will you admit the offence? And if you admit the offence, I will then decide to caution you and the child would be coming back to the police station, I think normally two to four weeks later, with a support person and get a formal caution. Or that they might decide to refer them to a youth justice conference and that is not done with the oversight of the court so that a youth justice conference referral would mean that the charge effectively is referred to Youth Justice that within six or eight weeks they would convene a conference where the child would attend with a support person. Sometimes they’d attend with a victim. Sometimes they might attend with a police officer. There would be representatives occasionally from a youth service or the PCYC or something, and the young person would be asked to confirm that they’ve admitted their involvement in the offence and to identify different things they could do as a component of an outcome plan to try and accept responsibility and compensate for the harm that has been caused through their actions.

Peter McClellan So this is all activity at the moment, or responses that are conducted by the police.

President Skinner That’s right.

Peter McClellan But the police may decide to bring a charge in which case it ends up before the court.

President Skinner That’s right.

Peter McClellan And that charge is prosecuted by the police before the court?

President Skinner Yes. If the police decide not to use the Young Offenders Act, and there will be a range of reasons for that, sometimes it might be that an offence is too serious, that a child might have a significant history, that the child is not admitting the offence or they can’t get the people in place to line it up.

The police might decide that they would like those proceedings to go before the court. They can decide that by a court attendance notice where they give a child a date and say in the next three to six weeks you will turn up before the court.

Or they might decide to charge the child and grant them bail, or refuse them bail, and say you’re going to turn up before the court in custody for the court to make a decision about the charge, but also about bail and then the court gets a second go at using the Young Offenders Act where we are able to caution a child or refer them to a youth justice conference.

Peter McClellan Right. So once the matter comes before the court you have the same range of discretions as the police had initially, but of course you have other powers which we will come to in a moment.

President Skinner That’s right, there are some caps on it. The police can’t refer graffiti matters to a Young Offenders Act outcome, that graffiti comes to the court first, and charges like intimidation and breach AVOs are under a different piece of legislation to the Crimes Act and at the moment they’re not eligible for Young Offenders Act diversions.

Peter McClellan They come to the court.

President Skinner The court will ask them to enter a plea of guilty or not guilty.

Peter McClellan Well then, the matter comes, or the charge is brought before the court, and it may be a matter which is fought in the summary jurisdiction of the court but of course it may also, I assume be an indictable matter that comes before the Children’s Court.

Now, can you help those who are listening to understand the difference in your court between a summary matter and an indictable matter? How do you first of all, treat or deal with the summary matter?

President Skinner I think as a starting point, both the Children’s Court and the Local Court can be clearing houses to some extent in that every single charge for a child will come before the Children’s Court. The determination is, we can only finalise some charges and they’ll be carved into summary matters, indictable offences and then serious children’s indictable offences.

The jurisdiction we cannot finalise are the serious children’s indictable offences and they are offences that carry broadly 25 years or life imprisonment.

Peter McClellan So that could be murder, manslaughter.

President Skinner Some of the terrorism offences, serious aggravated sexual assault, wounding with intent to inflict grievous bodily harm. Those types of offences. We will be a committal-type court.

Peter McClellan So you just operate as a normal Local Court.

President Skinner Yep, and then we commit a matter to either the District or Supreme Court depending on the charge. What is unique in the Children’s Court is that some other very serious offences can be finalised in the Children’s Court. So offences like aggravated sexual assault, where the circumstances of aggravation is age, robbery in company, aggravated break and enters, drug supply, dangerous driving causing death. That would be one that we see unfortunately, more frequently than we’d like to. Those matters can be finalised in the Children’s Court.

Peter McClellan So they’re brought on....

President Skinner No, they’re part of the court attendance notice. It’s never formally indicted. They just come into our ordinary list. You walk in one day and you open the file and realise that there’s a grieving family waiting for you to sentence somebody.

Peter McClellan And you’re confined, if you choose to exercise the jurisdiction which allows for imprisonment, (we’ll call it that at the moment), you’re confined to two years.

President Skinner Per offence with a cap of three for an aggregate. So I suppose in looking at our summary and indictable offences, the summary are quite straightforward. We just deal with them in sentencing and we’ll talk about that.

With the indictable offences we do have the capacity to make a determination that the charge could not properly be disposed of in a summary manner, and then for those matters to be transferred to the District Court for trial or for sentence.

Peter McClellan Having had a preliminary hearing.

President Skinner Well the problem, maybe I shouldn’t say problem … Having had a preliminary hearing is that if there is an indictable offence that’s quite serious or the child has got a serious history and they’re pleading not guilty, we have to hear all the prosecution evidence before we make a determination about whether it can be disposed of properly in the summary manner.

Peter McClellan That’s the old traditional committal hearing.

President Skinner It is. So we’re still in that process, but then at the point that we’re determining whether or not the child should be committed to the District Court for trial, we have no background information about that child at all. We’ve only got the prosecution case. Whereas in sentence proceedings where a child has pleaded guilty, if we are of the view that the offence is too serious and that we would be looking at something more substantial than the two year for one offence or the three year for multiple offences, we would normally have a background report that might give us some psychological history and educational and family history of the child which would inform a decision about whether or not it could properly be disposed of by way of a sentence in our jurisdiction.

So there’s some work for us to do on that, but it means charges are carved up into different categories. The Children’s Court has the capacity to finalise more categories than the other courts, but we still are able to identify when there are matters that we do have the power to finalise, but the two year sentencing restriction means that it would not properly be dealt with before us and we need to transfer it to someone else.

Peter McClellan What sort of offences would fall into that category, potentially? I mean you’ve got the serious indictable offences, as we’ve mentioned. What are the other types of indictable offence that might arise where you would refer it off to the District Court?

President Skinner Sadly, they’re frequent offences, the aggravated robberies, we’re seeing more stabbings, so we’ll see the reckless wounding charges. The dangerous drive cause death charges will be one that we need to make a determination about. I think there’ll be some drug supply matters. But generally anything that would be determined to be more serious by the community when they’re considering how to meet the purposes of punishment.

Peter McClellan Now, for the purposes of the work that you do with a child, I think is a person under the age of 18 years.

President Skinner Yes.

Peter McClellan So we’ve been talking about children, but I think it’s possible that an offence may be committed when a person is under 18 years of age, but they’re not charged until after they’ve turned 18. Is that right?

President Skinner That happens frequently. Our jurisdiction is available to people who are under the age of 21 when they’re charged with an offence that occurred when they were under the age of 18. But I was a criminal lawyer before I came to the bench and there are a number of, particularly historic child sexual assault matters, where there will be people who are prosecuted many, many years later for offences that occurred when they were a child. It’s really difficult assessing how to deal with them, recognising that if they’d come before the Children’s Court when they were 13, they would have been dealt with in a very different way than when they’re at the District Court as a 35 year old for something that happened many years ago.

Peter McClellan Yes, I can understand the complexities of all that. Back to the summary matters. What are we generally looking at there, what types of offences?

President Skinner The Summary Offences Act captures those use offensive language, anything like trespass is part of the Enclosed Lands Protection Act. Offensive conduct, and enter vehicle without consent, violent disorder, fall under the Summary Offences Act. The Crimes Act, if I’m thinking about the offences that carry a maximum of two years, I think that there are a couple of violent offences like assault or there’s unlawfully cause grievous bodily harm, I recall, that exists, and I think it carries two years, and my recollection is that those summary offences are the offences that carry two years or less.

Peter McClellan Now I know you won’t have the precise statistic for this, but what proportion of the matters that come before you would be summary matters as opposed to a form of indictable offence?

President Skinner I would think we are looking at many less summary offences than indictable offences, in part because the police are diverting those less serious offences from the court.

Peter McClellan That’s interesting.

President Skinner Our primary offences will be shoplifting, assault, assault occasioning actual bodily harm, damage and destroy property, intimidation, breach AVO, break, enter and steal, robbery and sexual intercourse without consent.

Peter McClellan You often hear of the old days when the police would give little Johnny a bit of a warning and send him on his way. Is it right to think that that’s effectively still happening although they now provided by statute and the police empowered to give warnings, and as it were send little Johnny on his way, hopefully to behave properly thereafter. Is that the way we should look at it?

President Skinner Yeah, perhaps to some extent it’s not a bad way of looking at it. I think that in smaller communities policing was part of the community’s response to this very difficult life-stage and police might know some of the kids and then be able to deal with them in a particular way and use the relationship the kid had with their family or their church or their teachers to try and encourage the child to display better behaviour. This is a way of standardising it and I think there are vastly different referral rates across different police commands. So yes, it does formalise a way of saying you’re in a difficult life-stage. It doesn’t mean that this is because you’ve got a broken character; it means that you needed to learn the difference between right and wrong, and that you’re personally responsible for your actions, and we want to work with you on understanding that to help you remain in the community. I think that’s what it was intended to recognise, and that’s what it does recognise.

Peter McClellan And I take it from your perspective it has some pretty good results.

President Skinner Yeah, and statistically and I can have a look at that too. It does have very good results. The kids who get a caution are much less likely to reoffend than the kids who come straight to court. And I’ve thought about it because I think adolescence is a really difficult stage of life, and we have so many levers to motivate good behaviour, so poor behaviour starts to show up at school or at home, and normally parents will say if you keep doing that we will tell your teachers and if it continues then school and parents use the police as a threat. And I think we want each of these stages to really maximise the threat aspect of trying to encourage the child to take responsibility and make some changes themselves.

So the Young Offenders Act prevents the kid from going into custody straight away and then being separated from their family and scared and alone and depressed and anxious.

Peter McClellan And I assume avoids a criminal record.

President Skinner And avoids a criminal record. It just means that you’re really maximising their opportunities to say OK, I’ve strayed and I’ll fix it rather than just bringing them straight into court to say well now we’re gonna deal with you in a punitive way.

Peter McClellan Well then assuming that the child that’s come to the Court before you or one of your colleagues can’t be dealt with under the Young Offenders Act by reason of the nature of their offence or other offences they may have committed, what are the remedies, as it were? What are the approaches that your court can take to dealing with such a child?

President Skinner We have a range of different sentencing options under the Children (Criminal Proceedings) Act and we are able to effectively dismiss the matter with a type of caution where we record that something’s happened and we take no further action.

Peter McClellan So again, no criminal record.

President Skinner Well, for a child under 16, we can’t impose a criminal conviction and for a child between the ages of 16 and 18, we can. We have a discretionary option to record a conviction or not.

Peter McClellan So there’s a presumption that will operate in favour of the child between 10 and 14. But you then say that up until the age of 16, your court cannot impose a conviction?

President Skinner We can impose a penalty without a conviction.

Peter McClellan So does that apply only to an offence which would fall within the summary jurisdiction?

President Skinner A summary or an indictable offence – if a 15 year old came in on a robbery in company, I could sentence that child to a 12 month probation order without a criminal conviction. I could give them a community service order without a criminal conviction.

Peter McClellan Right, so up to the age of 16, you have a capacity to impose effectively a form of sentence.

President Skinner Exactly.

Peter McClellan But no conviction would be recorded.

President Skinner Even a control order without conviction and then 16 to 18, it’s discretionary. Do we determine that we will impose a conviction, and even if the conviction’s imposed under the Criminal Records Act, I believe it’s spent within three years, unless they reoffend in that 18 to 21 year old age bracket.

Peter McClellan And what is it that motivates one of you or your colleagues to record a conviction as opposed to not recording a conviction?

President Skinner Oh, this is going to be one of those areas where people exercise their discretion differently and it might depend on what impact they believe the conviction might have on the child’s prospects of rehabilitation. So if a conviction were to interrupt a child’s passage towards employment or travel or travel as it relates to employment, then they might be more likely not to impose a conviction and if there is something that is of such seriousness or there’s something particular about the child that makes them believe that it’s really not going to make an enormous amount of difference to their future, they might determine that it’s more appropriate in the interests of community protection, that a conviction be imposed or recognition of harm to the victim, or denunciation.

Peter McClellan And if you’re dealing with someone who has passed 18 years of age at the time that they’re brought before the court, but the offence was committed before they were 18, is the position the same?

President Skinner I believe so, but I feel like I should check the law before we do anything with it, but I think we’re still imposing a sentence within our sentencing regime and within that there are limits on being supervised by Community Corrections when they’re over the age of 18. A children’s community service order can only be imposed for Youth Justice to supervise it. There are these little traps that come up.

Peter McClellan What are the range of penalties that you can impose on a child that comes before the court?

President Skinner OK, so the range of penalties that we can impose we can deal with that what we call a 33(1)(a) which is no conviction, the matter’s dismissed. Proven but dismissed. We can put a child on a no conviction bond under 33(1)(a)(ii). It’s effectively a good behaviour bond with no conviction but in the Children’s Court because a conviction is discretionary.

Peter McClellan Effectively a good behaviour bond.

President Skinner It’s just really indicating on the sentencing hierarchy, it’s at the lower end. We can then impose a good behaviour bond under section 33(1)(b) and the bonds can only be imposed for up to two years.

We can defer sentence and make a determination down the track like a Griffiths remand of let’s see whether the child can engage better in educational programs or therapy and we’ll keep an eye on them. We can impose fines, and I think the fine cap is about $1000. It might have just gone up to $1100, but we have to take into account the child’s capacity to pay.

Peter McClellan When the court is considering whether or not to impose a good behaviour bond or a juvenile probation order, I assume you have a range of conditions that you might decide to impose upon the child. Can you tell us what those conditions might be?

President Skinner Every bond will have a condition that a child has to be of good behaviour. So if they commit an offence during the duration of the bond, they’ll come back before the court to be resentenced for the offence they were placed on the bond for and we ask them to let us know if their address changes so we can find them.

It would be fairly standard for us to put Youth Justice supervision in place as a condition of a bond, where Youth Justice do an exceptional job of identifying what the particular needs of a child are to try and reduce their offending. So as a starting point, they might get their identification. But they might look at employability factors or family supports to try and help the child do other things and or to reengage in school. And they’ve got some cultural programs to help children better become part of their identity or to connect into their cultural identity.

Sometimes there might be other conditions that we put in place and occasionally there might be mental health conditions for treatment. There may sometimes be some conditions that people would use about attending school or not going to certain places. We’ve got the capacity to put non association and place restriction conditions in place as an additional order to bond.

But generally, I would hope that on any condition that we’re imposing on a child, we’re only doing what’s necessary to reduce the risk of reoffending because we’re not trying to extend the range of matters that will have them back before the Court. We’re hoping that we can come up with a solution that stops them from getting into trouble again and gives them the support they need to do that.

Peter McClellan So do we understand that you can impose the same range of conditions in relation to a good behaviour bond as you can impose in relation to a probation order?

President Skinner Yes, the same.

Peter McClellan And that extends, I think, to confining the child to not go to certain premises.

President Skinner Yes, if we put a place restriction order in place it. You can do that for the bonds or the probation.

Peter McClellan And what might motivate you to impose restriction like that on the child? What sort of problems is that design to address?

President Skinner Well, as a person who sat for a while in a regional area, you become very familiar with some young people and their groups of friends and the places that they like to visit and I could identify some bus stations or skate parks where groups of young people would congregate and that quite serious crimes would frequently occur, so that when you have a person that you’ve seen often and you know that they’re always committing crimes with the same bunch of people, and that they’re often committing them in the same place that you might impose something to try and break that cycle of those affrays that occur at skate parks.

Peter McClellan So you can confine where they might go. Can you also confine the people they might mix with?

President Skinner Yes we can put in a non-association order in place and we tend to do that for a limited term. So we might say that “you’re not allowed to see Jack for six or 12 months, and if you see him, you have got to go the other way”. So it’s a sentencing alternative. There are other ways that those orders can be placed through something like an apprehended violence order, but this is more about breaking up friendships than it is trying to control risk within a friendship.

Peter McClellan And tell me is it successful?

President Skinner It successfully brings children back before the court. To some extent, I think it’s a very difficult life stage and there’s a level of criminality that has already occurred before we would even consider putting in a non-association or place restriction in place so that young person is already comfortable breaching some rules.

Peter McClellan Is rebelling to some degree.

President Skinner And sometimes we just give them something else to rebel against and we make that relationship more exciting.

Peter McClellan And if they do rebel again and come back before you, what happens then?

President Skinner I hope that we are very focused on outcomes where rather than coming down hard on them, we might understand where that behaviour comes from and try and help them to make a choice to do things differently because they would like to avoid being locked up.

So yes, that we’d have the opportunity on the breach to re-do a sentence, particularly, if they’ve breached a bond or probation. We will re-do a sentence, but sometimes we might look at it and realise that the offence that they were sentenced for happened some time ago, that they have made some significant gains and that we want to recognise that actually they’re integrated quite well in the community at the point they come back before us, that they’re on the path to become the people that we as a community need them to be, and we don’t want to disrupt what is a positive path by taking some action because they were disobedient of an order that we made.

Peter McClellan And you say you have the option though to resentence, what would that involve at that point?

President Skinner Well, if a child comes before us on a breach of a good behaviour, bond or probation, say that a child had been charged with the robbery in company. It carries 20 years in jail, it was the first time they have come before us and we made a determination that they should be on a probation order for 12 months. If they committed a shoplifting nine months in and they came back before the court, we would then relist the robbery in company and we would look at giving them another sentence for the robbery in company. So then we’d have to say, well, we can take no action and we can leave the next three months for the probation order before it finalises; we can resentence them and give them a further longer probation; we can give them a community service order; we can give them a control order so it just gives us another turn.

Peter McClellan Let’s come to those two because we’ve so far progressed from good behaviour bond, fine, through to juvenile probation order, but now I think things get more serious when we go to look firstly, at children’s community service orders, what do they involve?

President Skinner A children’s community service order, we can only impose when we’re of the view that it is as a direct alternative to a sentence of imprisonment. So it’s a very serious order for the Children’s Court.

About 40% of the children’s community service order could be programs like therapeutic interventions and there are some limits depending on an age of how many hours we can order a young person to serve, but we can order a person to perform community service. We can do that as part of a bond or probation as well that it can be in addition to one of those broader supervisory orders and a young person would then be supervised by Youth Justice to go and do a number of hours working in the community, and that might be lawnmowing or cleaning graffiti.

Peter McClellan And if they breach that order, do they come back again before the court with the prospect of resentencing?

President Skinner They sure do, and if they breach that order, I think we must resentence. We might give them more opportunities to do it, but we’ll have kids who we’ll order to perform 200 hours of community service. That is where you’ve made a very difficult decision that it might be something they should be locked up for, but you want to give them the opportunity to remain in the community. And some kids don’t do an hour of that, and when that comes back before the court you don’t have much alternative. You can’t then scale it back (I mean subject to particular circumstances), but you’d generally be saying look this was an option for you to show that you didn’t need to be locked up and you didn’t exercise that option.

Peter McClellan Now then you can turn to a suspended control order. Is that right? What does that involve?

President Skinner A suspended control order is a determination that it would be wholly inappropriate to do anything other than impose a sentence of control, and then a determination of how long that sentence should be. So say the robbery in company, you might decide OK, this person should get 12 months in custody.

Peter McClellan So just so we understand, the word control actually means...?

President Skinner Jail. Yes, it’s juvenile detention. It’s being subject to the control of the minister.

So we then say, alright, we’re sending them to jail for 12 months, but for various reasons we might decide to suspend that and that is you have to stay out of trouble for 12 months.

Peter McClellan So it’s a suspended sentence effectively.

President Skinner It’s a suspended sentence.

Peter McClellan Breach that means automatically in jail. Is that how that operates?

President Skinner Yes. It has picked up on the old Local Court law or the old adult sentencing law, that if a suspended sentence is imposed and there’s a breach that’s not trivial, that then the court would impose a control order or full-time sentence of imprisonment, but it’s called control. It means the same thing that they’d go into a juvenile detention centre. There are difficulties with these because we’re still caught by some of the adult sentencing caps, so that if a sentence is six months or less, it must be served full time.

If a sentence is six months to two years, we can set a non-parole period. So that if a child is given a four month suspended sentence and breaches that, they have to go in for four months. If they’re given an 18 month suspended sentence and breach it, they might go in for two months and then spend 16 months in the community on parole. So there’s a lot of flexibility in how a parole order is managed within the Children’s Court because a breach of parole comes before the Children’s Court Parole Authority and again the focus is different from the focus for adults in how do we help them integrate in the community? And parole and probation gives them supports by way of supervision to help that child become a more positive member of the community. And we’re continually using that lever of imprisonment to motivate better behaviour from them, rather than just locking them up and teaching them how to live in a jail. Because we don’t want 10 to 18 year olds only to know how to live in jails. We want to teach them how to live in the community.

Peter McClellan Are many juvenile control orders imposed by the court in the course of any year is it, frequent?

President Skinner It’s not infrequent, that over the last few years we proudly have brought down the numbers of juveniles in detention and there have been, I think, a couple of juvenile detention centres that have closed because the numbers have come down significantly.

President Skinner And that there is still an enormous over representation of young Aboriginal offenders in custody. And I think at the moment there would be 200 to 240-ish young people in custody in New South Wales and I think about 80% of them will be on remand, whereas it used to be about 65% were on remand. But yes, there are times when sentencing considerations mean that the child must be removed from their community and placed into custody.

Peter McClellan Now we talked earlier about the approaches which the court can take, short of bringing a charge. Effectively the diversion option. There’s another alternative as I understand it, which is referred to as a youth justice conference. Can you just tell us a little bit about what that is?

President Skinner So the youth justice conferences I believe were developed now over 20 years ago and it is a restorative conferencing process that happens in a number of jurisdictions by way of legislation that comes through the Young Offenders Act, and that’s where I was saying that police can divert to a youth justice conference, as can the court. If a child comes before the court and they admit an offence, we’ll then adjourn it for six or eight weeks for them to go and do the conference, and they don’t need to come back to court if they go to the conference and they come up with a plan and they complete the outcome plan.

Peter McClellan Let’s just pause for a moment. They go to the conference. Who will be at that conference?

President Skinner A youth justice conference will be attended by a conference coordinator who’s organised by Youth Justice. There would be a child and a support person for the child. Ideally there’ll be a victim or a representative of a victim, and there might be some member of a community organisation or the PCYC or something that assists in identifying what the best parts of an outcome plan might be. An outcome plan …They will be diverse. They’ll often include a letter of apology. They might include a clean-up order, sometimes they’ll include going and doing some sessions at the PCYC. I always ask a young person to invest some of themselves in an outcome plan, so sometimes there’s a rap or there’s a video about peaceful forms of protest. There was a young Aboriginal boy that created a wellness garden at the school, that he’d damaged when he’d gone in on a weekend, for an area for others stressed young people to spend time in when they were feeling upset at school.

There was some opportunistic mother who got her child to sign up to emptying the dishwasher three times a week and walking the dog. That’s not normally what we’ve seen in an outcome plan, but obviously that was a strong advocate mother who was in attendance. But I really, really like youth justice conferences. In the second reading speech when they brought the bill through, there was a comment that they exist for serious offending and I use them for serious offending because there is an alternative to a bond and I think people should try to be good anyway. So I think that the youth justice conference is a very good way for a young person to talk about what caused them to offend and to hear about the impact of their offending on someone else and to apologise and make amends. And I think that that is a really useful process in helping them to not reoffend because they’ve understood the consequences better than they would if we just talked to them at court.

Peter McClellan So the person controlling this conference seeks to have the young offender discuss their motivations and their capacity to change the way they’ve been behaving. What role does the victim have to play in in this conference?

President Skinner I understand that a convener would speak to the young person and the victims separately prior to the conference, and then the victim would be given the opportunity to express the impact of the crime on the victim and the benefit of them is that victim satisfaction is much greater than through an ordinary criminal justice process. So there’s been research from other jurisdictions where a number of quite serious offences are dealt with by way of restorative conferencing, and I think the research had shown that victims wanted acknowledgement that something had happened to them and they wanted a person to indicate that they wouldn’t do it to anyone else, and they didn’t necessarily always want an offender to be locked up. They just wanted to make sure that they’d been heard and the harm had been recognised.

Peter McClellan Do the victims have a capacity to say what they would like to see happen to the child?

President Skinner I think it would depend on the convener, and I think that sometimes there will be that round table conversation and sometimes the victim won’t be able to contribute anything of use or it might not aid the conferencing process for them to contribute.

Peter McClellan And do conferences always end up, at least at that point in time, with the resolution as to the child’s future behaviour? Or do some of them not work?

President Skinner Some of them come back to court and say the young person didn’t attend or didn’t contribute, but certainly we’re looking at a life stage that has some poor attitudes and that’s a very confronting process. And there are certainly occasions where people have gone to conferences and then continued to offend. So there will be some people who learn from those early diversionary lessons, and they never come back before the court, and there will be others who are given opportunities, but they continue to engage in those types of behaviours and come back before the court. And there are a whole range of reasons for that, and I would like people to always consider that many of the offenders in the Children’s Court could also be looked at as victims, that their life experiences have been adverse, many from when they were babies. And there’s not been good role modelling and they’ve been exposed to trauma and abuse. And sometimes they’re behaving as they have seen. And I think we hope to treat them with some empathy and consideration and opportunity rather than to look at these people who are acting out the life that they’ve known and then to lock them up for that. Because I’m not entirely sure it’s all their fault.

Peter McClellan And again to the numbers, how many youth justice conferences would we expect to see held in a year in the state?

President Skinner I think there would be hundreds.

President Skinner But because the police are referring them and we are referring them, there are hundreds.

Peter McClellan And how many of them would fail? How many would come back to the court?

President Skinner Less than 10%.

Peter McClellan Right? So it’s a fairly productive way of going about helping young people onto the right path.

President Skinner Yes, I think it’s a really effective way of addressing those principles of sentencing, but doing it in a way that gives the young person some autonomy, an opportunity to make the changes themselves.

Peter McClellan Now I think that the court has been given by the legislation some overarching principles that you’re required to apply when you look at how to deal with young offenders. And I think they’re fairly strong in the way that they guide the court’s work. Can you talk to us a little bit about what they involve?

President Skinner Yes, so the Children (Criminal Proceedings) Act has some guiding principles and they come in under section 6. And they talk about that children have rights and freedoms before the law equal to those enjoyed by adults. In particular, a right to be heard and a right to participate in the process that leads to decisions that affect them.

Children bear responsibility for their actions, but because of their state of dependency and immaturity, require guidance and assistance.

It’s desirable to allow the education or employment of a child to proceed without interruption.

It’s desirable, where possible, to allow a child to reside in their home.

That a penalty imposed a child shouldn’t be greater than that imposed on an adult for an offence of the same kind, and

it’s desirable that children who commit offences to be assisted with their reintegration into the community.

It’s also desirable for children who commit offences to accept responsibility for their actions and make reparation where possible, and that subject to the other principles, consideration should be given to the effect of any crime on the victim.

And I’ve been talking to one of my colleagues recently about this, because we apply adult sentencing law in section 3A in making a determination about what factors to consider when sentencing so we don’t have specific sentencing principles for children. This sets up the guiding framework for the Children’s Court in recognising the difficulty of adolescence, and it helps us put a focus on rehabilitation that might be greater than if we’re sentencing an adult, but that we are still applying section 3A of the Crimes (Sentencing Procedure) Act  as to the purposes of sentencing, and perhaps there’s scope to look at whether or not those principles of sentencing are as applicable to children as they are to adults.

Peter McClellan I think there’s been some guidance also from some common law decisions that have been made over the years to try and focus particularly on children.

President Skinner Yes, that’s right.

Peter McClellan Finally today, can we just have a chat about the Youth Koori Court and how that operates in relation to young people?

President Skinner The Youth Koori Court was established, I think it started in Parramatta some years ago with Magistrate Sue Duncan and the aim being to provide some support to young Aboriginal offenders in the hope that we could reduce the risk of incarceration and to help gain better outcomes for them.

Peter McClellan I think there was a recommendation also that came from the Sentencing Council in 2010, which suggested that there should be a Youth Koori Court in New South Wales. So it must have been an accumulation of factors that brought it.

President Skinner A combination of factors. It wasn’t resourced initially and it wasn’t resourced for the first few years, so I think that the start of it had been identifying what was happening in other jurisdictions and the Victorians have got some really good initiatives in working with Aboriginal people, and trying to bring some of those initiatives in to work with different stakeholders within youth justice and the courts to have them collaborate effectively to provide some support to children. So that where children have entered a plea of guilty and identify as Aboriginal or Torres Strait Islander, they can then be referred to the Youth Koori Court to be assessed as to whether they’re suitable to engage with those wrap-around supports that work with them and their sentencing is deferred while they engage with the supports, and that might be getting confirmation of Aboriginality, getting identification documentation, lining up some of their white cards for employment or getting back into school, sorting out housing, reconnecting with family and sport, youth worker, any of those sorts of things, and I think generally there would be children in the Youth Koori Court for many months while people are working with them to identify what their goals are and try and help them affect those goals.

Peter McClellan So a young Aboriginal child commits some sort of offence and they’re diverted then, if possible, are they, to the Koori Court, that’s the first step?

President Skinner Yes, that’s right.

Peter McClellan That assumes that the police haven’t been able to deal with the child at the police station, as it were, that it’s necessary to come to the court. Then they’ll be diverted to a Koori Court rather than a normal court.

President Skinner And that’s right only at Parramatta and Surry Hills at the moment, and only after a plea of guilty.

Peter McClellan So the country Aboriginal child doesn’t have access to a Koori Court?

President Skinner Does not have access, no.

Peter McClellan And those two locations take children from how far afield?

President Skinner I think they try and be quite flexible and it is about where geographically the offence occurred and then whether the child can engage with the supports in that feeder area.

Peter McClellan So they’re taken into the Koori Court in that area, they are then given the support that you indicated. What happens after that?

President Skinner I think the aim is to try and reduce them, the number of people who get a control order and the length of control orders so that it would be less likely for a young person who’s been through the Koori Court to end up with a control order if they’ve been able to show that they’ve reduced their drug use or they’ve become drug free and they’ve got stable housing and they’ve engaged with employment or they’re back at school.

Peter McClellan So they’re effectively brought into the court system, but at that point in time, they’re given the opportunity to demonstrate that they are capable of changing their behaviour and working effectively in school or in the community otherwise.

President Skinner That’s right.

Peter McClellan And the support mechanisms that come from family in the Koori Court, are they identified as well?

President Skinner There’s an elder who sits with the magistrate in the Youth Koori court, and they have been phenomenal and they work really closely with the supports. If a young person wanted to bring a family member, they could. I was in the Youth Koori Court this morning and saw two children and neither of them came with family members, but unfortunately they were both young people in care. But it is … there is a much more flexible engagement in a conversational style of people talking about what the young person’s aspirations are, what they’ve been doing to achieve them, really celebrating their successes, and sometimes they’ll be applauded for the things that they’ve managed to achieve in an adjournment period. Then everyone will be identifying what the kid needs to do before the next court date and then celebrating when that occurs.

Peter McClellan And if the child then fails at any of those points along the way, does the court then turn to sentence the child in the conventional way?

President Skinner Yes, so they can fail because they disengage or they can fail because they reoffend and then the Youth Koori Court generally would sentence them. But sometimes they’ll be sentenced by someone else.

Peter McClellan And how long could the process of, as it were, supervision be before the Court either discharges the child altogether or regrettably has to sentence?

President Skinner The Griffiths remand, that section 33, is a 12 month process of assessing rehabilitation and then if in that period of time, the Court determines that the child wants a community based order, they’ve got the capacity to keep them under youth justice supervision for a couple of years under the bond or probation. But the intense period of intervention with the Youth Koori Court should fall within that 12 month count.

Peter McClellan Ellen, thank you very much for coming and talking to us today. The work that you do is of immense importance to everyone in New South Wales, and we’re very pleased to hear from you as to how you go about it. We wish you the very best with your future endeavours.

President Skinner Thank you.

Peter McClellan You have been listening to Judge Ellen Skinner, the President of the NSW Children’s Court. This podcast, Sentencing Explained is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening. 

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today is Theo Tsavdaridis a Deputy Chief Magistrate of the NSW Local Court. The Local Court deals with the great majority of criminal offenders, both minor and the more serious. The court frequently explores the range of sentencing options available, and His Honour will talk about those options, and how magistrates approach the sentencing of offenders. Welcome Deputy Chief Magistrate.

Theo Tsavdaridis Thank you and welcome to the Local Court, Peter.

Peter McClellan I want to talk today about all of the work that the Local Court does in relation to crime, and in particular in relation to sentencing.

Peter McClellan The court now does a great many criminal cases during the course of any year. Do you have any idea how many you do?

Theo Tsavdaridis We have about 360,000 criminal matters a year. About 90% of the state’s crime starts and ends in this court and if you can just imagine the District Court and the Supreme Court are busy, we are drinking from a fire hydrant.

A lot of our work though is work that is at the bottom end of the spectrum of seriousness. Although we are getting more and more serious matters along the way.

Peter McClellan I’ll come to that because I want to talk in detail about the options that are available when sentencing in the Local Court.

Peter McClellan But does that mean that in the course of any one year there would be thousands of sentences handed down by Local Court magistrates, correct?

Theo Tsavdaridis Correct.

Peter McClellan And the range of crime? I know it’s impossible to capture all but the range of crime that you might be sentencing for, does that range from serious assaults through to really petty, as we call petty crimes?

Theo Tsavdaridis Yes, absolutely. So we have a lot of domestic violence matters. We have common assault, stalk, intimidate. We have assault occasioning actual bodily harm. We have grievous bodily harm type matters. And we have in the main break and enter simpliciter, we have some of the aggravated forms of break and enters many of which end up in full time custodial terms, of course. In terms of imprisonment and the like, we have a jurisdictional maximum for a single offence of two years and collectively speaking, when dealing with multiple offences, up to five years.

Peter McClellan And I take it you, as one of the Deputy Chief Magistrates, often are called upon to sentence offenders?

Theo Tsavdaridis Absolutely. You are correct.

Peter McClellan The lowest step is to find the offence proven but dismiss the charge.

Theo Tsavdaridis That’s s 10(1)(a).

Peter McClellan Right now, in what sort of circumstance would that be the outcome?

Theo Tsavdaridis Well, section 9 and section 10 of the Crimes (Sentencing Procedure) Act tell a magistrate some of the things they need to take into account. For example, they need to take into account the person’s antecedents they need to take into account their age. They need to take into account any health or medical condition. They need to take into account their character, the triviality of the offence, any extenuating circumstances, and of course, the catch all – any other matter the court thinks proper to consider.

Peter McClellan Yeah, and so just give us some idea in real life what sort of offence and circumstances of an offender might result in that?

Theo Tsavdaridis Well, it applies to a vast array of offences. But I might impose a section 10(1)(a) for example, on someone who has a fairly unblemished record, is unlikely to reoffend, has good prospects for rehabilitation, this was an aberration both as to character and having been at the wrong place at the wrong time or myriad of considerations, I would look to and then come to the conclusion that the sentencing discretion in s 10(1)(a) is adequately in line.

Peter McClellan Right, but then the other options under section 10, can you give us some idea of the circumstances where you might impose one of the other options as opposed to the least punitive option?

Theo Tsavdaridis So that is a section 10(1)(b), conditional release order without conviction. I might impose that in circumstances where I wanted the defendant to prove his or her bona fides to the court, to the community, to himself or to herself. To place them on conditional liberty. To have this sword dangling over them that if they reoffend, particularly in a like way to the offence I’m dealing with, that all bets are off – they are rolled up for that offence and re-sentenced.

Peter McClellan So they are released into the community, but they’ve got, as it were, a sword over them and then if they offend …

Theo Tsavdaridis If they reoffend, particularly in a like way I might then call up the bond I put them on.

Peter McClellan So it’s your option to call up, right? So you get a report from the police, do you?

Theo Tsavdaridis If they’re if they’re charged again, let’s say for example that someone is driving while suspended. They have absolutely nothing on their record other than perhaps some infractions on their RMS driving traffic record which has brought them to a place where they’ve incurred too many demerit points within a short period of time, the RMS has decided to suspend them. They are caught driving while suspended, then they come before me. They have a good history in the main, despite the fact that they have incurred too many demerit points within a short period of time. They might be a young offender. They might be someone who has good prospects for rehabilitation. They’ve done something, they’ve done the traffic offender program. They’ve completed a number of sessions with a particular organisation – lifestyle program with the Salvation Army for example. And so I’ll give them an opportunity. I’ll place them on a good behaviour bond, conditional release order without conviction. And I will warn them.

Three months later, they are three months into a six month or 12-month conditional release order, they reoffend and this time they reoffend in a way that is also driving related, although, not driving while suspended because they’ve managed to keep their licence. For example, they might have done a burnout, they might have exceeded the speed limit by more than 45 kilometres per hour and they come before me again. At that juncture I will call up for breach proceedings and I will re-sentence the defendant for those proceedings and for the fresh matter now, in respect of which he or she has entered the plea of guilty, for example.

Peter McClellan And that resentence at that stage may give rise to a fine?

Theo Tsavdaridis First and foremost it may give rise to my revoking the good behaviour bond and now imposing a conviction.

Peter McClellan Right and then, a fine might follow.

Theo Tsavdaridis It might be a fine. It might be another conditional release order with a conviction. It might be a community correction order depending on the seriousness of the matter.

Peter McClellan First of all, what is a community correction order? What does that involve?

Theo Tsavdaridis The community correction order is a good behaviour bond which is imposed under s 8 of the Crimes (Sentencing Procedure) Act. It can only be imposed in circumstances where the maximum penalty prescribed by parliament includes a term of imprisonment. If it is imposed, it would be imposed with some standard conditions, that is, that the defendant not commit any offence, that the defendant appear in court if called upon, to do so on any breach, and sometimes it’s imposed with some additional conditions.

Peter McClellan So if we go back to our person who’s offended and been conditionally released initially without conviction. They then come back before you. They have committed another traffic offence.

Theo Tsavdaridis But somewhat more serious, for example.

Peter McClellan But more serious, that would potentially carry a gaol term?

Theo Tsavdaridis Could be.

Peter McClellan And you could then impose a community correction order for the fresh one.

Theo Tsavdaridis For the fresh one, and then I would have to consider what I do with the breach proceedings. That is the breach of the good behaviour bond, the conditional release order without conviction. I might find that it nonetheless falls at the lower end of the scale of objective seriousness, a spectrum which we use to determine the gravity of offending conduct, and I might nonetheless deal with it by way of a sentence of lesser seriousness. I’m always mindful, though not to penalty escalate on breach proceedings in circumstances where it would not adequately reflect the seriousness of the offending conduct.

Peter McClellan What are the most common conditions that you would impose on a community correction order.

Theo Tsavdaridis There are six or seven. There’s a curfew condition, community service work condition, although we are limited to the number of hours depending on the length of the community correction order. Community correction orders are usually imposed for 12 months or two years, but they can be up to three years. And there might be a rehabilitation condition or a treatment condition requiring an offender to participate in a rehabilitation programme or to receive some treatment. There might be an abstention condition that is to abstain from alcohol and drug taking. There might be a non-association condition or a place restriction that is prohibiting the person from associating with a person or persons, that is, bad peer groups, or from frequenting or visiting a particular place or area and finally, there’s a supervision condition. That is that he or she be supervised by community corrections during the term of the good behaviour bond.

Peter McClellan And if there’s a breach of those conditions, or any one of those conditions does that person then come back before you again?

Theo Tsavdaridis There are two types of breaches. There’s the ordinary breach where the person has not been engaging … Has not committed an offence but has not been engaging with community corrections. They haven’t been going to the meetings with community corrections officers, formerly probation and parole officers. They haven’t been following the advice of the community corrections officers to seek and take part in treatment, drug and alcohol related treatment. The community corrections officers have sent numerous warning letters they’ve dropped off the register as it were, because they haven’t been maintaining, they haven’t been engaging with community corrections. In those circumstances. The community corrections officer in charge will send a letter through to the court, a breach report, if you will. And I need to make a determination in chambers as to whether to issue a call up notice or, if his or her whereabouts are unknown, to issue a warrant.

Peter McClellan And for those sorts of breaches when the person comes before you, what can you do?

Theo Tsavdaridis I then step into the shoes of the sentencing magistrate afresh and I re-sentence the defendant.

Peter McClellan So as it were, all bets are off and you’re starting again, correct?

Theo Tsavdaridis Alternatively, though, if I think that they have in that short period of time or with an additional adjournment of six weeks or 12 weeks, re-engaged essentially purging their contravention, I might decide to find the breach proved, but to take no action.

Peter McClellan Now you said there was a second type of breach.

Theo Tsavdaridis The second, type of breach, of course, is when they reoffend proper.

Peter McClellan Different crime.

Theo Tsavdaridis Different crime entirely or a crime of a similar nature. So for example, someone is on a community correction order for a domestic violence related offence where he or she has assaulted his or her partner. I’ve placed them on a community correction order, I’ve placed them under supervision, I have imposed a final apprehended violence order, including a condition that they not approach or contact the complainant, their former partner for a period of 12 months or two years. And within 30 minutes of leaving court, so to speak, they have contravened their apprehended domestic violence, order and by doing so, they’ve committed a fresh offence. They are picked up by police out the front of the house, inside the house of their former partner and sometimes having re offended by further assaulting the former partner, and so they come back to court for the fresh offence. For example, common assault and contravene apprehended violence order. They plead guilty – let’s say – I then call up the breach of the community correction order and I sentence him or her afresh for that matter and for the first time in relation to the fresh matter.

Peter McClellan Right. So we’re talking about common occurrences in the court?

Theo Tsavdaridis This happens hundreds of times.

Peter McClellan Is that right?

Theo Tsavdaridis Yes.

Peter McClellan It’s a pretty good break, isn’t it? For someone to be convicted but not suffer any other penalties. But there’s a trust involved in there.

Theo Tsavdaridis There are occasions when it is entirely appropriate and to place someone on a conditional release order without conviction. And then there are occasions when it is entirely appropriate to place on a conditional release order with a conviction. For example, you might put someone on a conditional release order with a conviction in circumstances where they have had the opportunity of not having had a conviction recorded in the past, and so in some respects they’re back before the court. They haven’t entirely learned their lesson but here is another opportunity for them to prove themselves with the only sting in the tail, being that a conviction will now be recorded, yeah?

Peter McClellan What you’re describing is a system that seems to work to achieve reform, or if you like, better behaviour by offenders. There seems to be multiple ways, in which you seek to achieve that outcome.

Theo Tsavdaridis The important aspect to all of this is that whenever we are sentencing someone we are looking at s 3A of the Crimes (Sentencing Procedure) Act that sets out the manifold purposes of sentencing, that is that the offender is adequately punished. To prevent crime by deterring an offender from committing similar offences and so, deterrence is then something that spawns into two avenues, specific deterrence and general deterrence. Protecting the community from the offender. Promoting rehabilitation. Making an offender accountable for his or her actions. Denunciation. Denouncing the conduct of the offender and of course, just as important, recognising the harm done to the victim of a crime, but also to the community because some crimes are not specific to a person. They are more broadly based circumstances which involve the community.

Peter McClellan I think we have to next come to intensive correction orders, is that right?

Theo Tsavdaridis So, there is what I call an imaginary line between the community corrections order disposition, and what happens thereafter. First and foremost that imaginary line is what we refer to as the threshold. And if we are satisfied that no penalty other than imprisonment is appropriate, s 5 of the Crimes (Sentencing Procedure) Act says essentially that the threshold is crossed. Then a term of imprisonment is on the cards.

Peter McClellan What are the circumstances or how do you go about determining that a sentence of imprisonment is the only alternative? What does a magistrate look at when making that decision?

Theo Tsavdaridis It’s a complex process, there are many different and sometimes conflicting factors which the judicial officer needs to take into account. And requires us to identify all the factors that are relevant to sentence – the aggravating factors, mitigating factors – to discuss their significance and then make a value judgement as to what the appropriate sentence should be in all the circumstances of this case.

Peter McClellan I can hear those listening to our discussion though, say: “Well what is it that says you’re above the line that the gaol’s on the cards?” Can you help us to understand that?

Theo Tsavdaridis Section 5 is framed in a way that uses the words “no penalty other than imprisonment is appropriate”. What that tells us to do is to consider all the other possibilities, all the other alternatives, and if they would not adequately denote the seriousness of the offending conduct, then the conclusion to which you arrive is that no penalty other than imprisonment is appropriate. Easier said than done.

Peter McClellan Well, I can imagine a very difficult decision to make, and I assume for that reason, sentencing people is not an easy task.

Theo Tsavdaridis It involves certain individualised justice and it requires judicial officers here and elsewhere higher up the hierarchy, to impose a sentence that is indeed just and appropriate in all the circumstances of that particular case.

Peter McClellan Now we often hear judges criticised at every level of the system because their sentences are too light. It’s a common complaint. When it comes to the decision as to whether or not someone should receive a custodial sentence, effectively gaol, does the fact that the community might have an expectation about what the penalty should be, influence the judge in that decision?

Theo Tsavdaridis I think it’s important to remember, though, that we’re not an instrument of the community. We live in the community. We too bring to our determination processes, just as others do, our own life experiences, our own common sense. And in fact, that’s something that judges direct juries on when dealing with facts in the fact-finding exercise as they find them to be. But the principle of imprisonment is and always has been a last resort.

Peter McClellan And sorry to pressure you on this but I will. Is it punishment that influences that decision? Is it safety of the community?

Theo Tsavdaridis It’s all those factors in section 3A I think. And the judge has to weigh them all.

Peter McClellan In the balance? Does that mean that sometimes, depending on the nature of the crime, punishment may be a more significant factor than on other occasions, or that safety of the community might be more important?

Theo Tsavdaridis It will be. In many cases I have been heard to say in my reasons for decision, in my judgment, that specific and general deterrence in this particular offence, which is a prevalent offence ought to feature prominently. And the way to denote that, in some cases will be, by a sentence of imprisonment, albeit as a last resort.

Peter McClellan Well then, we commenced this discussion with consideration of intensive correction orders as we were going up the scale.

Peter McClellan Now, what are the circumstances in which you might think about an intensive correction order? First of all, what is it?

Theo Tsavdaridis Well, an intensive correction order is a way of serving a term of imprisonment but doing some in the community.

Peter McClellan So the person’s convicted and sentenced to a term which can be no more than two years, having regard to Local Court jurisdiction.

Theo Tsavdaridis For a single offence. Two years for a single offence, but if I’m dealing with multiple offences for intensive correction orders, the term of imprisonment must not exceed three years.

Peter McClellan So, you’ve got this person before you now, you’ve gone through those steps, you’ve decided that nothing but gaol is appropriate. What, then, is the decision-making process which ends up with an intensive correction order?

Theo Tsavdaridis There is a three-step process.

The first question being whether there are alternatives to the imposition of a term of imprisonment. The next step is to determine what the term of the sentence should be. And the third one is to consider whether there are any alternatives to full time in prison in respect of that term and whether any available alternative should be utilised. It’s important to remember that the appropriateness, it was said in that case, of an alternative to full time custody will depend on a number of factors. One is the importance of whether such an alternative would result in a sentence that reflects the objective seriousness and whether it fulfils the manifold purposes of punishment in s 3A, general deterrence, specific deterrence, denunciation and the like. An alternative to full time custody, such as an intensive correction order, you mustn’t lose sight of the fact that the more lenient the alternative, the less likely it will fulfil all the purposes of punishment.

Peter McClellan Well then, so as to help those listening untangle where we’ve got to … we’ve talked about community correction orders. Now we’re talking about intensive correction orders. What’s the difference?

Theo Tsavdaridis Intensive correction orders are imposed as an alternative to full time custody where you have come to the conclusion that no penalty other than imprisonment is appropriate. So it’s a form of imprisonment in the community. In the event of any breach of an intensive correction order, for example, the State Parole Authority takes over just as it would had the person been sentenced to a full time custodial term with a non-parole period and a balance of term.

Peter McClellan And the parole authority doesn’t second guess that, correct? See, it’s not that complex is it? It’s interesting.

Peter McClellan Now what sort of conditions might be imposed in relation to intensive correction orders? What’s the typical sort of conditions you would impose there?

Theo Tsavdaridis One is a home detention order.

Peter McClellan What does that mean?

Theo Tsavdaridis Which means that the person would need to remain at home for the duration of the intensive correction order.

Peter McClellan You mean by that, remain and never leave the home?

Theo Tsavdaridis Correct. That is that they would only be permitted with the supervision or with the knowledge of community corrections officers, to leave the house for predetermined arrangements, a medical appointment, a visit to a hospital, a visit to a particular location to work on set occasions at set times. It’s fairly constrained.

Peter McClellan So, they could be in home detention and also carry on full-time employment?

Theo Tsavdaridis Well, it depends. It depends. if, for example they were in employment which involved them being a courier driving around town, probably not. For example, they’d be permitted to attend the local grocery store. Pick up some essentials. Those people who are on home detention, invariably though, have an ankle electronic monitoring bracelet. And so this would sound in terms of letting authorities know, community corrections know, that they have left home, that they’ve breached their order, and the like.

Peter McClellan And is it common to impose a condition that someone wear an ankle bracelet?

Theo Tsavdaridis Well, putting to one side, home detention for a moment. One of the other conditions I can impose is electronic monitoring. They are on an intensive correction order. They’re permitted to roam the community, but they have an electronic monitoring bracelet which sometimes is imposed as part of a curfew condition. So, for example, I might say, you have been sentenced to a term of imprisonment, being a fixed term of 12 months, to be served by way of intensive correction order. The standard conditions apply and the following additional conditions apply: (a) electronic monitoring, and (b) the curfew condition. That is to say that for the first six months out of the 12 month ICO term, you are not to leave home between 10:00 pm and 5:00 am.

Peter McClellan And so if the person does, then that will register on their system.

Theo Tsavdaridis Be in breach. The breach, coming back to what we said earlier, goes to the State Parole Authority again. It doesn’t come to the sentencing court.

Peter McClellan And what other sorts of conditions might you regularly impose on intensive correction orders?

Theo Tsavdaridis A community service work condition, that is that they perform community service work for a specified number of hours. But if I am going to impose a condition of that kind, I must obtain a sentencing assessment report.

Peter McClellan To be sure that they are capable of carrying out that task.

Theo Tsavdaridis (a) that they are physically capable, and (b) that there is a location at which they can attend to perform their community service work. They’re the inquiries that are usually made by the community corrections officers.

Peter McClellan The lay person, the person listening to our discussion when they hear intensive correction orders would be thinking about well, how is the person corrected? One normally thinks of that as education, but is there any process that is involved in intensive correction orders which is perhaps education?

Theo Tsavdaridis Well, one of the one of the most important conditions of an intensive correction order is supervision. And so community corrections officers will oversee this person’s rehabilitation, this person’s correction, if you will. That will involve requesting that they take part in a variety of programs, a positive lifestyle program, an abstention program, Alcoholics Anonymous, a drug and alcohol type component. They might be required to see a therapist and psychologist. They might be required to visit their doctor to obtain prescriptions, obtain prescriptions in relation to mental health related afflictions and the like.

Peter McClellan And I take it similar conditions can be imposed in relation to community correction orders. Is that correct?

Theo Tsavdaridis Correct, but not a home detention order, but certainly community service work, rehabilitation conditions, abstention, non-association, place restrictions. Things like that, yes.

Peter McClellan So in terms of our increasing levels of severity the marker between a community correction order and intensive correction order is a potentially a greater control over the movements of the offender is that it?

Theo Tsavdaridis In part. It’s important to remember that an intensive correction order is an order which involves a finding that no penalty other than imprisonment is appropriate. That’s not a finding you make in relation to community correction orders.

Peter McClellan No, but in terms of the impact, and that will have an impact, obviously. But in terms of direct impact upon the offender. And again, to help those listening to our discussion, the marker of an intensive correction order in general terms will be a greater control upon the movements of the offender, is that right?

Theo Tsavdaridis Yes it is.

Peter McClellan And that’s done because of the more serious nature of the offending and the circumstances of the offender being in the need of a greater sense of control.

Theo Tsavdaridis That’s right.

Theo Tsavdaridis It’s important to remember though, that an intensive correction order is not available for certain offences. For example, it’s not available for the more serious offences. Manslaughter, murder, prescribed sexual offences, breaches of serious crime prevention, public safety orders, offences involving the discharge of a firearm. And so for those offences it is clearly not available. There’s another aspect to ICO’s though and that is that they can only be made for domestic violence offences where the court is satisfied that the victim of the offence and any person with whom the offender is likely to reside, is adequately protected.

Peter McClellan Well, that takes us to full time custody.

Theo Tsavdaridis OK.

Peter McClellan And again, just to remind those listening, the maximum that a Local Court magistrate can impose by way of custodial term is two years for a single offence.

Theo Tsavdaridis Or five years for multiple offences.

Peter McClellan And is it common to be imposing sentences for multiple offences?

Peter McClellan It is, yes it is.

Peter McClellan Well, can we imagine or can you tell us from your experience, what would be a typical case? Where for single offence first of all where you’ve decided that the person has to be sentenced to full time custody. What sort of case would be typical?

Theo Tsavdaridis Let’s take that for example, the scenario where a defendant is a repeat domestic violence offender. He or she has assaulted their partner on a number of occasions, they’ve been dealt with in the past by way of fines. They’ve been dealt with in the past by way of community correction orders for common assault, for assault occasioning actual bodily harm, for contravening apprehended violence orders, for intimidation and stalking of their former partner. And they come before the court yet again, not long thereafter, having completed a period of conditional liberty for domestic violence offences, and here they are, and this assault is a fairly serious one. It’s one which involved a breach of conditional liberty, circumstance of aggravation, it’s one which involved having detained the complainant and not having permitted the complainant to leave the premises where the complainant resides, another aggravating factor. It involved gratuitous cruelty towards the complainant, another aggravating factor in s 21A(2). And so I look to all of these factors and I decide instinctively that no penalty other than imprisonment is appropriate, that is, to adequately denote the seriousness of the offending conduct. As a single offence for which he or she is to be sentenced, the maximum penalty prescribed by parliament for an assault occasioning actual bodily harm under s 59 of the Crimes Act is a period of five years. Now that’s important because to the extent that terms of imprisonment prescribed by statute exceed the jurisdictional limit of the Local Court, which is two years for a single offence, then the principles set out in the decision of The Queen v Doan , and more recently in the High Court, The Queen v Park, apply such that the objective seriousness of an offender’s criminality is to be assessed against the backdrop of the statutory maximum of five years, not the jurisdictional limit of the Local Court.

Theo Tsavdaridis So for example, I come to the view that this instance of offending which left the complainant with bruises to the eye, with welt marks on the complainants back, with stitches to the complainant’s head, for example, was one which was above mid-range on the scale of objective seriousness for offences of this kind. Against the backdrop of a five-year statutory maximum, I think, for example, that the person should receive a term of imprisonment of about three years. Of course, I can’t impose for a single offence, a three year term.

Theo Tsavdaridis And so if they have pleaded guilty at the earliest opportunity, I take off a 25% discount.

My starting point will still be somewhere in the vicinity of two years because that’s the statutory, that’s the jurisdictional maximum in the Local Court.

Peter McClellan So let’s assume you settle on two years, do you then have to provide for parole for that person?

Theo Tsavdaridis And so I will most likely impose a non-parole period with a period at liberty on parole.

Peter McClellan And what would the likely non-parole period be if you’ve settled on the two year?

Theo Tsavdaridis: Section 44 of the Crimes (Sentencing Procedure) Act says that it would be 75% non-parole period, 25% on parole. If I were of the view though, that there should be a variation in that statutory ratio, taking into account factors like the Bugmy principles for indigenous offenders, taking into account the fact that there are mental health related afflictions under which the person was labouring at the time of the offending conduct, I might vary the statutory ratio to 60/40 or even 50/50. But I would need to provide reasons for the decision.

Peter McClellan Now let’s make it more complex for our listeners. You have an offender who has committed multiple offences and comes up for sentence before you in which event the maximum you can impose, it’s a total of five years. Is that correct?

Theo Tsavdaridis Correct.

Peter McClellan So let’s make the assumption that offender who has come before you is convicted of four similar offences, but on different occasions. How do you go about sentencing that person?

Theo Tsavdaridis I look to each of the offences and I seek to attribute a particular finding with respect to the gravity of the offending conduct in that charge. Not all of the four offences in this scenario will involve the same aggravating factors or the same mitigating factors. And so what we are required to do is first have regard to the principles of totality.

Peter McClellan We’re going to have to unpick that so that our listeners know what we’re talking about.

Theo Tsavdaridis What we’re required to do is to pass a sentence. In some respects and aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act, which is, I quote “series of sentences each properly calculated in relation to the offence for which it is imposed” and then to review the aggregate sentence to determine that it’s just and appropriate.

Peter McClellan Well, let’s as it were, go a bit deeper then. The first offence, you’ve formed the view, on its own, would justify a sentence of two years. Let’s leave aside the parole question at this stage. And the second offence you decide also would, on its own, justify two years. But the third offence would justify … Six months. Six months, and then the fourth offence, to get us over five years would be another, what two year offence? Maybe 18 months? But nevertheless your total for each would be if you just accumulated them, more than five years.

Theo Tsavdaridis It’s not, however, a purely mathematical exercise. In assessing the objective seriousness of an offence, where an offender has committed multiple offences, The Queen v Reyes counsels against indulging in a global assessment.

Theo Tsavdaridis What Justice Howie said in Cahyadi v The Queen was that the sentence, for one offence, is to comprehend and reflect the criminality for the other offence and if it could not, then the sentences should at least be partly cumulative. Otherwise there is a risk that the total sentence will fail to reflect the total criminality for the multiple offences. And so what we do is we accumulate to some extent, the two years plus two plus six months plus two to find where the appropriate just and appropriate sentence lies.

Peter McClellan For all of the four offences.

Theo Tsavdaridis For all of the four offences.

Peter McClellan: As a total sentence.

Theo Tsavdaridis Provided that you’re not engaging in just a global assessment, you need to look at each offence, make a determination where it falls on the scale of objective seriousness and then coming to the principles of totality, determine what the total offence should be which reflects properly, the criminality of the offending conduct.

Peter McClellan Of all of the conduct.

Theo Tsavdaridis Yes.

Peter McClellan So totality. This is something that I’m sure you appreciate troubles many people in the community because there may be different victims in each case.

Theo Tsavdaridis And that’s one of the reasons why you end up with perverse outcomes at times. You might have a defendant who is being sentenced for two break and enters at two entirely different homes with two entirely different victims. Ransacked one home, ransacked the other home. Was on conditional liberty for the first, not on conditional liberty for the second. More aggravating factors featuring in the first, not as many in the second, and so it comes back to the instinctive synthesis of determining, together with the principles of totality, what the appropriate sentence should be. Because the court is required to impose a series of sentences. Each properly calculated in relation to the singular offence for which, it is imposed and then review the aggregate sentence to ensure that it’s just and appropriate.

Peter McClellan Well, let’s assume that when you’ve done all this, you’ve come to five years. As what the judges call head sentence. What do you do about parole in those circumstances?

Theo Tsavdaridis Section 44 of the Crimes (Sentencing Procedure) Act 1999 kicks in again.

Peter McClellan As against the five years.

Theo Tsavdaridis As against the five years.

Peter McClellan So you don’t do it for each individual...

Theo Tsavdaridis But that requires the imposition of one pronouncement, one term of imprisonment being the aggregate sentence, but it requires me to note the indicative sentences I would have imposed after allowing a discount for a plea of guilty.

 Peter McClellan And in that way the individual victim is able to see how seriously you’ve treated that particular offence and what on its own, would have been a penalty for that offence. Is that the way it goes?

Theo Tsavdaridis Yes.

Peter McClellan Well, thank you for this fascinating discussion today.

Theo Tsavdaridis It’s a pleasure.

Peter McClellan: We trust and hope I’m sure, that those who’ve been listening to us will have gleaned a little bit more about the system than they might otherwise have known, and I’m sure are very grateful for the time you’ve made available to us.

Theo Tsavdaridis: It’s a pleasure. Thank you Peter

Peter McClellan: You have been listening to Theo Tsavdaridis a Deputy Chief Magistrate of the Local Court. This podcast, Sentencing Explained is bought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today. We’re joined today by Judge Jane Mottley, the Senior Judge of the New South Wales Drug Court. Judge Mottley will talk about the role of the Court, how offenders come before the Court and the special procedures relevant to the sentencing of drug-dependent offenders.

Welcome, Judge.

Judge Mottley Thank you, pleasure to be here.

Peter McClellan Judge just first of all, can you help us to understand what is involved with the Drug Court? How many judges are there in that Court?

Judge Mottley We have one judge full-time and we have a total of six judges, five with what would be regarded as commissions as judges but not working on a full-time basis. So we have Courts sitting permanently at Parramatta, which is where I sit. We have a Court sitting in Sydney at the Downing Centre, with one judge sitting one day a week. We have a Court sitting at Toronto three days a fortnight occupied by one judge, and we have three other judges who are available at short notice to relieve the various Courts as judges take leave.

Peter McClellan I think the Court was set up in New South Wales in 1998.

Judge Mottley That’s correct.

Peter McClellan But before NSW, drug courts had been set up in other parts of the world.

Judge Mottley That’s correct.

Peter McClellan Where did they start?

Judge Mottley USA. There are many, many states in the United States that have drug courts. They’ve spread throughout the world. In New South Wales it commenced as a trial and subsequently the legislation, because of the success of the trial, was passed and NSW is the only state that has its own legislation, with a court with the structure that the Drug Court currently enjoys.

Peter McClellan Can you tell us – how does it work? How does someone end up before the Drug Court?

Judge Mottley Well, first of all you have to have committed a serious crime. You need to be appearing before a Local or a District Court.

Peter McClellan When you say serious crime, you mean a serious drug related crime or just any serious crime.

Judge Mottley Any serious crime providing it doesn’t involve violent conduct, it doesn’t involve drug supply that is of such seriousness that can’t be disposed of in the Local Court within that jurisdiction or any offence of a sexual nature or a sexual assault offence. So that offending is precluded.

Peter McClellan But I assume that every offender that can come into the program has to be in some way involved with drugs.

Judge Mottley They have to be drug dependent.

Peter McClellan Drug dependent, but their crime maybe other than a drug related crime.

Judge Mottley: That’s true.

Peter McClellan And so if you find a low-level dealer in drugs who’s also addicted, would they come into the Drug Court program?

Judge Mottley Most certainly.

Peter McClellan And someone who commits a robbery but is also a drug dependent person, do they come into the program?

Judge Mottley If the offence involves violence, that person would be excluded on the eligibility criteria, but if you were to commit a break and enter, then you would be eligible for a program. If you commit a driving offence, or serious driving offences, you could be eligible for a program.

Peter McClellan When you say serious driving offences, what type of offence would be classified as serious?

Judge Mottley Police pursuit, driving in a manner dangerous to the public, driving whilst disqualified contrary to directions of courts and regulatory authorities, that type of offending would be captured as an eligible offence.

Peter McClellan So someone commits the offence and presumably is arrested by the police. How do they end up getting into the Drug Court?

Judge Mottley Appearing before the Court, hopefully their lawyer will obtain instructions ...

Peter McClellan You mean appearing before the Local Court when they’re first arrested and charged?

Judge Mottley That’s correct, ascertain whether the person is willing to enter a plea of guilty. Ascertain whether the person is drug dependent looking at their offences, discussing with their client at that point in time, the prospect of going to or being referred to the Drug Court. Then communicating that information to the magistrate as soon as possible and the magistrate, under the legislation, has a duty then to refer the person to the Drug Court for assessment as to their overall eligibility for a program.

Peter McClellan So, an offence is committed by someone, say late at night. They are arrested by the police and presumably would be taken to the station and maybe charged there and then. Could they be released on bail but still end up in the Drug Court program?

Judge Mottley Yes they could, but if they’re accepted into a Drug Court, if the Drug Court accepts them as an eligible person, then the person will be returned to custody in preparation of their release to their program.

Peter McClellan Well, let’s follow the steps. So this person we’ve imagined is arrested, charged, but they are released on bail that night by the police.

Judge Mottley Yes.

Peter McClellan They would come to court, probably the next day or the day after...

Judge Mottley Weeks later, whenever.

Peter McClellan Whenever. And that would be in the Local Court.

Judge Mottley That’s correct.

Peter McClellan And it would be then incumbent upon their legal advisors to tell the Local Court of their circumstances which might qualify them for the drug program.

Judge Mottley Yes, even though the legislation is cast that the duty rests with the court to determine those issues, having regard to the fact that the Local Court is a very busy jurisdiction, it would require a level of interrogation by the judicial officer as to their willingness, what their plea is going to be, whether they are dependent upon drugs. This is all information that can be harvested from their lawyer, who can then provide it to the magistrate. The magistrate has no discretion. It’s a duty, and so ultimately then it’s for the Drug Court to determine the ultimate question of eligibility after other considerations are brought.

Peter McClellan So if the offender’s lawyer is able to provide the magistrate with the information required for someone to be referred, then they will be referred.

Judge Mottley Yes.

Peter McClellan Do the police have any role at that stage in whether or not a person should be referred?

Judge Mottley No, no role at all.

Peter McClellan So our offender then is able to show that they are eligible for the Drug Court program and they are referred by the magistrate. What then happens?

Judge Mottley Eligibility criteria involves also an assessment of whether the person lives within the catchment area of a Drug Court, so whether you’re within the catchment area of Toronto, Sydney or Parramatta, so there’s an initial screening to ensure that you are actually living …

Peter McClellan So if you live in Wollongong, you could never be taken into the program. If you live in Dubbo, you could never be taken.

Judge Mottley Not yet.

Peter McClellan Into the program.

Judge Mottley We’re hoping…

Peter McClellan It’s under consideration?

Judge Mottley We are expanding to Dubbo which is very exciting. And the government’s made a commitment to that. And that’s a work in progress currently. We’re very close to commencing our sittings.

Peter McClellan So again, our imaginary offender is identified as living within the relevant catchment. What happens then?

Judge Mottley So the DPP, Director of Public Prosecutions Office will screen the person’s offences to ensure they are eligible offences. The DPP will also screen their antecedents because one of the assessment criteria is whether the person having regard to their antecedents is an appropriate person for a Drug Court program. Then the person’s name will be put forward in a ballot and then, depending on the number of places there are available at each of the locations to accept a person onto a program, then there could be a randomised ballot that’s run if we have too many applicants for program than we have positions available. And ultimately then, if we have six positions and 10 applicants, we will be given the names of six potential participants. Those names will go forward and then there’ll be a further screening of the participant by the Court.

Peter McClellan Well, someone meets the initial criteria they’re within the relevant catchment and their offences, past and present, don’t disqualify them. But if there’s too many people wanting to come into the program they miss out because their number doesn’t come out in the ballot.

Judge Mottley That’s correct, which is unfortunate.

Peter McClellan And if that happens to that person, what happens to them after that?

Judge Mottley If you’re unsuccessful with your ballot, then the matter is remitted back to the referring court to be dealt with in the ordinary course.

Peter McClellan So they may then be sentenced for their crime. They may be sent to prison. They may receive some other penalty.

Judge Mottley That’s correct.

Peter McClellan And the prison system may have capacity to deal with their drug problems, but not in a structured program like the court offers.

Judge Mottley Not as intensive as that offered by the Drug Court. Another eligibility criteria of course, is whether the person is likely to receive full-time imprisonment.

Peter McClellan You mean whether the crime is so severe that on any view they should receive full-time custody.

Judge Mottley That’s right. The crime and the circumstances around the offender as such that it justifies full-time imprisonment.

Peter McClellan When is that decision made?

Judge Mottley That’s a decision that’s made at referral.

Peter McClellan So those who come into the Drug Court program have to be serious offenders.

Judge Mottley That’s correct.

Peter McClellan That is, people who otherwise would go to jail.

Judge Mottley Highly likely to receive full-time imprisonment.

Peter McClellan But if they weren’t so likely to receive it, then they don’t go into the drug program they’re dealt with in the Local Court

Judge Mottley That’s correct.

Peter McClellan By that same magistrate, I assume.

Judge Mottley Or whomever. Yes, and similarly with the District Court, so we accept referrals from the District Court for people who are being dealt with on indictment, highly likely to receive a sentence of imprisonment, non-violent offending, not serious drug supply, no sex offences, over the age of 18, living within the catchment area, don’t appear to have any mental health issues, referred to the Drug Court. As well as appeals from Local Court decisions. So it’s a big pool of potential participants that we’re drawing from.

Peter McClellan So our hypothetical offender, who’s out on bail, but nevertheless is likely to receive a sentence of full-time custody, has made it through the ballot and then appears, I assume, in the Drug Court shortly thereafter.

Judge Mottley Yes, so the ballot occurs at Parramatta and Sydney every Thursday and at Toronto every Monday. So if the lawyer identifies the person as being someone who’s willing, looks like they appear to be an eligible person, their name goes forward at the ballot on the day at Parramatta, say on a Thursday. We will determine who has succeeded through the ballot and then about two weeks later, the case is listed for what’s called initial referral, and it’s at that point the Court will have a closer examination as to matters, such as whether they are appropriate, having regard to their antecedents, whether there are any mental health issues that would impact upon the person’s capacity to participate in a program, whether there’s any circumstances around domestic violence that might preclude a person from participating in a program. And that’s largely informed by the attitude of the Director of Public Prosecutions. So the lawyer for the Office of the Director of Public Prosecutions will say we see no issues with this person having the opportunity of a program. And largely the argument is around appropriateness. The DPP will say this person has a criminal history which we say is very concerning, if it’s a history of violence or there’s a history of drug supply which we form the view, is so significant as to render the person not appropriate for a program.

Peter McClellan And the judge at that point may or may not agree with the DPP.

Judge Mottley That’s correct.

Peter McClellan And if they do, or if he or she does then presumably that offender goes back to be sentenced in the Local Court or District Court, wherever they came from.

Judge Mottley That’s correct.

Peter McClellan But if the person doesn’t receive an adverse comment from the DPP, then the judge in the Drug Court will make a decision to allow that person to come into the program.

Judge Mottley That’s correct, and at that point in time, then the proceedings are listed for what’s called an initial sentence. And if the person is appearing on bail at that point, once the decision has been formally made that the person is an eligible person, then the person will be taken into custody. If they’re already in custody, they remain in custody and the case is listed roughly four, up to six weeks in advance depending on what the perceived needs of the participant might be and during that period of time, the person will be (unfortunately due to COVID times) quarantined for 14 days, then transferred into the Drug Court unit at Silverwater jail. There’s a separate wing for both men and women at the MRRC, and during that two week period they’ll commenced their detoxification. They’ll be seen by a doctor and a psychiatrist. And it’s during that period of time that their treatment and case management plan is developed.

Peter McClellan I’m sorry when you say treatment and case management, what’s involved in the case management plan?

Judge Mottley Alright, so the case management plan relates to the occasions the participant will be required to appear before a court, the days they’re required to appear, sets out their obligations whilst they’re on the Drug Court program in terms of meeting their appointments, which is all part of the suspension of their sentence.

Peter McClellan And who designs that program?

Judge Mottley So the treatment and case management plan’s prepared by Health. The Court accepts the treatment and case management plan, endorses it, not through any particular order as such, it’s just accepted that this is the treatment the person is going to receive, that’s accepted without question. It’s a very different circumstance in the courtroom in a therapeutic court than in any other setting. It’s a non-adversarial environment in terms of accepting what is in the best interest and appropriate for the participants. So Health will provide this information. The Court has certain instructions and directions it gives to each participant when they commence on their program. Things like not falsifying their urine tests.

Peter McClellan Can I come back a step?

Judge Mottley Sure

Peter McClellan Our hypothetical offender has now been retained at Silverwater. He or she has engaged with the Health people.

Judge Mottley Yes.

Peter McClellan And they’ve defined a program for that person going forward.

Judge Mottley That’s correct.

Peter McClellan I take it that person then comes back before the Court before the judge.

Judge Mottley That’s correct.

Peter McClellan And there’s a representative of Health there, at the time.

Judge Mottley Yes.

Peter McClellan And is there a prosecutor there in the Court at that stage?

Judge Mottley There’ll be a solicitor from the Office of Director of Public Prosecutions. There will be a lawyer on behalf of the participant, there will be a representative from Corrective Services because Corrective Services will be supervising the person in the community. There will also be a police prosecutor present.

Peter McClellan Does the judge have any role to play in deciding at that stage whether the person should go into the program or has that decision already been made?

Judge Mottley That decision’s already been made. So that happens at initial referral, and then, as I say, they’re either taken into custody or they remain in custody, go to the Drug Court unit, Health prepare what they say is the appropriate treatment. You’ll go onto Buvidal if you’re an opiate addict. If it’s ice, you won’t receive any pharmacotherapy, but those decisions are made by Health at that point in time, and then following consultation with community corrections about the appropriateness of somebody’s address within the community. If the person is going to go into the community, there will be decisions made about which Local Area Health District will be responsible for delivering the counselling, where you’ll receive your Buvidal or whatever treatment.

Peter McClellan Can we go back a step? So the help program is before the Court. The judge then you say will accept it without question.

Judge Mottley That’s correct.

Peter McClellan But decisions have to be made I assume, as to whether the person will go back into custody or be released into the community while undergoing the program. How does that all work?

Judge Mottley Okay so from like I was explaining from initial referral to initial sentence, the person is undertaking this assessment in the Drug Court unit at Silverwater jail. When the matter’s listed for initial sentence, that’s the day the person will be released from custody and they’ll be released either back into the community to an address that’s being offered by the participant and community corrections have screened that address to determine, yes that is an appropriate address. Or during the preparation of the treatment and case management plan, it may be determined that actually this person needs to go into a residential rehab facility at places such as Adele at Coffs Harbour, the Glen on the Central Coast, WHOS at Rozelle, depending upon the treatment needs of the participant will depend on which facility they’ll be directed to attend. If there are issues with a person’s accommodation within the community, then Health will explore placement at a facility such as Wayback, which is a supported residential rehab centre, with various places.

Peter McClellan So our hypothetical offender could be required to reside at one of these facilities.

Judge Mottley That’s correct.

Peter McClellan But are they otherwise free to move in the community?

Judge Mottley Yes.

Peter McClellan And there would be some, I assume from what you said, who would not be required to live in a facility but could live in ordinary residential accommodation.

Judge Mottley Yes.

Peter McClellan At this point in time, has there been any discussion about the prospective sentence of our offender, who of course comes into the program only because he or she otherwise would have received a full-time custodial sentence.

Judge Mottley That’s correct.

Peter McClellan Has there been a discussion about the prospect of a custodial sentence?

Judge Mottley It’s beyond a discussion. A sentence is actually imposed.

Peter McClellan By the Drug Court judge.

Judge Mottley That’s correct.

Peter McClellan And when is that imposed?

Judge Mottley That occurs on initial sentence, so after the person has been found to be eligible, been at the Drug Court unit, their case is listed for initial sentence and that’s about four to six weeks after that original decision’s made that yes, you are an eligible person. The person then appears before the Drug Court, confirms their pleas of guilty, the Crown make their submissions as to appropriate sentence. The defence will make submissions but unlike other sentencing proceedings, there is very little evidence given to the Court at that point in time. No evidence is ever given by the participant. Very rarely are there any reports tendered. There is very rarely a sentence assessment report. If you have a sentence assessment report, it’s because it’s being prepared for purposes in another jurisdiction. So the judge really is essentially dealing with the objective seriousness of the offending, very little subjective material. The initial sentence that’s imposed upon the participant is what I refer to as the high watermark because the initial sentence cannot be increased. So the participant becomes aware of their initial sentence.

Peter McClellan Is the judge confined by the range of sentences available in the Local Court?

Judge Mottley Depending on whether the person being referred on indictment. So yes, if the matter came from the Local Court constrained to the Local Court jurisdiction, if the matter came from the District Court dealing with a matter on indictment at large, and if the matter’s come from the District Court through an appeal from a decision of the Local Court.

Peter McClellan Now you say there’s not very much subjective material placed before the Court, but nevertheless, the sentence, presumably that’s imposed at that point, conforms to the requirements of the Crimes (Sentencing Procedure) Act.

Judge Mottley Yes.

Peter McClellan I see. And you say it’s the high watermark. What does that mean?

Judge Mottley That means that under section 12 of the Drug Court Act that when a final sentence is imposed, the Court must have regard to program participation, all time spent in custody referable to the matters being dealt with by the Court and following a decision of the Court of Criminal Appeal in the matter of Beal, the Court must also consider any additional information that’s provided to the Court that wasn’t provided at initial sentence.

Peter McClellan I assume that that means that the offender would know their sentence would never be greater than the sentence that the judge identifies at that early stage. Is that correct?

Judge Mottley That’s correct, subject to the caveat of not committing any offences whilst on program.

Peter McClellan Right, which would then inform that sentence? Or perhaps carry a separate charge.

Judge Mottley Yes, that’s correct. So what you would find is that you would have to redetermine the initial sentence and deal with that separately and then for any on program offending that’s being dealt with at final sentence, deal with that separately so as to create two separate sentences that could be served partially cumulatively.

Peter McClellan Now let’s assume again that our hypothetical offender is a typical person coming into the Drug Court program. Apart from where they are required to live, what sorts of conditions would the Court impose upon their conduct?

Judge Mottley It is a very intensive program. It runs for a minimum period of 12 months and the first three months as a minimum the participant is required to attend the Registry of the Court, where they’re appearing regularly, no less than three times a week to provide a urine sample for testing. For the first four weeks of their program, they are required to appear before the judge twice a week. Assuming the Court’s sitting twice a week, so at Parramatta it’s twice a week, Sydney only sits one day a week.

Peter McClellan And what happens when they appear before the Court?

Judge Mottley So what happens when they appear before the Court is the judge will have a conversation with the participant. The first question is, has there been any drug use. That’s all about maintaining a level of accountability for the participant and then thereafter, depending on the answer to that question, will depend on where the conversation goes, but assuming there’s been no drug use, the participant is congratulated for that. Then there’s a conversation about how things are going. Just a general chit chat about how they’re enjoying the program, what they’ve been up to. There’s quite a lot of conversation that occurs around family pets, teeth, health appointments. It’s all about engaging with the participant to develop some level of trust and show that there’s some level of care.

Peter McClellan Is this happening in a courtroom?

Judge Mottley It’s happening in a courtroom.

Peter McClellan Right. And how long would you spend with an individual offender?

Judge Mottley It depends on the issues that are being confronted at the time. If things are going along well with the with the participant and there’s no drug use, it would be a very short conversation. Matter of minutes. If there has been no drug use, if there’s been compliance with the program, the conversation ends with very well done, we will see you (nominate the date), whether it’s later in that week, depending on the phase of the program will depend on whether it’s one week later, two weeks later or four weeks later, and then the Court bursts into a round of applause to congratulate the participant for maintaining sobriety and adhering to their program requirements.

Peter McClellan Well, let’s assume again our hypothetical offender is required to attend to give a urine sample three times a week. And then what? Two weeks later or so, they’ll come back before the Drug Court judge for their first, as it were ongoing interview, would that be right?

Judge Mottley It won’t be two weeks later, it’ll be if you’re starting on your program and your drug tests are Monday, Tuesday, Friday, and you’re released on Thursday, you’ll be coming to see the judge on Monday and Thursday. So if you’ve failed your drug test on Friday, you’ll be having a conversation with the judge on Monday.

Peter McClellan Right, so if you fail your drug test, that’s almost immediately you’re brought before the Court.

Judge Mottley Yes.

Peter McClellan If you pass the drug test, I assume that drug test is effective to pick up whether you’ve been taking drugs on any of the days.

Judge Mottley Yes. Oh, not on any of the days, just the samples will test to see whether you have, you know, the range of drugs in your urine on that day of collection, but there’s a level of science around the …

Peter McClellan Analysis of that.

Judge Mottley That’s correct, and how your body is breaking particular substances down. So we get an analysis of, say if you’re using heroin, it’ll come up morphine. It’ll come up as a morphine trace, so you can follow the decomposition of the drug in the system to determine whether in fact there’s been an unadmitted use.

Peter McClellan So do people slip through the drug program, that assessment program, or does it catch everyone who may still be using?

Judge Mottley Unfortunately, it can’t catch everyone, and I say that not because of the schedule of testing, but because the world of illicit drugs is always changing and so we have a range of synthetic drugs. We can’t test everybody for synthetic drug use because it’s just too expensive. But that being said, it’s a difficult market as well, so it’s a cost benefit analysis. But in terms of the schedule of testing, we’re reasonably confident that we have it programmed in such a way that it would be very difficult for someone to escape.

Peter McClellan Yes right. So again our hypothetical offender passes the first series of drug tests, comes before the Court and has the chat that we talked about. What other conditions at that stage are likely to have been imposed on their behaviour? They’ve got to reside somewhere, they’ve got to do the drug testing and they’ve got to come back to the judge. What other obligations do they have to the program at that point in time?

Judge Mottley Alright, so there’s mandatory counselling. So they’ll be speaking with a psychologist once a week, they’ll be speaking with a parole officer once a week. The parole officer can come to their home, or there’ll be telephone contact. As the person moves through the program, the parole officer may in fact visit them at their workplace. The parole officer will also conduct what we call third party interviews. So if the person’s got a partner, well then the parole officer will have a conversation with the partner about progress on program. If there are parents, the participant’s parents will be interviewed as well. That’s all part of what a participant signs up for at the very commencement of their program, accepting that there will be that level of intensive supervision and some might say intrusion, but balanced against that of course is the fact that this person would otherwise be in prison serving a full-time sentence, but instead are released into the community.

Peter McClellan And are they allowed to get employment. Can they get a job?

Judge Mottley For the first three months of the program, which we call phase one, that’s really the initiation and stabilisation phase, so we really would prefer participants to be focusing on meeting all their Drug Court obligations, so coming for their drug tests three times a week, coming to their court commitments for the first month twice a week, attending to their counselling, visiting or having interactions with their parole officer. That’s a very busy schedule for a lot of people. Going to have their treatment reviewed by the prescriber, for example, there are many who are on pharmacotherapies so it’s important that they’re in touch with their doctors about their appropriate dosage. Connecting people with a doctor is really important on an ongoing basis. Our participants are very chaotic people. Engaging them again with Centrelink because they’ve been in custody for instance.

Peter McClellan But they need some income now, don’t they?

Judge Mottley That’s correct, simple things like get yourself a phone, you need to have a phone, you need to have an Opal card. Just the very fundamental things that functioning people would think about, we have to remind our participants because it’s something that’s not always within their realm of contemplation, to have an Opal card, and not to travel on a train without a ticket.

Peter McClellan How do they get income to support them during this period. Buying a phone is not cheap. Public transport requires money. Food requires money. How do they survive?

Judge Mottley Yes, that’s correct. So we provide exemption letters for them to take to Centrelink. So once it’s established the person’s on a program, well then they’re given an exemption from Centrelink from the requirement to seek employment. They’re quite resourceful, so getting a phone, you’d be surprised at how cheaply you can obtain a phone, $50?

Peter McClellan Is that right?

Judge Mottley Yes, doesn’t have to be a smart one, just has to be one that takes, makes, and receives phone calls.

Peter McClellan OK, so they do manage to survive on the income that’s available to them.

Judge Mottley Yes.

Peter McClellan And that’s for a three month period. Now if in that period, so we’ve gone through the first two weeks, everything was fine, but then in the third or fourth week, the person fails the urine test and so they’ve obviously been taking some drug. What happens?

Judge Mottley So that will be discussed with the participant.

Peter McClellan So they’re brought back before the courts.

Judge Mottley Bearing in mind they’re reporting to the Court twice a week or at least once a week for the first three months, so there’s regular accountability before the Court. So we’ll know about what failures there are. The participant, given that it’s an honesty-based program, is informed that there is an obligation to admit your use. So if they have a use, they should be admitting that to their parole officer or their counsellor before they actually arrive at Court. So once the Court’s aware of a use, then the fact of the use is then discussed. Insofar as can you tell me why you used, have you had an opportunity to speak with your counsellor yet. And the Court then imposes a sanction on the participant, depending on where you are in the program, whether you’re in phase one, two or three, will depend on the level of sanction that’s imposed upon you. In phase one, there are less sanctions imposed for use because it’s about trying to stabilise a person, and not surprisingly there is use. So one sanction equates to the equivalent of 1 day in prison. Once you get to an accumulation of 14 sanctions, and that could come about not just because of use, it could be because you failed to attend for a drug test, it could be because you’ve got a pattern of failing to attend for your counselling. If you come to notice for an offence, then sanctions can be imposed. Once you reach 14, then you return to custody to serve those sanctions.

Peter McClellan So that’s separate from your sentence that’s sitting there, these are separate penalties if you like for breaching parts of the program?

Judge Mottley That’s correct.

Peter McClellan And so you’ve accumulated 14 days and you do 14 days then in custody?

Judge Mottley That’s correct.

Peter McClellan And then you go back to the start of the program? What happens to you after that?

Judge Mottley No, you don’t go back to the start, but the Court will be very cautious about progressing you to the next phase prematurely. So even though the program runs for a minimum of 12 months and the first phase is for a minimum of three months, you don’t get the privilege of moving to the next phase of your program where the supervision of the Court relaxes somewhat, until the Court’s satisfied that you qualify to progress to the next phase.

Peter McClellan Does that mean that you have definitely stopped taking drugs?

Judge Mottley No. The program is designed to reduce dependency upon drugs, to reduce the need to resort to crime and to reintegrate the participant back into the community, they’re the fundamentals of the program.

Peter McClellan So that requires a judgment call for the judge of some degree of difficulty, I assume, predicting how a person is going to go moving forward.

Judge Mottley Well, again, it’s a team decision we have sitting around a table. Before we see a participant, before Court commences, we have what’s called a team meeting and in attendance at the team meeting, we have the solicitor from the Office of Director of Public Prosecutions, we have the police prosecutor, we have the coordinator for the parole officers, we have a representative from Health, we have Legal Aid lawyers and the judge and the Registrar. Think of it like a family is sitting around a meal table discussing a family member who is experiencing some difficulties. Each of the team members will make a contribution about the progress and the circumstances relating to the participant from their lens. The police will inform the Court at a team meeting, for example, whether the person has come to notice for any offences or just come to the notice of the police without committing any offences. Community corrections will provide a report to the Court as to what was discussed during the course of the interview with the participant. Health will have a report from the psychologist who is working with the participant about drug use and the concerns that the participant was raising, any issues that participants were experiencing. Legal Aid advocate on behalf of their clients in that space, if there is some discussion around the number of sanctions to be imposed, whether there are any concerns about the participant’s prospect to progress on the program and whether there are any conversations occurring in the space where the Court might be contemplating, without formally deciding, whether a person can remain on the program.

Peter McClellan So we’ve got through the first three months. Our offender’s had the odd breach, taken some drugs. But the judge decides and, with the assistance of all of those as you say, involved, that the person can progress to the next stage of the program. What does that involve?

Judge Mottley That involves the judge congratulating the participant. They’ve satisfied the requirements of phase one, and now they can move to phase two. Phase two runs for a minimum of four months. Drug testing reduces from three times a week to twice a week. Court attendance is reduced from twice a week, then once a week to only once every fortnight on phase two and phase two participants are encouraged to work or volunteer, depending upon your capacity. We have many participants who have very complex backgrounds, lots of health issues for many, some of them are mums who have got babies. It’s very difficult to compel a person in those circumstances to get 21 hours work or positive activity for the equivalent of 21 hours, so we have to, in many respects, cut our cloth to suit the pattern of the person we’re dealing with, but as a general rule, participants are encouraged to engage in 21 hours per week of positive activity.

Peter McClellan Now let’s assume our offender, however, hasn’t done well in the first three months. Does there come a point where the judge will say the failures are so significant that this person can’t continue in the program?

Judge Mottley That could happen. That decision is a very difficult decision, and there are a lot of incentives that are put in place for a participant before coming to that conclusion. It could be that you use different strategies like, if you use again, the next use will result in you going into custody and that is a huge motivator for a lot of participants.

Peter McClellan You mean by that full-time custody to serve their sentence?

Judge Mottley Well, no, that you’ll be placed back into custody to serve a period of sanctions. So even though 14 days equals 14 sanctions, the judge is empowered to put clauses on a participant and one of the clauses could be if there is another use, the next use will result in you being placed into custody to serve sanctions, and it will be for 14 days depending on how many sanctions are already in place.

Peter McClellan But once you get to 14, it’s inevitable the judge will say you’ve got to spend some time in custody.

Judge Mottley Never say never, but usually.

Peter McClellan Yeah, sure.

Judge Mottley So “next use to serve” is something that we utilise to incentivise a participant to maintain abstinence, and it’s a very powerful tool. We will also set what we call sunset clauses on a participant, you have to achieve these particular goals by this particular date, otherwise we will list your matter for a hearing to determine whether you have the prospects to progress on program and the participant knows that that means that the chances are that their program may be terminated.

Peter McClellan That could be, well, it sounds like an adversarial setting if you get to that point.

Judge Mottley That’s correct.

Peter McClellan So the judge then exercises the capacity to either terminate or give the person another chance.

Judge Mottley That’s correct.

Peter McClellan And by the way, when you’re doing all this work as the judge, are you robed at all?

Judge Mottley Drug Court judges wear the civil robes of the District Court.

Peter McClellan And you do that with the round table discussion as well?

Judge Mottley I don’t robe at the round table discussion.

Peter McClellan But you do if there’s an adversarial point?

Judge Mottley So the courtroom looks like this. In the morning we have a team meeting. We all sit around the bar table, no robes. Then we break and the participants are directed to appear at Court at 11:00 o’clock, so I robe. Depending upon whether I’m dealing with the Indigenous list and I’ll come back to that, I will sit either on the bench or if I’m dealing with the Indigenous list, I’ll sit at the bar table.

Peter McClellan So the second phase of the program for our hypothetical offender runs for four months?

Judge Mottley Yes.

Peter McClellan And I take it during that period there could be breaches that ultimately warrant sanction and maybe some time in custody. Let’s assume our offender gets through the four months. What happens after that?

Judge Mottley Then the participant’s congratulated on achieving all the objectives of phase two. I should say when progressing from one phase to another there’s a certificate, there’s a huge round of applause, and then the participant goes to phase three conditions, which means drug testing still remains twice a week, but court appearance is reduced to once every four weeks and the participant will be on program for a minimum of five months.

Peter McClellan So we’ve now got our three months, four months, and then another five.

Judge Mottley That’s correct.

Peter McClellan So we’ve gone 12.

Judge Mottley That’s right.

Peter McClellan And again, I take it if there are breaches, then it’s possible to sanction, or if the breaches become so significant, it’s possible for the judge to say it’s about time we consider whether you should continue in the program.

Judge Mottley That’s correct, that’s correct.

Peter McClellan So we get up to 12 months and what happens then?

Judge Mottley Well very few of our participants complete the program within 12 months. I won’t say none of them, but very few.

Peter McClellan In completion, you mean they’re drug free and they’re living now a stable life.

Judge Mottley Yes, they’ve met all the objectives. So we have a series of policies to determine whether a participant has actually satisfied all the requirements to graduate from a program, so no offending for a period of six month, no detected drug use for a period of three months, if you can meet those objectives, and you’re engaged in a positive activity, hopefully it’s full-time employment, but depending on capacity. So if you meet the criteria then a graduation will be scheduled and graduation is effectively final sentence. A person who completes their Drug Court program will have their sentence of imprisonment set aside and will receive another penalty other than full-time imprisonment.

Peter McClellan So this could happen at the end of the 12 month period if the person has achieved, but what if at that point they’re not suitable for that final hearing, is the program extended from period beyond 12 months?

Judge Mottley Yes

Peter McClellan How much further could it be extended?

Judge Mottley It depends.

Peter McClellan I see.

Judge Mottley And each phase is for a minimum period, so it just depends on the progress of the participant through each phase as to when they will progress.

Peter McClellan So you get to the end of the 12 months, but the judge is not satisfied the person has fully met the needs of the program or the requirements of the program. Does the judge then say, I will extend you for another three months or how does it work?

Judge Mottley No, there’s no extension per say, the program simply continues until the participant meets the graduation criteria to the satisfaction, I’ve got to say, of the whole team.

Peter McClellan Yeah, I understand, but the judge ultimately has the call I assume?

Judge Mottley That’s correct.

Peter McClellan Advised by those people who have a close knowledge of the way the person’s been performing.

Judge Mottley That’s correct.

Peter McClellan And so they come to that final hearing. They’ve made it through the program, they come to that final hearing, you say the sentence originally imposed is set aside. What penalty, if any, or sanctions are imposed on the offender at that point?

Judge Mottley Alright, leading up to a graduation sentence, Health will prepare a continuing care plan, as will community corrections. So that’s the only evidence that’s given in the final sentencing proceedings. The Crown will make submissions to the Court urging a non-custodial outcome. The defence speak very sparingly at that sentencing hearing on the basis of the Crown’s concessions.

Peter McClellan You don’t want to change direction.

Judge Mottley That’s correct, and the participant will then, depending upon the length of the sentence that was imposed in the first instance, how many counts there are, what sort of time might have been spent in custody, both pre-sentence custody and during the course of the program, will inform outcomes for various offences that were brought before the Court. But for the significant offences, let’s call them those, the participant would receive a Community Correction Order for a very short period of time, having regard to the fact that they’ve already been the subject of very, very intensive supervision for no less than 12 months.

Peter McClellan So at the end of the day, that person emerges from the program with a conviction for the offence that they committed, with an ongoing sanction, which you say will be imposed, recognising the time they’ve already spent in close supervision and that’s the end of the engagement with the Court?

Judge Mottley That’s the end.

Peter McClellan So that how it works?

Judge Mottley Yes.

Peter McClellan Can you tell me what’s the success or failure rate of those who come into the program, to complete the program? Do many fail to get to the end?

Judge Mottley Look, BOCSAR have done an analysis of success. It’s very hard to quantify what looks like success. So you can talk about time to next offence.

Peter McClellan No, my first interest and my first question was how many actually failed while in the program?

Judge Mottley It’s a difficult statistic, but I’d say more don’t make it to the end, than do make it to the end.

Peter McClellan Right. And those who may get to the end, I gather, there’s a reasonably high success rate going forward for those people, once they’ve been through your Drug Court program and they have completed every obligation that’s been imposed upon them in a satisfactory way. Then a great many of those people return into the community and remain drug free and crime free.

Judge Mottley Absolutely. But we also have another level of achievement where someone might simply become exhausted by their program. They don’t reach graduation status because they can’t engage in full-time employment or they can’t just meet that positive activity requirement or it’s just chaos for them at that moment in time. They’ve reduced their dependency upon drugs, they’ve reduced their need to resort to crime, but in terms of reintegration into the community, they haven’t quite established that to the satisfaction of the team and the Court. And so we have another level which is referred to as substantial achievement and substantial achievement will result in the person not being returned to custody, but they won’t be given the gold star reward of a Community Correction Order, which is a non-custodial outcome, so they’ll be before the court for sentence. They’ll receive their final sentence, but their final sentence is likely to be a wholly backdated sentence of imprisonment taking into account program participation, pre-sentence custody, all time spent in custody referable to the program. Now that person would not be regarded as a success because they’ve not graduated, but are they a successful participant on a program? I would say yes.

Peter McClellan And of course the community interest substantially is ensuring that those who are in the program do succeed, but furthermore succeed in life after they’ve left the program.

Judge Mottley Absolutely. And success is very difficult to measure because if you can give somebody an opportunity to at least live some weeks or months not committing a crime, not using drugs on a daily basis, giving them some strategies to deal with refusing drugs or giving them some life skills, how do you measure that as a success? The fact is that they are reducing their burden on the criminal justice system, they’re reducing their burden on the community, they’re reducing the number of victims that are being created, they’re reducing the burden on the health system, I don’t know how you quantify that. That’s something I hope will happen in the future.

Peter McClellan Well, you told us, I think, earlier on that it’s likely that a new Drug Court will be established in Dubbo fairly soon.

Judge Mottley It is being established.

Peter McClellan It is being established.

Judge Mottley Yes.

Peter McClellan That’s rather an indication that those who manage the system think that it’s working satisfactorily in the community’s interests, and I assume you would be saying to those who might ask, there’s a need for more Drug Courts even beyond Dubbo, if the financial resources are available to do it.

Judge Mottley Yes.

Peter McClellan Tell me this. It must be fairly difficult work for the judge to be involved day after day with people who are affected by drugs and whose lives have been severely compromised by various events. Do you anticipate spending a long time as a judge of the Drug Court?

Judge Mottley I really find it the most rewarding work. I can’t put a timeline on it because I am so energised by it. I’ve spent a long time in the law leading up to this. As a judicial officer, you have to have regard to the purposes of sentencing. So much focus is spent on deterrence, punishment, recognising harm done to victims, protecting the community, and obviously one of the objectives is rehabilitation, whereas in our Court the focus is on rehabilitation. So the fact that you can see physically as well as mentally, you can assess the transformation of a person who’s just given an opportunity to change their life is so rewarding. When a participant commences on their program and they’re released from custody, we take a photograph of them. And truly, you cannot begin to appreciate the physical changes that occur when somebody goes from being addicted and using poisons over a sustained period of time and then have that opportunity just to break free from that and get well. Whether it’s for one year or not, the physical transformation is amazing and just also the accountability is really important for our participants. If somebody’s facing full-time imprisonment, they’re very used to hating authority. Everybody else is to blame for the situation they find themselves in. Whereas in our Court, it’s an honesty-based program and so the participant is responsible for their own outcomes and we as a team and a Court are providing them with opportunities. What more can we do for you? If there’s a failure, it’s not because of the Court or the person in authority, it’s because of them and so just that shift is really interesting to watch as well.

Peter McClellan Judge, you mentioned the Indigenous list. Can you just help us to understand how that operates?

Judge Mottley Sure. Our Indigenous list at Parramatta is every Tuesday and we adopt a somewhat different approach where we invite the participant to actually sit at the bar table together with each of the team members and the judge and it’s a much more informal and relaxed environment, rather than the judge sitting at the bench upon high and the participants standing at a microphone towards the rear of the courtroom, the whole Court is conducted around a table environment and what we’ve discovered is the participants are much more forthcoming with information about their struggles or their achievements, what’s happening in their life, what they’re hoping to gain. Just that conversation is much, more free flowing and we find that we’re having a greater level of engagement by adopting that approach. We also, on occasions, do that when we are finding that a participant is struggling in some way and so it just creates a more intimate environment where we can hopefully give some support to the participant in a less adversarial situation that the courtroom might otherwise present in.

Peter McClellan Why don’t you do that for every person before the Drug Court?

Judge Mottley It just makes it logistically a little bit more difficult, that’s all.

Peter McClellan Is it? Would you prefer to do every case in that way?

Judge Mottley I think there’s merit to it. It’s just a very slow process because there’s no one else in the courtroom, it’s a closed court environment and we find that works very well with our Indigenous participants and also, as I say, with those that are having a particular struggle. The information that we find out about our participants is quite extraordinary, so we could be hearing about very sensitive personal information. Sexual assault, for example, might come tumbling out in the course of one of these roundtable meetings.

Peter McClellan Judge, thank you very much for joining us to chat about these matters this morning. The community fully understands, I’m sure, the contribution which the Court makes. Drugs have become a scourge on our community over now many decades, and the work that you and your colleagues do is important in helping the community to redress the problems that we find. Thank you for coming to join us this morning.

Judge Mottley Thank you.

Peter McClellan You have been listening to Judge Jane Mottley, the Senior Judge of the NSW Drug Court. This podcast Sentencing Explained is brought to you by the NSW Sentencing Council, the teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan thank you for listening. 

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

We are joined today by Justice Robert Justice Beech-Jones, the Chief Judge at Common Law in the NSW Supreme Court. Also joining us is Justice Derek Price, the Chief Judge of the District Court. Both judges have extensive experience as criminal judges and have been involved in the sentencing of many offenders. Today we’re going to talk to them about the appeal processes for sentence matters.

Peter McClellan Firstly today, we are joined by Justice Beech-Jones.

Justice Beech-Jones Good morning, Peter.

Peter McClellan Judge, how long have you been a judge of the Supreme Court?

Justice Beech-Jones Well, I was appointed on 12th of March 2012.

Peter McClellan Now you’re now the Chief Judge at Common Law, but I think you were originally appointed as a trial judge in the common law division of the Court. Is that right?

Justice Beech-Jones That’s right.

Peter McClellan What does that mean? What does a common law judge do?

Justice Beech-Jones Right, so the Supreme Court structure, actually, I think is modelled on the English structure of what they call the Queen’s Bench and Chancery, and at a trial level we split the court at a trial level in half, to the common law division and the equity division.

The common law division picks up crime, but it also picks up such areas as personal injury, a lot of administrative law, a lot of statutory appeals in various areas, including some areas of crime and some types of civil and commercial cases.

The equity division picks up land disputes, will disputes and a lot of commercial disputes. And at an administrative level, the Chief Judge at Common Law supervises the approximately 22 judges in the common law division who make up that division, and as we’ll discuss, also sit on the Court of Criminal Appeal.

Peter McClellan So you do trials in the Supreme Court?

Justice Beech-Jones I do a mixture, I mean personally, I do a mixture of trials, I also sit in the Court of Appeal and I sit in the Court of Criminal Appeal. In terms of what we mean by criminal trials, I do less now as Chief Judge, but I did do them as a trial judge.

Peter McClellan And what crimes are tried in the Supreme Court?

Justice Beech-Jones Well, the crimes that are tried in Supreme Court are, we have exclusive jurisdiction over murder, all murder trials come here. We also do high, particular forms of terrorism trials. And there’s also a scope for the prosecutors, sometimes the accused, to ask the Chief Justice to take up cases that might otherwise be tried at the District Court that are seen of some particular or special importance.

The most common example of that is particular white-collar cases like corruption or insider trading, or some sort of corporate malfeasance. But every now and then there were just a particular case that has novelty or particular public interest value.

Peter McClellan Now murder trials, are they tried with a jury?

Justice Beech-Jones Most murder trials are tried with the jury, but in New South Wales an accused can elect to be tried by judge alone. That will happen if the prosecution agrees, or if the judge decides it’s in the interest of justice to do so. So as there have been some cases and I’ve seen, I’ve done two myself, where I’ve heard a, I’ve written a judgment in a trial of a murder accused charged with murder, which was with no jury.

Peter McClellan And trials in the District Court I take it cover a much broader range of…?

Justice Beech-Jones Trials in the District court pretty much cover everything, if I could say, between the upper end of the Local Court’s jurisdiction, which can be break and enters, uh, things as serious as that, some indecent assaults and some robberies like robbery from the person. So everything from that level pretty much all the way up to just below murder, so that can be attempted murder, robbery, sexual assault, some forms of white-collar crime, indeed some terrorism cases, uh, a very, very broad range of criminal trials.

Peter McClellan And I think when the lawyers talk about jury trials as trials on indictment, and we’ll talk about what that means in another podcast episode, but I want to look today at the question of appeals.

Justice Beech-Jones Sure.

Peter McClellan If someone has been convicted after a jury trial, so the jury’s found them guilty and it’s then the responsibility of the trial judge to sentence them, what rights of appeal does someone have after they’ve been convicted following a jury trial?

Justice Beech-Jones: Well, so it would that be jury trial in the District Court or Supreme Court. Well, they have a, a, we will call it a right, they have to theoretically seek leave, but they’ll effectively get an appeal to the Court of Criminal Appeal and the Court of Criminal Appeal is a, effectively a division of Supreme Court, but it’s actually theoretically a separate court created under Criminal Appeal Act.

The Chief Justice of New South Wales nominates three judges to sit on that appeal. Usually that will be two judges from the common law division and there’ll be a third judge who’s presiding. That’ll commonly be either the Chief Justice, a member of the Court of Appeal, myself or sometimes a senior judge of the common law division.

Peter McClellan And am I right in thinking that you have the day-to-day responsibility for the functioning of that court?

Justice Beech-Jones Well, I’ll be careful. It’s the Chief Justice’s Court, but yes, I have the day-to-day responsibility of the division. In practical terms, either I or sometimes a senior judge of the division will preside half the month in the Court of Criminal Appeal and the other half of the month will be either the Chief Justice or another judge of appeal.

Peter McClellan So someone has been convicted can appeal against their conviction on, because there’s been a, an alleged error of law? Or what about fact?

Justice Beech-Jones: Well, there are three broad grounds. One is that the verdict was unreasonable. Another is that there was some error of law in the conduct of the trial, and the third is kind of a catch-all, that is that there was a miscarriage of justice.

And in your point about the facts, generally the appeals on facts, that is look, the law was okay, but really, the evidence against me wasn’t strong enough, that’s usually covered by the first ground, that the verdict was unreasonable.

Peter McClellan Right, and in terms of the number of, if I can call them this, conviction appeals in a year, how many of those would be dealt with by the Court of Criminal Appeal?

Justice Beech-Jones I think all up the Court of Criminal Appeal will do about 380 cases altogether, but of those, I think about 90 to 100 would be conviction appeals.

Peter McClellan And if it’s a judge alone trial, I take it the judge who hears that trial has to give reasons for their decision?

Justice Beech-Jones They do, yeah.

Peter McClellan Are the appeal rights any different from a judge alone trial?

Justice Beech-Jones The appeal rights are theoretically no different, but in a practical sense there is more for the Court to have a look at because you have the actual reasons of the of the trial judge. If you’ve got a jury trial, all you have is the judge’s summing up, which is where the judge tells the jury the legal principles that apply and basically outlines each side’s case and then you get the jury’s answer. Whereas in a judge alone trial, you have the more fulsome reasons and you know why the verdict came about as it did.

Peter McClellan Now I take it someone who’s been convicted can appeal not only against their conviction, but also against their sentence if they say the sentence is too high. What rights do they have to bring that appeal?

Justice Beech-Jones Well as I said that they have to theoretically seek leave to appeal. But in practical terms, it’s very rare to refuse someone leave without ever hearing really the substance of their appeal. And in terms of the grounds, it’s really two broad ways of looking at it. One is what we would call a particular error, that is a failure to take into account something that should have been taken into account, or a misconstruction of the sentencing statute, or getting some particular fact clearly wrong. And then a more catch all – that even if there was no specific error, the sentence was too high, or as we would say, manifestly excessive.

Peter McClellan Now I think sentence appeals can be dealt with by two judges rather than three. Does that happen very much these days?

Justice Beech-Jones Practically speaking, we don’t do that. Uh, I’m not familiar with all the historical reasons, but the possibility you’d have two sit on appeal and that one, they’d each disagree, you’d have to bring a third judge in, that meant that in practical terms, we just moved to have three judges here.

Peter McClellan I think it might have also had something to do with a backlog of cases at some stage, so that two was a more efficient use of the resources.

Justice Beech-Jones I’m sure that was the reason then. The way, in recent times it’s, it’s fallen into disrepute, but anyway.

Peter McClellan And do you have any stats on success rates?

Justice Beech-Jones I don’t have them to my mind. I really have to ask to do it as approximately I would suspect that the number of sentence appeals that are successful would probably be in the 30 to 40 percent range, and I suspect convictions would be in the 20 to 30 percent range. I would add, I think sentence appeals have a pretty high success rate because as a general view, NSW has one of the most complex sentencing regimes anywhere in the world.

Peter McClellan Now what about the Crown? We talked about the accused or the convicted person having an entitlement to appeal, but what about the Crown? What rights does the Crown have to appeal?

Justice Beech-Jones Well, I’ll deal with conviction first, because it’s logical. But historically the prosecution does not have a right of appeal against convictions. Although in New South Wales under one particular provision of the Crimes (Appeal and Review) Act, they can actually appeal where the trial judge directs the jury to return a verdict of not guilty, and then they can appeal on a question of law, or a question of law alone. And that’s really directed to a particularly rare type of case where the judge takes it out of the hands of the jury on some question of principle, and then the prosecution can appeal. When it comes to sentence, and this is much, much, because those types of appeals are quite uncommon. When it comes to sentence, the prosecution can appeal and although they can appeal against sentence and although they can raise particular errors in the way that the sentencing judge may have dealt with it, broadly, the most common one, and really the court will not intervene unless it’s thought that the sentence was manifestly inadequate. That is, really far too low.

Peter McClellan And I think there are some probably less used rights of the Crown under the Crimes (Appeal and Review) Act, one I think is a provision that entitles the Crown to bring an appeal in a serious matter where there’s been new evidence discovered. Is that, is that right?

Justice Beech-Jones That’s, well, that’s very rare, and indeed the only case that I’m aware of that was a, well, they sought to do that was a, a fairly famous and notorious case in New South Wales, I think relating to a person who was acquitted of three of the murders of some young Indigenous people. But there is a, a very rare power to, for the Crown to apply to the Court of Criminal Appeal to retry someone where they’ve been acquitted on the basis that there is, since the time of their trial, fresh evidence. And that is an exceptional one, because traditionally if someone has been acquitted of an offence, that cannot be reagitated in another trial. This provision, as I said, came in as an exception to that. But as I know, it’s only ever sought to be invoked once and was unsuccessful.

Peter McClellan Yeah, now for the Crown to succeed in a sentence appeal, what does it have to have to show?

Justice Beech-Jones Well, uh, they really have to show two things. Well, they have to show three things. Usually they have to show error by the sentencing judge, that is some mistake. That error can be the sentence was manifestly too low. It can be other forms of error that they, of the kind talked about earlier. But to have the Court intervene and re-sentence, the Court will only do that if the sentence was manifestly inadequate, and they will only do that if the Court – sorry, the Crown has persuaded the Court that it shouldn’t exercise what’s known as the residual discretion to dismiss the appeal. It’s a bit of a double negative there, but the Court, the prosecution has to persuade the Court that there’s no reason not to exercise the discretion. And that that really comes up with things like the Court will exercise that discretion, if, say, the prosecution has been too slow in bringing up an appeal against sentence, so if they’ve let someone languish for a period of time in custody, believing that the sentence they’ve got is the sentence that they will serve, and yet, and then many, many, many months later, without putting them on notice, the Crown says, hang on, we think that sentence was too low, well, that might be a circumstance where the Court of Criminal Appeal might say, yes, we do think that sequence was too low, but we put this person through too much by letting them believe that that was going to be their sentence and they won’t intervene.

Peter McClellan And one of the questions that exercises the minds I know of the general public very often is the question of new trials.

If a person has been convicted and goes to the Court of Criminal Appeal, does the Court have the right, if it’s persuaded that error has occurred, to acquit the person?

Justice Beech-Jones The Court has the – I will never use the word right – the power to acquit someone depending on what the problem with the trial was. So, if the, if the appellant persuades the Court that the verdict was unreasonable, then in the ordinary course, the Court of Criminal Appeal will quash the conviction and enter an acquittal because we just don’t allow prosecutions to rerun cases for the sake of it. If there was a problem because the evidence wasn’t good enough, that’s the end of it.

If the appellant, however, persuades the court that what happened was some legal error in the course of the trial, say the trial judge told the jury that what the elements of an offence were and that was wrong in law, then the starting point from the Court of Criminal Appeal will be well, sure, your trial miscarried, but the public interest would require that this go back for a further trial and then it’ll be a matter for the Director of Public Prosecutions as to whether they’ll pursue a further trial.

In some cases where say, this may be the second or third time this has happened, the Court of Criminal Appeal will say well look, hang on, enough is enough, yes there was an error in this trial, but we will not direct that there be a new trial, that will be the end of it.

Peter McClellan So does the Court then enter an acquittal, or what happens?

Justice Beech-Jones The other Court sets aside the conviction and there will be no new trial, and sometimes they’ll enter an acquittal, otherwise, they direct that there would be no new trial, and they’ll have the benefit of the presumption of innocence.

Peter McClellan In many cases another trial would be a burden of course for the accused, but also for any person giving evidence for the prosecution. I think there are special rules that relate to sexual assault trials, are there?

Justice Beech-Jones There’s a special rule that enables a victim, where a victim of a sexual assault has given evidence at a first trial, and the Court of Criminal Appeal sets aside the verdict because the type of error that I’ve been talking about, there’s a capacity for the further trial, their evidence from the first trial to be replayed, being if it was recorded, or the transcript to be read out.

But it’s not inviolable, and sometimes it may be thought necessary that they, depending on the attitude of the victim and what the error was in the first trial, that they may have to give evidence further again, or it may be the Director may say we won’t put the person through that again. But there is a capacity to do that, it’s just not inviolable.

Peter McClellan Yeah, it would be a great burden for many complainants in say, sexual assault cases to have to subject, be subjected to cross examination a second time, wouldn’t it.

Justice Beech-Jones And well, very much a burden to have to relive it again. Absolutely, there’s no doubt about that. I must say, a very common position of the Court of Criminal Appeal when weighing these things up, is to direct there be a new trial but on the understanding that the Director of Public Prosecutions, who has the direct dealings with victims, will consider very carefully the position of the victim as to whether there can be a trial without the victim’s giving further evidence, and if there can’t be, whether there will be a new trial. And I presume, and hope that the Director does, or the people in Director’s office, will speak very careful closely with the victim about ...

Peter McClellan I’m sure, they do, I think they’ve got a whole section that deals with the problems for everybody.

Justice Beech-Jones Oh, no doubt they do. And I gotta say we, the Court, don’t, so we are we are not in a position to make any of those assessments. There may be some victims who are very determined that they will give evidence because they feel very strongly about it. And there are many victims who are particularly vulnerable.

Peter McClellan Now one question that people often ask is what happens in motion to costs? Let’s say someone been convicted after a four-week trial, which could be pretty expensive, uh, but that conviction is set aside by the Court of Criminal Appeal. Is there any right to, or entitlement to costs?

Justice Beech-Jones Well, the short answer is no. There is an ability to go back to, at the end of a case at trial level to ask a trial judge to make an order for costs in a criminal case that’s resolved in favour of an accused person, but that are very rare, it usually has to involve, uh, some poor conduct on behalf of the Crown or the pursuit of a case that was particularly hopeless. But at the Court of Appeal level, the short answer is there’s no capacity for costs. Crime is very much a jurisdiction where there, um, we don’t make costs orders.

Peter McClellan Just looking again at the role of the Court of Criminal Appeal, if someone has been convicted but brings an appeal, uh, I think sometimes they’re allowed – and they’ve been sentenced to imprisonment, sometimes they’d be allowed bail while the appeal is coming on. Is that common or rare or … ?

Justice Beech-Jones I think the relevant tests in the Bail Act for person in those circumstances is exceptional circumstances. And so although a lot of people do try, it is relatively rare. The type of circumstances where someone will get bail, would usually be a case where they received a relatively short sentence, like something like six months or eight months, and if they could show to the court that they had a reasonable basis for their appeal, and that may get them bail, provided there’s no other particular risk because the feeling may be, well, your appeal will be pretty much worthless if you’ve already served your sentence before then.

Now, leaving aside those circumstances, people, particularly with people with long sentences, they may try, but it’s a very rare, very rare, almost unheard of circumstance that they will get bail pending appeal. And I might say that’s very different to a number of other countries, including the United States, where it’s very common to get bail pending appeal.

Peter McClellan Now, I think there’s also a power in the Court of Criminal Appeal when someone brings an appeal that fails come to order that their time, while awaiting appeal, doesn’t count for their sentence. Is that power utilised these days at all?

Justice Beech-Jones I’ve never seen that power exercised. I hear stories of time long ago where some judges had threatened to exercise the power, but I personally couldn’t envisage what type of circumstances we’d ever really say to an accused person or a convicted person: well, you had a right to bring your appeal but we’re going to punish you by saying that the time you spend in jail before the appeal came on won’t serve as part of your sentence.

Peter McClellan Yeah. And I guess the final question in relation to the powers of the Court of Criminal Appeal is, is there any capacity or power in the Court if a convicted person brings an appeal against sentence, for the Court to increase the sentence?

Justice Beech-Jones There is theoretically a power that if the person comes up and they say this is my sentence, there was an error in it, or my sentence was too low and the Court said, well, no, in fact we think you’re, sorry they say the sentence was too high for the Court to say no, no, well, we think the sentence was too low and we’re going to increase it.

As a matter of theory, that power exists. In fact, and the High Court has confirmed this, firstly the obligation upon the Court, if it formed that view, would be to tell the person they formed that view, to give them the opportunity to withdraw the appeal.

And they’ve also told us that if we’re, if we are in the comfort of our own room, writing away, and even if we find an error and we’re starting to look at the sentence again, if we think it’s too low, our obligation is to dismiss the appeal.

So in practical terms, uh, someone who appeals against their sentence, well I can’t really envisage any circumstances in which they’ll receive an increase, as opposed to, of course, to a prosecution appeal, which is, yeah, that’s quite a common outcome.

Peter McClellan Is there any capacity for the Court of Criminal Appeal to look at the circumstances of the convicted person at the time of the appeal as opposed to when they were originally sentenced?

Justice Beech-Jones Yes, the answer that’s not so straightforward. So, um, firstly, I think I talked earlier about finding a specific, that one of the grounds for people when they appeal against sentence is to try and find some specific error. If they were able to find some error, including a legal error made by the sentencing judge, then the High Court has, has confirmed, that the task of the Court of Criminal Appeal then is to conduct a complete resentencing.

And when we can, so we effectively put aside the sentence imposed by the sentencing judge, not the findings, but the sentence that’s imposed, and do it again ourselves. And when we do that task, we very much do consider an update as it were, on their circumstances, including very commonly, how they’ve behaved in custody, so that is, has that shown that they were, they are in fact on a path towards rehabilitation. We also consider what their, what conditions they have experienced in custody, and a very common one now is the difficulties with COVID.

If they don’t establish that form of error, then the ability to consider something that’s happened since the time they are sentenced is really quite narrow. There are some particular cases, particularly people have particular health conditions who were sentenced on the basis that they were going to be reasonably cared for, to a reasonable standard in the prison system, and then that proved to be that, that promise proved to be wholly illusory. They have been able to establish an error for that reason, and the Court will consider that. But those cases are fairly narrowly confined because the one thing the Court of Criminal Appeal is not there to do is simply to start by simply resentencing everyone by saying, well, this is what happened to you since the time you were sentenced. Sentencing is primarily done by sentencing judges and the Court of Criminal Appeal would literally be swamped if it was simply there to simply re-look at the circumstances of every prisoner.

Peter McClellan Yeah, is this the Court of Criminal Appeal sitting every day?

Justice Beech-Jones It’s three days a week, Monday, Wednesday and Friday. It’s a very, very, uh there’d be a competition between it and the Court of Appeal to be the busiest intermediate court of appeal in the country. But a common day in the in the Court of Criminal Appeal is to hear one conviction appeal and then three sentence appeals.

Peter McClellan So that’s four cases in a day and three days a week, 12 cases.

Justice Beech-Jones Yeah, 12 cases, 12 cases a week in a common week.

Peter McClellan It’s a lot of writing for the Chief Judge, isn’t it?

Justice Beech-Jones That’s a lot of writing for the Chief Judge. It’s a lot of writing for all the judges.

Peter McClellan Yeah, yes. Well, now it’s often not appreciated, in fact it’s mostly overlooked, but more than 90 percent of criminal trials are conducted in the Local Court, and they’re all judge alone trials. Now, I think there is a right which I don’t need to talk to you about, we’ll talk to Justice Price who’s the Chief Judge of the District Court about the right of appeal directly to the District Court from a conviction and sentence in the Local Court. But there is, I think, a limited right to come from the Local Court to the Supreme Court or to the Court of Criminal Appeal, I think. Can you help me there?

Justice Beech-Jones There is a series of appeal rights, on effectively on what are confined to questions of law and the Crimes (Appeal and Review) Act from the Local Court. That includes the power of appeal to the District Court you mentioned, but also on questions of law to the Supreme Court, but also to the Land and Environment Court in some of their environmental regulatory offences. And they come to a single judge of the common law division, and we’d probably hear one or two a week. They come up from the Local Court in that jurisdiction and that’s usually about some question of principle, question of law that wants to be raised. Now they either come up because often Legal Aid identify some question affecting a lot of criminal prosecutions in the Local Court that they want to raise, or it’s a means by which the prosecution can raise a question of law that’s led to an acquittal in the Local Court that they can bring to the Supreme Court, because they cannot appeal to the District Court against an acquittal, they can appeal against sentence, but not against acquittal.

So by that way, one way or another, we do get appeals direct from the Local Court in its criminal jurisdiction, and its criminal jurisdiction is very broad. They have a power to, uh, for single offences up to two years, but to impose an aggregate sentence up to three years. And there is in fact some particular offences where they can go up to five years.

Peter McClellan They go up to five.

Justice Beech-Jones Yeah.

Peter McClellan Just so we understand it, the Crown has a right, after an acquittal in the Local Court to bring an appeal on a question of law?

Justice Beech-Jones In some circumstances, yes, provided the ….

Peter McClellan Which could upset the acquittal?

Justice Beech-Jones It did … It could send it back and require the magistrate to do it again.

Peter McClellan Right.

Justice Beech-Jones And I think historically that’s a bit more justified because we’re not dealing with an acquittal by jury, which is, has a particular status.

Peter McClellan It’s an anomaly though, isn’t it, really?

Justice Beech-Jones It’s just only started to be eroded by statute.

Peter McClellan Yeah, yeah. And those cases are heard by just one…

Justice Beech-Jones One judge.

Peter McClellan …common law judge?

Justice Beech-Jones Judge in the common law division, yeah.

Peter McClellan Right, and would there be a right of appeal to the Court of Criminal Appeal or to the Court of Appeal?

Justice Beech-Jones To the Court of Appeal from those ones.

Peter McClellan Yeah, which is another strange anomaly in the system, isn’t it?

Justice Beech-Jones Well, it’s a, if you wanted to put together a flow chart, it would not be a pretty sight. And equally, as you mentioned, the District Court appeal from there, an appeal from the District Court hearing an appeal from the Local Court in crime goes to the Court of Appeal and there has to be a writ that shows jurisdictional error.

Peter McClellan Which is the old form of 19th century, I think, form of appeal.

Justice Beech-Jones It is the old 19^th century form of appeal and there is a, and we are still fighting about the boundaries of that form of appeal.

Peter McClellan Judges don’t fight do they?

Justice Beech-Jones Well, arguing or having mild disagreements.

Peter McClellan: Ah, I see. Now the only other thing, I suppose, we haven’t talked about is the right of appeal, if it is the right of appeal, to the High Court. How could that come about?

Justice Beech-Jones Well, it, from the Court of Criminal Appeal and from the Court of Appeal, people can, uh, litigate, it’d be the prosecutor in this case, or a convicted person can seek special leave to appeal to the High Court.

There is a theoretical possibility of going directly from a Supreme Court case to the High Court, but we’ve put that aside. It’s quite common, it’s a, a very significant part of the High Court’s jurisdiction, hearing applications for special leave to appeal from both the Court of Criminal Appeal of this state and equivalent decisions made in, made in other states.

Peter McClellan I think that’s a development of the last 15 or 20 years. I don’t think it was that common in earlier days.

Justice Beech-Jones Well, indeed, as you say, the last 15 to 20 years because 30 years ago they almost never heard an appeal in a sentencing case and they would have heard many, a number of appeals from New South Wales in sentencing cases over the last, uh, 15 years. And it’s, criminal law would be, my guess would be about a quarter of the High Court’s jurisdiction. To get special leave, it is ordinarily required to show a question of public importance, although in crime, the High Court will, if they consider that there is a strong case of an injustice, hear on appeal as well.

Peter McClellan I think there’s been a lot of discussion in recent years in the High Court about the provision that deals with unreasonable verdicts. And I, I think the consequence of what the High Court’s done in recent times is to allow greater intervention by the Court of Criminal Appeal and by the High Court itself, is that, is that right?

Justice Beech-Jones Um, I, I think that would be, uh, debatable. I think one of the counter view would be that they were applying the principles that they’ve often did. There’s no doubt that the decision in Pell I think brought home to people that that jurisdiction still exists and the, that was a case very much looking at the particular facts of that case, but that power has always been there. There is a debate about the various formulations of the test to be applied by a court of criminal appeal when applying that unreasonable verdict. The High Court expresses it in different ways at different times, but they all, I think the Court would say, yes but they’re all describing the same approach.

Peter McClellan Well, as I understand it, the Court started to change course a little after the full circumstances of the Chamberlain case emerged, you may not be familiar …

Justice Beech-Jones This may be before my time.

Peter McClellan It probably is before your time actually.

Justice Beech-Jones As a judge, certainly yeah.

Peter McClellan But of course there was a conviction there and there was an appeal that ultimately found its way to the High Court. The High Court refused to intervene. And then of course there was an inquiry and ultimately, there was a full pardon because everyone was satisfied that they had not committed the crime.

It is said that that’s the point at which the High Court started to look again at its power to intervene because the verdict was unreasonable, but that’s perhaps a bit of history. We don’t need to …

Justice Beech-Jones Well, that is a bit of history, I mean the description of the power, the High Court’s description of the power of a criminal appeal court to intervene in M v the Queen is, I think, probably seen as the high watermark of the Court’s power. And that talks about the Court conducting an independent review of the evidence itself. At other times they use a phrase whether, for the Court to determine whether it was reasonably open for the jury to conclude. Now there are some who see differences. I think that the High Court would say that there are no differences.

Peter McClellan Thank you Judge, that was an interesting discussion.

We are now joined by Justice Derek Price, who is the Chief Judge of the District Court. He is going to talk to us about the District Court’s role in hearing appeals in relation to sentence matters, particularly appeals from the Local Court. Good morning, Judge.

Price CJ Good morning, Peter.

Peter McClellan Judge as I understand it, you have a very interesting judicial career. Can you just briefly tell us where it started and where you are now?

Price CJ Certainly. I was appointed magistrate in 1988, then a judge of the District Court in about 1999. Then I became the Chief Magistrate of New South Wales in 2002, and in 2006 I was appointed a judge of the Supreme Court. And I served under you as Chief Judge of Common Law. And in 2014 I became the Chief Judge of the District Court and President of the Dust Diseases Tribunal. I'm still a judge of the Supreme Court and still sit regularly in the Court of Criminal Appeal.

Peter McClellan That sounds like a fairly extensive exposure to the law. But I assume in each of those roles you've done quite a bit of work in crime. Is that, is that right?

Price CJ Certainly, very much so. As you may recall at my time as a judge of the Supreme Court in particular, I was a trial judge in many murder trials and I have sat now on the Court of Criminal Appeal since, oh it would be now some 16 years, and of course when I was a judge of the District Court, I was also a trial judge and as a magistrate I was engaged in sentencing on a very regular basis.

Peter McClellan How many criminal cases in a year would the District Court manage?

Price CJ Well, as a pending criminal trial caseload, we have between 1600 to 2200 criminal trials a year and so far as pending. Sentence case load, we also have close to 1000 pending people to sentence each year. In addition to that, the District Court is the Court of Appeal from the Local Court, both for severity appeals and conviction appeals.

Peter McClellan Your Court receives appeals from decisions by way of conviction and sentence from the Local Court?

Justice Price That’s right. The appeal process for what we refer to as severity appeals, that is when the defendant in the Local Court complains about the length of the sentence, the severity of it, whatever it be, then he or she can appeal to the District Court. The hearing in the District Court is a hearing de novo, in other words, I’ll explain that, it is not just done on the papers, essentially, this is a severity appeal on what has been done in the Local Court, the appellant, the defendant, the appellant as we refer to them when they arrive in the District Court can produce new evidence and can give oral evidence before the District Court judge.

Peter McClellan Judge, can you talk to us a little about conviction appeals?

Justice Price: So far as conviction appeals are concerned, in proceedings in the Local Court, as in all court proceedings, there’s a transcript, in other words what everybody said in the proceedings in the Local Court, recorded. And then there is a transcript produced, that transcript is produced to the District Court judge.

This is a conviction appeal, in other words, the appellant is not appealing only against the sentence, but also about the very fact of the offence being found established by the Magistrate. And it is done on the transcript of the papers in the, of the hearing in the Local Court. The parties are asked to provide, to identify the issues that cause the complaint of wrongful conviction and then usually it’s done by way of argument on the papers. There is an ability to present fresh evidence in limited circumstances.

Peter McClellan What options does the District Court have when dealing with a sentencing appeal? 

Justice Price: The District Court judge can either confirm the sentence imposed by the magistrate in the Local Court, or can vary the sentence in any particular way, the judge has that independent discretion to do that.

Peter McClellan Thank you, Judge, for your time today.

Peter McClellan You have been listening to Justice Beech-Jones and Justice Price on the topic of sentencing appeals.

This podcast is bought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available at the Sentencing Council’s website. I’m Peter McClellan, Chair of the Council. Thank you for listening.

Peter McClellan Hello. Welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora Nation. We pay our respects to their Elders past and present and to all Aboriginal and Torres Strait Islander people listening today.

Joining us today is Mr Peter Severin, who for a number of years was the Commissioner of Corrective Services in New South Wales. Peter has a long experience of managing corrective service facilities. He is going to talk today about the impact of sentences upon offenders and how they are managed both inside jails and also when they return to the community.

Good morning, Peter.

Peter Severin Morning Peter and thanks for having me.

Peter McClellan Peter, I just mentioned that you were the Commissioner for Corrective Services. For how long were you the Commissioner in NSW?

Peter Severin Almost nine years, so I started September 2012 and I retired from the role on the 1st of August in 2021.

Peter McClellan And I assume before that you’d been working in Corrective Services. Can you give us a brief account of your history?

Peter Severin My entire time in corrective services, actually was 41 years and that says something about my age, I guess. I started my career in Germany, so I’m originally from Germany, but my mother is Australian so at some stage it was a very good move for me to come to my second home country. And I worked in corrections after I finished a degree in social work and then did training as prison officer, actually in Germany and I started that in 1980. And then in 1988 I came to Australia, never to work in corrections again, and only to find myself working for Queensland Corrective Services, not as a prison officer, but in my area of study, which was social work, from the beginning of 1989.

Peter McClellan And before NSW, where were you?

Peter Severin Before NSW, I stayed in Queensland for almost 15 years. I ended up being the deputy of the department up there, and then I was appointed as the Commissioner or Chief Executive as it’s called in South Australia where I stayed for over 9 years.

Peter McClellan Yes, I remember you coming from South Australia.

Peter Severin So all up I’ve been a Commissioner for just over 18 years.

Peter McClellan Now, not everyone probably understands that the role of the Commissioner has two significant elements. One is to look after the prisons and the people who are in prison and the other is to look after people who have been released from prison but are under supervisory orders from courts or the Parole Board in the community.

Now should we see those two functions, as pretty much equally demanding of the Commissioner?

Peter Severin I’d say so. Even though prisons obviously make it into the headlines a lot more often than community corrections, and that’s understandable. There always seems to be a bit of a mystique around what happens in prisons, but managing people in the community is not only a very important part of corrective services, but when you look at numbers, the ratio is more than three to one, so we manage three times as many people, supervise three times as many people in the community under some form of order than we have in prison in New South Wales.

Peter McClellan Now I think you’ve been able to extract some numbers for us just looking at the New South Wales system today. And I think as of March this year there was something over 12,000 people in our prisons, is that about right?

Peter Severin That’s absolutely right. So to be precise, 12,352. And there’s a daily count, and that’s quite significant, because before COVID the numbers were round, about 14,000. So COVID obviously had some impact on prisoner numbers going down, and I think the analysis as to what contributed to that is still being completed. Out of those numbers 62.3%, are actually sentenced prisoners and 37% are on remand being pre-trial custody, those that have been remanded in custody and waiting to be tried and sent before the courts.

Peter McClellan So that means as at March 22, there are more than four and a half thousand people on remand in the prison system.

Peter Severin That’s correct, that’s correct.

Peter McClellan Some of those people, of course, ultimately would be found not guilty and would be free.

Peter Severin Yes, that’s right.

Peter McClellan And others would be found guilty and may be sentenced to full time custody.

Peter Severin That’s right, so they can be sentenced to full time custody. They, in many cases are sentenced to full time custody, but the time on remand is taken into account and they’re literally discharged very quickly. Because the time on remand is seen by the judge or magistrate as sufficient in the context of the offence that they have committed, and others obviously are sentenced to longer terms of imprisonment and then go through the prison system.

Peter McClellan Now Peter, can you just give us a short rundown on what happens when someone is sentenced to prison? They go from the court to the prison in the prison van?

Peter Severin Certainly do.

Peter McClellan And then what happens after that?

Peter Severin They, and this is actually the same for sentence as it is for unsentenced prisoners, so if you’ve come to prison for the very first time, you are going through what is called a reception process. So it’s a process where a lot of information is gathered, but where also some assessments are undertaken to establish that if a prisoner is at risk of suicide or self-harm, for example, if there are any immediate welfare issues that need to be looked after. At times you have people being arrested who have a dog at home and nobody to look after them. So the welfare staff then make sure that some welfare assistance is provided to look after those immediate risks that somebody might face or immediate needs that somebody might have.

Peter Severin The whole focus of this is really geared towards making sure that a person is safe, making sure that the system has enough information to make decisions in relation to the well-being of a prisoner. But also of course to be quite aware of the risk that somebody might be posing to themselves, to others, to the system as a whole. So it’s quite complex, but it is a very important part of the journey that somebody goes through when they first come to prison.

So you physically come into the space. You are provided with the prison clothes. You can’t wear your civilian clothes when you’re in prison. You are, er, medically assessed and you are also inducted. And induction then includes providing information that is aimed to ensure that a person’s transition from liberty into custody is as seamless and smooth as possible and also of course it’s a part of the person being very anxious and being quite frightened at times about what they’re facing. So addressing that and mitigating against, sort of, those emotions is also very much part of an induction process.

Peter McClellan Now obviously people will be sentenced from different courts in different parts of the state. Are these reception facilities available in all of the prisons throughout the state?

Peter Severin They are. Not all of them, but there are hubs so there are reception hubs. They’re sprinkled throughout the state from the north, which is the prison at Grafton right down to the south, which is the prison in Junee. And obviously the majority of the prisoners come from the greater metropolitan Sydney area and there are a number of metropolitan prisons, mainly the metropolitan Remand Reception Centre at Silverwater, responsible to receive male prisoners. Female prisoners, because the numbers are a lot lower, they have some hubs as well and again, but at a much smaller scale, but the main one is the Metropolitan Women’s Prison at Silverwater.

Peter McClellan Now I understand that as part of the reception process the prison system will assess an individual and their level of necessary security. And I think there’s a system for all of that. Can you explain that to us?

Peter Severin That’s correct. Yes, everything in corrections is proceduralised, so if you need to find an answer to anything that is happening, there would no doubt be a procedure that describes exactly what needs to happen. So the classification system is really there to do two things. One is set to identify the actual level of supervision that a person requires based on their risk. And we do have some pretty dangerous people that come to custody and who require a very high level of supervision. And then we also have people who might be at risk from others who need a higher level of supervision. So the system, to go very quickly through it, starts with what is largely referred to as maximum security, and there are two levels within that rating, medium security and minimum security. Minimum security would generally be a classification that a person gets before the sentence expires or before the person is eligible to be paroled or apply for parole.

And of course it’s all dependent on their behaviour and their ongoing work and engagement with Corrective Services throughout the term of their imprisonment. So classification is there to internally determine where a person needs to be housed, what level of supervision a prisoner needs to be subject to, and any other issue that needs to be considered, such as the need to be protected. The need to not be housed with certain others, and also then right through to the type of engagement and programs and work and education that a prisoner might want to participate in.

Peter McClellan Now you mentioned different levels of classification. Depending upon your level of classification, do you go then to a different prison to serve your term? How does that work?

Peter Severin So you might start in a maximum security centre and let’s just pick one. If you start for example, in Kempsey, which is, called the Mid North Coast Correctional Centre, it’s a centre of all classifications. It’s a hub, so you can be there as a remand prisoner, and while you’re on remand, you can only really have a very limited graduated sort of classification system. The whole system is only available to sentenced prisoners for obvious reasons. So you might start as a maximum security prisoner. You might be serving a ten year sentence, let’s say for example. So you would find yourself on that maximum security classification for a period of time and you’re regularly reassessed. So at the minimum of annual formal reassessment, you are looked at and you as a prisoner have the opportunity to also put submissions forward to the case management team that makes a termination about classification. And then if you have met all the requirements of your sentence plan and everything is planned for, you might then be reclassified to medium security and you might be transferred to a medium security prison or to a different section, in this particular case of mid North Coast.

Peter McClellan And what’s the difference between a maximum security and, say, a medium security prison? What’s the experience like?

Peter Severin Very restricted in maximum security. So your day is very much structured in a way that gives you access outside yourself for about 8 hours. You can engage in some work, not all work, so you won’t be allowed to work with very dangerous tools, for example, you will not be allowed to access areas in the prison unsupervised.

You go to medium security and you will be allowed to work in workshops where you might have to handle more dangerous tools in metal workshops or so on. Medium security, you will still have a secure perimeter around you like a fence or wall, but within that your level of freedom is a bit higher than it would be for maximum security, so you can already start engaging in more interaction with others. You can participate in a range of other group activities that are not freely available to maximum security.

Minimum security, again has various classifications within it, but at the absolute end of that, you would be in a place which might be a farm. And there’s no fence and you’re there because you can be trusted and because you actually cooperate with the requirements of the system and you enjoy the freedoms of somebody who literally just lives in a place where they need to stay and you work during the day, you have your leisure time. You don’t get locked up in a cell of a night time. You don’t have any fences around you anymore. And the sort of more restrictive minimum security environment might still have a fence. Might still confine people or prisoners to a certain group area overnight in their rooms, but during the day they might be able to work unsupervised or very loosely supervised in workshops or on particular projects.

Peter McClellan Something I’ve often wondered about, maximum security or medium security prisons, are they given, each given an individual cell or are there multiple offenders in each cell?

Peter Severin They’re both. So, NSW had a policy from an infrastructure perspective of a two third double cell and one third single cell approach and the reason for that is that for many people being confined on your own for a long period of time during a day is actually quite stressful. Now, having a person to share a room with is an opportunity to have some social interaction etc and this thinking goes back quite a while. More and more, the system is now moving towards trying to have single cell accommodation and do it in a way that if you have to, you can double it up so when we built a lot of cells in my last few years as the Commissioner here, we built in some surge capacity, as we call it. So it’s not official capacity, but if the system ever experienced growth, that is beyond the capacity of the existing cells, there’s some surge capacity built in. So the short answer is single cell is, in this day and age, the preferred option. Double cell will always be necessary, but it should be purpose designed double cell and not just simply a mattress on the floor. However, in saying that in about 2014 the system started experiencing exceptional growth in prisoner numbers. The government had to respond by putting a lot of money forward to build new cells. At that time we had about 70% of single cells in maximum security, not by choice, but by necessity, doubled up.

Peter McClellan Now you mentioned working and metal working and so on. What sort of programs are there for prisoners?

Peter Severin Actually, quite a broad range of programs. If I start with education, about 70% of prisoners are functionally illiterate. So functional literacy defines itself as having a literacy standard of grade eight. So anything below grade eight is seen as functional illiteracy. So if you think about it that way, the real focus has to be on literacy and numeracy, because that also enables prisoners to engage in vocational training, for example, and other forms of learning. So the education focus is very much on functional literacy and numeracy, and in that process prisoners can obtain some level of competency through a formal system which is actually recognised right around Australia and that means, without identifying the fact that you’ve obtained that in a prison. We use the TAFE system basically to do that or the system does. Work NSW actually has got a quite outstanding industry program and it’s really recognised, certainly in Australia and much further as well. The corrective services industry is trying to emulate real work situations in industry in the community. So there are internal works, so a lot of self-sufficiency is organised through the industries from food production, right through to production of any kind of furniture. Everything is built in house. Any kind of machinery that is needed for farming activities, except obviously tractors and things that require formal certification etc, is all done in house.

For the prison bed program, for example, the corrective services industry built about 5000 beds and other furniture bits, and in doing that there is also an opportunity to do traineeships and in some cases even apprenticeships for offenders. So the types of industry are very traditional, so it’s metal work, there’s carpentry, painting, and then the food production, as I mentioned before. All the farms have produce and that is then used for internal consumption in the first instance.

Peter McClellan It used to be the case, I think, that hospital linen and so on was laundered in the prison system, is that right?

Peter Severin That is right, yes. However, sort of competitive neutrality principles and I don’t want to delve into the sort of areas of quite esoteric requirements, but we need to compete. We need to be fair to the public sector, to the private sector market in New South Wales. We can’t take work away from the private sector and we can’t take work away from New South Wales citizens who work in the community. So the program of doing linen for other parts of government like hospitals has really been scaled back because they’re commercial laundries out there who want that work and deserve that work. But all the in-house linen is still being looked after by corrective service industry and in some regional areas where there is simply no commercial provider …

Peter McClellan No competition.

Peter Severin … corrective service industries fills that gap, but it is a very important part of the activity as well.

Peter McClellan Now I think also prisoners who need it, can also receive specialised professional help in the prison system. Can you just tell us a little bit about that?

Peter Severin So I’ve already mentioned welfare. That’s sort of the basic approach to assisting people or prisoners who have a particular requirement. There is clearly a counselling service through programs, officers, social workers etc. And then there is a very specialised psychological service. So the psychological service is largely focused on forensic psychology, meaning psychology that actually assists prisoners to address the underlying causes of their offending behaviour. But also that deal with issues like mental health and the whole range of other problems that prisoners experience.

The psychologists are also very much involved together with the programs officers in running intervention programs to address particular risks and needs. So for example, drug and alcohol programs, programs to deal with addiction or other types of addictions, gambling etc. Programs to deal with violence, programs to deal with sexual violence and that obviously, while it is not a very large number of prisoners who are in custody for sexual violence against women or children, the victimisation is of course very, very high, meaning that the impact on the community and on victims is a lot higher, than if somebody steals a bicycle and I don’t want to trivialise this, but really dealing with sexual offenders is a very important part of the rehabilitation for that very high risk offender group.

So there’s a whole area of intervention opportunity and Corrective Services NSW is not actually developing and inventing all that themselves. They’re looking at what is good practice elsewhere in the world, what has been evaluated as being effective and working, delivering the outcomes that are desired and then we emulate that as every other jurisdiction would do as well. So it’s not about us trying to do something that nobody else has done, it’s really about learning what is the most effective way in the context of science, research, evaluation of offering specialised services.

Peter McClellan And Peter, I think it’s fairly common to find that in the background of an offender, particularly in their early years, something went wrong in their upbringing, either a family issue, they were sexually abused, or they suffered violence in some way. Are those issues sorted out and identified in prisoners when they come into the system?

Peter Severin That’s right, yeah. I mean certainly trauma and their whole sort of life history is very much part of establishing the baseline and then developing the plan. And you are absolutely right, the level of abuse and also disadvantage, many, many people in prisons have gone through is significant and without trivialising the role of prisons, but really, prisons are at the end of the conveyor belt, if you want to look at it that way.

Peter McClellan Well, you probably know that the Royal Commission looking at the sexual abuse of children talked to prisoners and spoke to more than 700 who came forward to identify themselves as having been abused as children. But I imagine many prisoners suffer other forms of abuse in their journey through their early lives.

Peter Severin Starting from just neglect, right through to sexual trauma and anything in between unfortunately, is part of the experience of many prisoners and even those that are very dangerous themselves and where we may never see an opportunity to do something to change them in the context of their criminogenic as it’s called, or criminal type of risk, are the ones that most probably have had some of the worst abuse experiences in their lives.

Peter McClellan When you add those experiences to, as you mentioned effective illiteracy, you’ve got people who are significantly almost disabled in their capacity to function.

Peter Severin Yes, and because they just simply didn’t go to school. You know, if they went to school, there was sort of sitting at the back. I’m painting this little bit black and white, but they were sitting sort of at the back of the class and didn’t really get the attention that they required and then by the time they come to corrective services, you know, they’re adults, they’re no longer young people.

Peter McClellan Yes. Now obviously people are in gaol for committing various offences. Do some prisoners offend once they’re in the prison system?

Peter Severin They do. So prisons obviously have unfortunately also dynamics that are undesirable. There’s tension between prisoners, there are rival gangs that have to be very carefully managed and kept separate from one another. There is tension that erupts in exercise yards or places where a lot of people are confined during certain periods of the day, and so we do see a degree of violence amongst prisoners which then needs to be intervened by staff. Fortunately, it’s not the characteristic of the system, I mean it’s a small part of what you have to deal with on a day-to-day basis, being involved with prison management, but it can be very serious. So there have been murders in prison. There have been very serious assaults in prison. There have been sexual assaults in prison and that has to be managed too.

Peter McClellan And if that happens, presumably you report it to the police, do you? And the police, then take up the usual processes and ultimately maybe a trial?

Peter Severin That’s right, so it is dealt with exactly the same way as it would be dealt with in the community. In our case, the case of the prison system, there are obviously also internal consequences. So as a person that’s been involved in a very serious or even in any kind of criminal activity might be isolated from the rest of the population for periods of time, and that’s not necessarily punishment. That is really just precaution.

Peter McClellan Peter, we’ve been talking generally about the system. Does the system operate in the same way for men and for women?

Peter Severin Largely yes. However, what is really important is to recognise that there are gender-specific needs and so, for example, the classification system for women is different because women pose different risks to men. Men can pose a very clear physical risk of escape or doing things that are sort of in breach of very obvious security requirements in a prison.

Women don’t have those risks. And again, without wanting to trivialise what is very complex, but largely one can say men are high risk, low needs and women are low risk, high needs. So women have a lot more needs because unfortunately there’s almost no woman in custody who has not gone through some form of trauma in their lives before. And that might be very deep-seated, but it’s there and it’s something that can obviously come to the surface and then cause a whole lot of very, very traumatic experiences. A lot of women are primary caregivers to their children and they can’t have their children with them. So dealing with matters of enhancing the ability of a woman to care for a child, dealing with drug and alcohol addiction in a very assertive way, having a living environment that is a lot more friendly and not as harsh and secured as a men’s environment has to be, are just some of the measures that are different for women. And of course, the number of women are very small and what the system has to always be very careful about is, it’s not that just because there are more men, it’s all done the way the men need it, and we just simply forget about the minority of the women prisoners, but that actually we give totally equal weight to the needs and requirements for women as we do for men.

And then of course there are other groups in custody who have very specific needs like Aboriginal and Torres Strait Islander people or First Nations people and younger offenders and older offenders who are aged and frail etc.

Peter McClellan I was going to ask you about this, but is the prison system set-up so that Aboriginal and Torres Strait Islander people are kept in different prisons or are they dispersed throughout the State? How is that organised?

Peter Severin They are dispersed throughout the State, so there was an approach taken about maybe 15 or 20 years ago where there were specialised Aboriginal prisons in western NSW. The problem was they were so isolated that only those Aboriginal and Torres Strait Islander prisoners who were healthy, who didn’t have any medical requirements that required immediate access to nursing care, were able to go there. What we also found is they were so far away from where they actually lived, for the prisoners that it almost was counterproductive —

Peter McClellan They lost family contact —

Peter Severin – because we want to make sure that the prisoners can maintain family contact, particularly Aboriginal and Torres Strait Islander families.

And so those places have been closed now, and there are very specific programs now run in prisons throughout the state for Aboriginal and Torres Strait Islander people.

Peter McClellan Yes, I’ve seen the program at Bathurst.

Peter Severin Yes.

Peter McClellan Which was very impressive. That was a few years ago I saw that, but I assume that similar programs exist in different gaols.

Peter Severin That’s right, so it’s about connecting with culture. It’s about using culturally appropriate and responsive mechanisms to get people together. Yarning circles and different ways of engaging in talking about things that then hopefully also have a therapeutic effect and just being more responsive to the requirements of the Aboriginal Torres Strait Islander culture.

Peter McClellan Does the system have particular officers who are responsible for developing and managing the programs for Aboriginal offenders?

Peter Severin Yes there are, but what we also try to do is obviously employ Aboriginal Torres Strait Islander people in mainstream roles. Now from base grade correctional officer right through to general manager, right through to director. Because it’s only when you can actually have those values lived and those requirements lived right throughout your organisation that you’ll make a difference. But now there are specific, particularly in community corrections and probation and parole system, there are specific Aboriginal Torres Strait Islander officers employed for the engagement with offenders, and we also have the same in the prison system.

Peter McClellan And women, how many gaols are there in which we find women prisoners?

Peter Severin I need to quickly count in my head. So there are two standalone women prisons in New South Wales. One is the Dillwynia women’s prison and the other one is the Silverwater prison. The other prisons have got sections for women. So there’s Clarence which is Grafton, Mid North Coast, South Coast. There’s a very small area in Bathurst. There’s a very small area in Junee and I think that’s about all at this point in time. And the reason is, that having specific ... Wellington has a woman’s area also in western NSW.

What you want to do is wherever you keep a woman for a longer period of time, not just over night to attend court, you want to create this environment that actually allows women to spend their time in an appropriate way in prison. I forgot, Broken Hill has also got a women’s section. So, in doing that, you want to also make sure that you can offer the whole suite of programs that women, that makes a difference and that’s resource intensive of course, now it’s spreading that over the whole state. So there are sections of big prison complexes for women, two dedicated women’s prisons that operate in their own right without any other type of person in there. And again, it’s going right through the state.

Peter McClellan It sounds from what you’ve said that there must be a significant number of psychologists and psychiatrists who are involved in helping prisoners. Are they all employed by the State, or are they private practitioners?

Peter Severin So the psychological service is a service of where the person is employed by Corrective Services NSW. All health services, psychiatric included, are the responsibility of a statutory authority under the Health Department, which is called Justice Health and the Forensic Mental Health Network. So they run the forensic mental health hospitals in New South Wales, mainly the one at Long Bay. And they also provide all health services in every prison except for the private prisons in New South Wales. And that includes psychiatric services. They may employ a psychiatrist who also has a private practice and it’s a mixed model like we would find in any kind of health system, but the services are available right across the State.

Peter McClellan Now, Peter, we’ve been talking about the prison system as such, but as we mentioned earlier on, the other very significant component of the Commissioner’s work is the supervision of people who’ve served a prison term and have been released into the community, on parole, or we’ll come to it, or who have been sentenced in some way which does not involve full time custody. But before we get to that, I think that corrections officers are also responsible for preparing assessment reports for judges who are called upon to sentence individuals. Can you just help us to understand what that’s all about?

Peter Severin So the pre-sentence report service, which is also a service that applies to those that apply for parole, is done by our community corrections staff, so by our probation and parole officers. And they look at the risk that a person poses, they look at their social circumstances, particularly for pre-sentence, so they talk about their family background, they talk about their social environment, they talk about education, employability, etc, etc. And it is there to give the judge or magistrate the opportunity to base their decision on penalty on the broadest possible scope of knowledge that they can have about an offender. So as we know that when you try someone, you have that particular allegation to consider. There are some submissions of course made by defence in relation to maybe mental health issues and so on and so forth but it’s not the whole social picture that you get through that process, so that’s where the pre-sentence report comes into play.

Peter Severin Likewise, when somebody wants to get out of prison, a parole report similar to the pre-sentence report, is completed for the Parole Authority, which then goes through exactly the same issues in terms of anything from the suitability of the accommodation that is proposed, right through to the types of programs and interventions that person might still need when he or she is released back into the community.

Peter McClellan I think you are now a member of the Parole Authority?

Peter Severin Yes.

Peter McClellan Having retired from the position of Commissioner for Corrective Services.

Peter McClellan It used to be that officers preparing reports for the court or for the Parole Authority were called parole officers, but I think that’s no longer the title.

Peter Severin That’s right.

Peter McClellan What are they called now?

Peter Severin They’re called Community Corrections Officers because it is broader than parole and also what we found with the term probation there (they used to be called probation and parole) is the term probation, politicians seem to change that whenever they do sentencing reform. So at the moment it is a community supervision order I think that used to be the old probation order. So Community Corrections is an all-encompassing term for officers who are responsible to supervise offenders in the community.

Peter McClellan So we should run through this in sequence. Someone’s been sentenced, they go into prison, they serve their term and the judge has imposed, let’s say a period of non-parole followed by period of parole. The decision as to whether or not to be released on parole is made by the Parole Authority, and as you say, that’s made with the help of a report from one of the Corrections Officers. And is any other information gathered from the prison system about that person apart from that report?

Peter Severin Yes, so if there are any particular psychological or psychiatric issues, there might be specialised reports also required for the Parole Authority to make their decision and any other information about their conduct in prison etc is also considered. You know, in some instances there are even submissions made by law enforcement agencies about particular issues that are relevant to their investigations or their work. I think what is also important for the listeners is to understand that there are really two ways of getting parole. If your sentence is three years or less, you get automatic parole, meaning that the Parole Authority doesn’t actually make a decision, unless there are very specific circumstances, to release a person.

The authority is responsible for anyone serving three years or more, and that’s where they actually make the decision to release a person to parole at the time, and they consider that at the time when a person becomes eligible for parole. There’s a statutory requirement to do that a certain period beforehand etc. And of course the intention, and I doubt the series will talk about that of a sentence, is to have a custodial component and a non-custodial component. Because if you simply just kick somebody out of prison without a period of time where the person is still subject to some pretty stringent supervision, but also support, you know the risk is much higher and we know that and every statistic that we look at confirms that community corrections or supervision in the community does work.

So the Authority would base its decision on a range of inputs, including inputs from the police, and the Authority (and again you talk about that elsewhere) has got a police officer in the group that actually makes the decision, couple of community members and a community corrections officer.

Peter McClellan So when the decision is made to allow a prisoner to leave the system and enter parole, I assume they’re assigned a Corrections Officer who will supervise their parole. Can you give us some idea of what that supervision might involve?

Peter Severin So every person who gets out on parole is subject to an assessment again, and that assessment does two things. One, it assesses using again, tools that are validated, it assesses the risk of reoffending. But we found some time ago that that in itself is not a very good way of determining supervision requirements. What we also need to do, and that’s what the system is doing now, is not only look at the likelihood of reoffending, but look at the impact that any possible reoffending might have. So it’s those two components that are assessed, likelihood and impact, and depending on the outcome of that assessment, the assigned officer will see the offender on a maybe bi-weekly basis, right through to only every six weeks. So if you’re very low risk and the possible impact of your defending is low, you may only see your parole officer a much less frequent time. If you are very high risk and you require a lot of supervision, you see the person a lot more frequently and you might also be required to engage in a whole range of other programs and services.

And what we also need to acknowledge is the use of electronics. For years now, and it’s getting increasingly more used, there are electronic monitoring means around where you don’t know what a person is doing, but you know where they are.

Peter McClellan They are required to wear something.

Peter Severin They have to wear an ankle bracelet basically or anklet and that sends a signal through GPS system that tracks the movement of a person. You can put curfews in, so if you would like to think there’s a sexual offender who’s now back in the community and you want don’t want that person to go anywhere near a school, you declare those places being out of bounds, so as soon as the person would walk into one of those out of bounds areas, the alarm would go off.

Peter McClellan Actually goes back with an alarm.

Peter Severin And yes, an alarm goes off. Not one that anybody hears, but back at base. Yes, of course, and then contact is made with the offender because sometimes it’s just inadvertently that something happens, but right through to somebody trying to remove their ankle bracelet.

Peter McClellan How many people now would there be in the community wearing an anklet?

Peter Severin The number is quite high. It would be just shy of 500, maybe something like that.

Peter McClellan So there’s someone sitting at a desk somewhere in Sydney with multiple screens, capable of raising an alarm.

Peter Severin It’s a centre, yes. So it’s a monitoring centre, and it’s also being used in reverse for domestic violence victims where actually the alarm goes off if the offender comes too close to that person, so they obviously don’t wear an ankle bracelet, but they have a little device that they can put in their handbag or wear on their belt and that triggers an alarm if the person comes within a certain perimeter.

Peter McClellan Does that go back to this same base. And then what?

Peter Severin Same base yes. Police might be notified. Yep, or the offender might be called, and says can you please turn around straight away, walk in a different direction.

Peter McClellan And all this has been developed in just recent years?

Peter Severin The technology has been around for quite a while, I’d say about 25 years or so, but it’s getting more sophisticated. I mean really right through to the point where the technology today, it’s not being used like that in New South Wales at the moment, but no doubt will be at some stage. It can actually measure if you start drinking alcohol or if you’ve taken drugs because of the …your body actually, the sweat and stuff, yes. So if you start drinking beer and you’re not allowed to—

Peter McClellan – have alcohol, an alarm goes off.

Peter Severin The alarm goes off. Yeah, so that’s not being used here at this point in time but it’s technically totally possible.

Peter McClellan That’s interesting. Peter, can we now look at the different forms of sentence which can be imposed which allow a person to serve their sentence in the community? I think we have now in New South Wales intensive corrections orders, community corrections orders, and conditional release orders. Now, I think Corrective Services officers have a role to play in relation to each of those types of sentence. Can you help us to understand that?

Peter Severin So the intensive corrections order was legislated quite a while ago, but then it was amended to eliminate what was called at the time, suspended sentences which were literally sentences that courts imposed and then they were fully suspended. Meaning that the person was not subject to any supervision, didn’t have to go to prison unless they reoffended, in which case they would have had to go back to prison or to prison to serve that suspended sentence. And it was a matter dealt with by the courts. So instead of having a suspended sentence which was seen by the government of the day as being a not very effective intervention and not really being as effective in the response to crime, the then intensive corrections orders were amended and courts can now impose an intensive corrections order instead of a suspended sentence. Meaning again that the person is not required to go to prison, but is subject to supervision by corrective services through conditions that are imposed by the courts.

Peter McClellan They can be fairly strict conditions.

Peter Severin There can be very strict conditions, they can be curfews, they can be high, they can even be electronic monitoring, obviously there can be conditions that prevent a person from consuming alcohol or drugs.

Peter McClellan And it can include detention in the home.

Peter Severin Absolutely yes. So curfews, so it can mean that you’re not allowed to leave your home between the hours of X and Y. It obviously can also have requirements to undergo certain assessments and be involved in treatment, and it can involve the requirement to stay away from any victim that you might have had in the past, so it’s a whole catalogue.

Peter McClellan And Corrective Services officers monitor and supervise that person’s behaviour.

Peter Severin That’s correct, yes.

Peter McClellan And if that person doesn’t do what they’re supposed to do, what can happen?

Peter Severin If it’s a minor infringement, it’s a warning from the community corrections officer. That warning can be an informal warning or a formal warning. Ultimately, it’s reported back to the Parole Authority, who’s the authority instead of the courts now, to then make decisions on possibly revoking the intensive corrections order, in which case the person has to go to prison.

So the authority, when I’m part of the meetings, we have cases where a person has reoffended or where the person has committed very serious infringements on the conditions of their order, they have failed to report regularly, they have moved place of residence without permission, they have, in any other way, breached the conditions of their order, in which case the authority then can revoke the corrections order. They can reinstate it after a period of time, which they do at times, and so it’s a dynamic instrument of control.

The community corrections order is a lower ranked order in terms of the restrictions. It’s a bit like classification system almost, so you’re not subject to the same level of restriction that you might be under an intensive corrections order, but nevertheless the Community Corrections staff still supervise a person on a community corrections order for the period of the order.

Peter McClellan When you say they’re not as strict, or the conditions aren’t as strict, can just give us some illustration?

Peter Severin Yes, for example on your community corrections order, you would not have an electronic monitoring requirement. You might still have prohibitions as additional conditions. You would also find that the person on such an order may not have the same level of need in the context of drug and alcohol dependency or significant gambling problems or other things. So it’s more about making sure that they comply with the requirements while they’re in the community, get some support as necessary, but in a far less intense way to the intensive corrections order.

And then the community release orders are really the old probation orders.

Peter McClellan They’re conditional release orders.

Peter Severin Conditional, sorry, conditional release orders are imposed by the courts, and as is the community corrections order, but the conditional release order is really the replacement of what traditionally was called the probation order where you were conditionally released, or placed in the community on an order that was subject to some level of supervision. In case of a breach, the court is responsible, not the Parole Authority.

Peter McClellan So the conditions on a conditional release order, can they be as severe as a community corrections order?

Peter Severin They would generally not be, but there can be certainly conditions of having to participate in certain rehabilitation programs. There could be conditions that relate to not associating with co-offenders. You could restrict somebody from accessing certain parts of the town, the city, for example, so exclusion zones. Now, if we know that a victim lives in a particular local government area, the court may then impose, and that would be done on the recommendation, or not recommendation, but on the assessment through the pre-sentence report.

Peter McClellan Through the corrections officer again. And you’re saying conditional release orders, if there’s a breach, it goes back to the court.

Peter Severin The court.

Peter McClellan And the court may or may not decide to impose a full-time custody sentence.

Peter Severin That’s correct.

Peter McClellan What about serious breaches of intensive correction orders, serious breaches of those orders, can that end up with the person placed into full-time custody?

Peter Severin Absolutely. So the Parole Authority is the authority dealing with that and if they are revoked, they, the person, has to go into custody and serve the time on their order. The Parole Authority has the ability to let somebody out earlier, so sometimes what the Parole Authority has been doing is sending somebody back to prison for a period of time, like a few months just to say, hey, be aware that you are treading on very thin ice.

Peter McClellan You’re in jeopardy.

Peter Severin Yeah, that’s right. And of course, if the Parole Authority revokes an order to, for want of better words, appeal that in which case it goes to an open session, which one of the judges presides over and the members are there and the offender could be legally represented and participates via video conferencing and has a direct engagement with the authority through that way.

Peter McClellan Peter, how many corrections officers are there in New South Wales?

Peter Severin The numbers are obviously fluctuating, but there would be in excess of 6000 plus about another sort of two and a half to 3000 community corrections officers. So you’re looking at a sizeable organisation.

Peter McClellan About 10,000 people

Peter Severin Yes, when I left we had 10,800 and that was at the time where all the corporate services and a lot of policy work was actually done by the department.

Peter McClellan They’re separate from them.

Peter Severin Separate, where previously before the department became a sort of a mega department, all of those services were provided in house from when Corrective Services was standalone until 2009, actually was later than that. And so yes, it’s a sizable organisation.

Peter McClellan Is that 10,800 include the psychologists and psychiatrists?

Peter Severin Yes, not the psychiatrists. They are part of Justice Health but the Corrective Services psychologists would be part of that.

Peter McClellan Right, psychologists, which includes the counsellors. 

Peter Severin Yes.

Peter McClellan Yeah, those endeavouring to help prisoners to come to terms with their position in life.

Peter, thank you for joining us this morning. I’m sure everyone listening to this podcast will find what you’ve had to say very interesting indeed. The prison system, as you rightly pointed out, is a bit of a mystery to most people, and hopefully we can have lifted some of that mist this morning.

Peter Severin Thank you and I always like to say and that was certainly my philosophy that we are not out of sight out of mind. Now, the fact that institutions have walls around them and razor tape, should not mean that they’re not accountable and open for the community to know exactly what’s happening. So I always appreciate the opportunity to talk a little bit about it. Thank you.

Peter McClellan Thank you, Peter.

You have been listening to Mr Peter Severin who was the NSW Commissioner for Corrective Services. This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teachers’ guide to the podcast and further information about the Council is available from the Sentencing Council website. I’m Peter McClellan. Thank you for listening.

Peter McClellan Hello, welcome to the Sentencing Council’s podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora nation. We pay our respects to their Elders, past and present, and to all Aboriginal and Torres Strait Islander people listening today.

Today we have Professor Tracy Booth as our guest. Professor Booth is an expert, particularly in the areas of victims in crime, has written on the subject, and we’re going to talk to her today about some of the work she’s done and ask her to help us to understand the role of victims in the criminal justice process. Professor, welcome.

Tracey Booth Thank you, Peter.

Peter McClellan As I just mentioned, you’ve written in the area of victims in the criminal justice process.

Tracey Booth Yes

Peter McClellan Can you give us some idea of your work in that area? What have you done?

Tracey Booth Well, my interest in the area started from my interest in public confidence in legal processes, that’s what I’ve always been interested in, the legitimacy of processes. And when I became an academic, I started looking at this through the lens of crime victims and thinking about crime victims and their confidence in legal processes. And really, there were two, there were two broad aspects I could look at. There was the idea of looking at victims in the trial as witness and what the witness experience was or in the sentencing, at the sentencing stage of the matter, and that’s where I focused looking at victim participation in sentencing proceedings. Most generally, that’s by victim impact statement, that’s the most common tool for victim participation.

Peter McClellan We’ll come to that in a little while. As far as victims in the trial, you say you haven’t concentrated yourself in that area

Tracey Booth No.

Peter McClellan But others I think have written possibly in relation to that issue, haven’t they?

Tracey Booth Oh yes, yes. There’s been a lot of writing about victims in the trial and their experience. I think the most, the first thing to understand from a victim’s perspective is that they’re not part of I, they don’t have a formal role, they’re, they’re not a party, they’re not a quasi-party, they’re just a witness. And when I say just a witness, I think that’s how they often feel, that they’re just sort of pulled in for this one moment. So there’s this idea of being marginalised from the beginning.

And then the experience of being a witness, and there’s been a lot of research, particularly in sexual assault, child sexual matters about the challenges that victims face in giving evidence.

Peter McClellan Well, that’s a matter for another podcast.

Tracey Booth Yes.

Peter McClellan But if can we turn our attention to victims in the sentencing process, but I think the starting point, as you pointed out a moment ago, is to understand that the traditional structure of the common law criminal justice system has no formal role for the victim apart from giving evidence.

Tracey Booth No, that’s right, and that’s actually quite modern when we think about the history of criminal justice. I think the state formally took over prosecution in the 19th century when we started developing public prosecution and crown prosecutions. But for hundreds of years before that, the victims actually had quite an active role in the prosecution of matters, so it’s been, I guess the last 150 years, 170 years that increasingly, increasingly the way that we structure our matters, we call it an adversarial system where you have two parties, you have the Crown and you have the defendant. And the focus is really on the defendant because the nature of the matter and the victim is very much marginalised, or feel, a lot of people feel marginalised in this process.

Peter McClellan Why did that change occur? Why did we move to take as it were the victim out of the formal role in the criminal trial process?

Tracey Booth I think because, I think it’s changing sensibilities. The way I’ve always thought of it is we, as a community, we change the way that we approached matters so that fairness is really crucial in the modern criminal trial. This idea of fairness, and particularly fairness to the defendant, that, that has been the clear focus I think of criminal matters for the last 150 years. And as this idea of fairness has developed, so we have developed this idea of having a neutral forum, a neutral forum, this idea of objectivity, and that victims, before we had this change where the state took over, it was much more emotional, chaotic. It wasn’t about public interest necessarily, or community interests, it was much more focused on a particular victim and their interest. So I think it’s just been our changing sensibilities in the way that we view the law as a tool of social control, and the way that we view the law as being crucial to the way we dispense justice in criminal matters.

Peter McClellan And as far as victims are concerned, do they have a role to play in any sense in the decision, for example, whether or not to charge?

Tracey Booth In, in NSW?

Peter McClellan Yeah, yeah.

Tracey Booth Look, it’s, it’s, in terms of being able to charge from the police point of view, I think that I don’t really know, I don’t have the research, I haven’t done any research in the area. I don’t think they have a great deal of control or input in that particular process. When it comes to whether or not to prosecute, victims have been given more of role under the current prosecution guidelines, there is a consultation process. At the end of the day, it’s a matter for the DPP to decide whether or not a matter is going to be prosecuted, because there is this public interest to consider.

Peter McClellan Now I think in the 20th century, post war anyway or post the Second World War, some of the perspectives in relation to the role of victims in the criminal justice process started to change.

Tracey Booth Yes.

Peter McClellan Can you help us to understand that?

Tracey Booth Yes, it’s fascinating, isn’t it? Victims started becoming more visible, more visible and also being heard. I think it had a lot to do with the rise of feminism. Feminist activists in the 60s and 70s bringing a lot of issues to the forefront. Women as victims, particularly of domestic violence and sexual assaults.

But we also had the rise, I think, of victim activists. In Australia we had a lot of action, if you like, in South Australia during the 1970s. There had been a spate of rather horrible murders and the families of those victims were very vocal, became very vocal, about their marginalisation from the processes and the dissatisfaction that they felt.

So we had this, I think, so we have this political activism and then as we get into the 80s and 90s I think we can start to see change in sensibilities, so if we, if we ask ourselves, would we be comfortable if a judge during sentencing judgment talked about the offender and only the offender – didn’t mention the victim – how would we feel about that? And I think we would think that’s actually not right and that is changing sensibilities.

Peter McClellan And I think that those changes can be reflected in, of course, what happened in Australia and in NSW.

Tracey Booth Yes

Peter McClellan But you can see it on a world stage, can’t you? Through the United Nations?

Tracey Booth Oh that that’s exactly right, so from 1985 we’ve got the UN Declaration, then we have a declaration in the European Union and increasingly it’s become linked with this idea of human rights. So victims’ entitlements and legal processes has been linked to this idea that victims have rights. It’s more problematic in NSW where nobody has rights as such without a charter, so I tend to think of it as entitlements rather than rights, yes.

Peter McClellan Well, that’s the debate for another occasion

Tracey Booth It is indeed.

Peter McClellan And I think we can see this, well these thoughts, these changes in perspectives, reflected ultimately in legislation…

Tracey Booth Yes…

Peter McClellan …by way of giving an entitlement to a victim to speak to the court, at least in the sentencing process.

Tracey Booth That’s right.

Peter McClellan What was that change?

Tracey Booth Well, that’s victim impact statements and the Unsworth government in fact started talking about this in the 1980s, it was very keen to bring in this idea of victim impact statement because at that stage they were emerging in the United States, that’s where they started.

So there was actually a bill put up, might even have been passed, but it didn’t commence. So we didn’t get any legislation about victim impact statements until 1996 and that started in 1997. And the idea behind it was that victims would have an opportunity to tell the v court about the impact of the crime on them. So it was going to be in their words about the harm that they had suffered.

And what’s interesting there, when I say in their words, in NSW we didn’t have an agency and we still don’t have an agency that prepares victim impact statements. So in other jurisdictions, sometimes it’s the police, sometimes it’s victim support services, there’s lots of services that actually write them. But that’s not the case in New South Wales

Peter McClellan Well who writes them, who writes them here? The victim?

Tracey Booth Well, mostly victims. They write them often with assistance. So my research was looking at homicide offending, so I was looking at family victims who were writing about the deaths of loved ones. So groups like the Homicide Victim Support Group would provide assistance, but they always wanted it to be in the person’s own words.

I have seen victim impact statements written by social workers and submitted on behalf of the victim. That’s less common, but if you have victims who come from a non-English speaking background, I would imagine that’s quite a, um, it would be an easier way for them to express their feelings to the court. So in 1997 what we had were victim impact statements being submitted to the court in writing, setting out the impact of the harm. And look that was monumentous, that was huge. And there was a lot of debate about victim impact statements which we can put to one side for the moment.

One of the interesting things about the legislation was that these written victim impact statements were being tendered in the court, but that wasn’t, there were, there was a lot of pressure very early on for, to give victims the opportunity to speak in sentencing hearings.

Peter McClellan You mean, as opposed to having a statement tendered?

Tracey Booth Yes, so they would just simply have a written statement, the Crown prosecutor would tender it to the judge and often, well, most of the time, the judge wouldn’t read that statement in front of them, the judge would pop it down with the other materials that the judge had and that would be that. And victims, a number of victims said to me I don’t even know whether he or she read it and what they did and if they referred to it in the judgment afterwards then they knew. But in 2003 there was a significant reform and that was to allow oral victim impact statements.

Peter McClellan So from 2003 there would also be a written statement as well as oral material?

Tracey Booth Yes. Yes.

Peter McClellan And in 2003, what were the types of cases where a victim’s impact statement and oral evidence could be provided?

Tracey Booth Victim impact statements could be submitted in matters that involve violence, very, very broadly, matters that involve violence.

Peter McClellan In the Supreme Court?

Tracey Booth In the Supreme Court

Peter McClellan District Court?

Tracey Booth District Court

Peter McClellan And the Local Court?

Tracey Booth There… I’m a little fuzzy on what happened, what was happening around that time in the Local Court, there weren’t many victim impact statements because you didn’t have many of those matters in, in the Court because they were indictable matters causing violence. So there are a lot of victims that were excluded. So NSW is one of the few Australian jurisdictions that does confine, did confine victim impact statements in that way.

Peter McClellan So what about homicide cases, when there’s been a death? Were victim impact statements being provided to the court from 2003?

Tracey Booth Yes, from 1997. So when we had the, when we had the legislation that came in for victim impact statements, there were two classes of victims, so there were primary victims who had been directly affected by the crime, but there was also the family victims. And in fact, this had come up, it was a late amendment and I’ve forgotten the details, but it’s interesting when you look at the legislation at that time, because it said that a primary victim could submit a victim impact statement and the court, the court could, might accept that, I’ve forgotten the language, but in terms of a family victim the court had to accept it. It was “must”, the court must accept that victim impact statement.

Peter McClellan When you say accept, do you mean …?

Tracey Booth Take it.

Peter McClellan Take it to be true or just accept it.

Tracey Booth Accept it, accept it as part of the evidence and loosely as part of the evidence. A victim impact statement wasn’t considered evidence in a homicide matter, it was considered an entitlement a victim had to submit that statement. And this is what became very tricky under the Act, so the Act was never very clear about what the purpose of the victim impact statement was.

Peter McClellan In relation to homicide?

Tracey Booth In relation to homicide. And whether or not it should be taken into account, and it’s an interesting expression “taken into account” because it’s hard to know what that actually means. Does that mean that you take it into account and if somebody has been really, is really badly distressed, that it increases the penalty?

So one of the issues was – and it came before the court very early on, it was one of the very first cases, Previtera – and Justice Hunt was sitting on that particular case, and in his view, he, he agreed he had to take the victim impact statement from the victim’s son, but he would not take it into account in sentencing.

Peter McClellan And that became the view of the court for quite some time.

Tracey Booth It did, it did.

Peter McClellan I think the justification for that view was that if you bring in victim’s impact statement in a homicide case, you run the risk of placing a greater value on one life as opposed to another depending upon the nature of the evidence as to the impact upon the surviving family members.

Tracey Booth That’s exactly right, and it’s about valuing.

Peter McClellan Yeah.

Tracey Booth It’s about valuing the lives of the deceased and valuing the lives of those that remain and there was a lot of academic critique, mine included, because that’s intensely problematic. On the other hand, jurisdictions where they do do that, where they will take a victim impact statement from a family victim into account, they argue that it represents the totality of the harm that’s been caused.

Peter McClellan Well, as far as crimes other than homicide are concerned, what could the court do with the victim impact statement or the evidence that the victim might give in the court?

Tracey Booth Well, that’s developed, I think, as time has gone on. From what I could see, the initial – and I’m thinking now mostly about cases involving sexual assault because one of the other things that I think is important to note, that victim impact statements tend to be submitted in cases where the offence is more serious, so you’re more than likely to get victim impact statements in homicide, sexual assault cases, less so in child abuse, just because of the nature of the offending, armed rob cases.

So when I talk about how victim impact statements have been taken into account, I’m primarily drawing from those cases, but it’s interesting to watch how the law or the courts’ approach has changed. So in the beginning, in the early years, victim statements would be submitted from primary victims and the court would acknowledge the victim and acknowledge the harm that’s been caused and say something like, “and that’s the harm that we would anticipate would be caused by that offence.” So there’s this idea and again, it was Justice Hunt and a couple of other judges in those early years sort of talking about the kind of harm that you would expect in a sexual assault matter and also a child sexual – one of them was a child sexual assault matter. The questions have changed a bit over the over the last, I suppose, 15 years and in terms of what victim impact statements can be evidence for, there is an issue about whether or not victim impact statements can be evidence of aggravating factors under section 21A of the Sentencing Act, and that’s much more problematic because instead of, because then the victim impact statement is no longer a description of harm that somebody has suffered, but it becomes a tool of evidence that has the potential to impact on the penalty.

Peter McClellan And would normally be required to be proved beyond reasonable doubt.

Tracey Booth That’s right, and that has been far more problematic, especially because in NSW they’re not sworn statements, and that has been problematic. There has been, the Court of Appeal has looked at this matter in recent years and it does put the onus now on the defence counsel. If defence counsel want to challenge parts of that victim impact statement if they don’t want it taken into account they must bring it up at the trial. So there is, there is tension there.

Peter McClellan The door’s, the door’s been opened, but there’s a resolution that’s presumably working in a practical sense fairly well.

Tracey Booth I think, I think, I think it is. There’s a lot of discussion outside the court between the prosecution and the defence about victim impact statements, and I think that’s a really important discussion to have because the last thing you want is in the courtroom to have a situation where the defence is objecting and then, and all of a sudden, the victim is completely marginalised from that process, because they have no control over their statement.

Peter McClellan Now I think there’s some labels that are given to the functions of victim impact statements. I think they’re known as instrumental functions or expressive functions.

Tracey Booth Yes

Peter McClellan Can you help us to understand those two concepts?

Tracey Booth So the instrumental function of a victim impact statement is the function it has in the sentencing hearing – to serve the goals, I guess, of criminal justice and the most obvious one is helping the court determine the seriousness of the offence.

So, when the court looks at the seriousness of the offence, takes into account the culpability of the defendant and also the harm that’s been caused, so the theory is, well the victim impact statement provides evidence of the harm that’s been caused, so it furthers this instrumental purpose of criminal justice.

Another argument is that victim impact statements also contribute to rehabilitation as a purpose of sentencing. This is, there is less evidence to satisfy this, but again, the theory is that a defendant, being confronted by the harm that they have caused in this victim impact statement, will be affected. There will be some sort of transformative event, and they will desist from offending in the future, or they might apologise, or there might be some sort of response. That’s more controversial. There’s no evidence to support that. I mean, certainly I’m sure it could happen in individual situations, whether or not it is a purpose, I don’t know. The third instrumental purpose, I think, is more interesting and this is this idea of educating judiciary, educating lawyers and educating the community.

And Rita Shackel has written about this in terms of child sexual abuse and this idea that victim impact statements have enabled us to understand, perhaps, the nature of the impact, why it takes so long to report, what the far reaching or the long-term consequences of such offending are. So they’re the three significant, what I would think, instrumental purposes of a victim impact statement.  

The expressive purpose of a victim impact statement is giving victims a chance to be heard, or it’s twofold – it’s to speak, it’s to actually stand up and be part of this process and say “this is what happened to me”. But also to be heard. So that is the response that they get. So that might be through the judgment – the judge acknowledges what they have said, quotes from their statement, looks at them as they deliver the judgement, or – and there were some researchers who thought that perhaps they might get a response from the defendant as well. So there’s this idea of voice and how important that is for people that have been marginalised and not had the opportunity.

Peter McClellan Now, as I mentioned earlier on you’ve written extensively in this area. But you for some years were a member of the Sentencing Council.

Tracey Booth Yes I was.

Peter McClellan And I think when you were a member of the Council, you became involved in a major report that the Council prepared …

Tracey Booth Yes we did.

Peter McClellan … in relation to sentencing procedures and particularly victim impact statements.

Tracey Booth That’s right.

Peter McClellan Can you help us to understand what that work was all about?

Tracey Booth Oh we were looking at victim, the victim participation in sentencing. And that whole idea of what does it mean to participate?

And primarily, of course, it is through victim impact statements, but we also considered the idea of restorative justice. Victim impact statements are said to be a restorative tool. And to be a restorative tool, that means that you’ve, there’s space for dialogue, for empowerment in these processes. So what we did in the Council was that we reviewed the legislation looking at victim impact statements. We reviewed the history of that legislation, how it had come to be the way that it was.

It’s ’s really, one of the things about the Sentencing Council that is so fantastic is that we call for submissions. So you have the law on paper but it’s so important to know how it operates and that way you can identify gaps. So, for example, you know, these days you can have victim impact statements in Local Courts, but Local Courts are differently run to say senior courts. They’re much busier. So how do we fit victim impact statements in? How do we provide victims with the support that they need to also exercise their entitlement in the Local Court? So as the Sentencing Council that’s very much the sort of thing that we look at. We look at the law, we get a lot of information about how the law is operating. We bring expertise from lawyers and other participants in criminal justice to think about how we can improve things, how we can make it a better system.

Peter McClellan And I think the report did make a number of recommendations.

Tracey Booth Yes it did.

Peter McClellan And did it lead to change?

Tracey Booth Yes it did. It led to change, legislative change and I understand that there was also going to be some policy change, especially around the Local Court, but I’m not sure how much that progressed. That was one of the things we really emphasised in the report.

Peter McClellan Those changes were enacted … when?

Tracey Booth Our report was submitted to the Attorney in 2018 and I think the legislative changes, well I think they started almost immediately. Things like, before that, in a matter where the defendant had been found not guilty by reason of mental illness, a victim wasn’t able to submit a victim impact statement because there had been no conviction.

But that was very difficult for victims, because even if there hadn’t been a conviction, they had still been harmed by a criminal act. So that was one of the big changes.

Peter McClellan So can we try and summarise then where the law now sits in relation to victim impact statements. In a homicide case where someone’s been killed, a victim impact statement can be tendered on behalf of members of the family.

Tracey Booth Yes, it’s a family victim. It’s usually individual. You don’t usually have, sort of, a group victim impact statement, it will be individual.

Peter McClellan So there may be more than one member of the family

Tracey Booth Often yes.

Peter McClellan Who gives an oral statement to the court.

Tracey Booth Many, many will read their own statement. Or they’ll have a support person that will read it for them. That’s very, very common.

Peter McClellan And when sentencing, what can the judge now do with that statement?

Tracey Booth OK, so the law has changed since Previtera that I was talking about before. The courts didn’t change the law. The government changed the law.

So, as I was saying earlier, in a homicide case, courts did not take a victim impact statement into account because they thought that that would be prejudicial and turn into an unfortunate case of having to value victims and family survivors. But the government passed new legislation, I think it might have been 2017, 2016 and under this legislation, the courts can take a victim impact statement into account in a homicide matter if the prosecution makes an application to do so and it’s taken into account as an aspect of harm to, harm caused to the community.

Peter McClellan And then what about other crimes, not homicide, but crimes of violence? What can the court do with a victim’s impact statement and statement from the, the oral statement from the victim. What can the court now do with those?

Tracey Booth The victim, the judge can take it into account, it can actually be evidence. So as I was saying earlier, we have aggravating factors in sentencing that can increase, that potentially can increase the penalty that’s being imposed and so victim impact statements in certain circumstances can be evidence of an aggravating factor. Um, it is difficult for the court because the veracity of the evidence is untested. So what …

Peter McClellan So there’s no cross examination of a victim on this aspect?

Tracey Booth No, there is no, there is no cross examination. I’ve never seen a cross examination. I think it would be a foolhardy defence lawyer who did that.

But I think I think more and more what’s happening is that the prosecution if they want to establish a particular harm, they’ll do so separately, and that is the way to do that, because if you challenge a victim impact statement, and this is the problem for victims, that they don’t have any control over it, once they’ve written and tendered it, it’s up to the court as to which parts will go in, which parts they’ll take into account. And that’s very difficult, I think, for victims.

Peter McClellan And what about financial crimes? Say a crime of fraud where someone has lost a significant sum of money to a fraudulent enterprise. Victim impact statements – can they be provided in those circumstances?

Tracey Booth No, no. And that’s one of the interesting things about NSW is that the cohort of victims, if you like, or the cohort of crimes where you can have a victim impact statement is narrow and it’s narrowed to violence, whereas in other jurisdictions that does include finance.

Peter McClellan Now another very significant topic which I think you’ve written about and certainly have an interest in is the question of trauma-informed courts. First of all, help us to understand what the concept means. What’s a trauma-informed court?

Tracey Booth Trauma-informed, to me, is about an empathic response to the people who come before you, and it’s important to remember that people that have been victimised, particularly those who have been victimised by child sexual abuse, those victims of sexual assaults and also family victims in homicide matters – these are people that have gone through an extraordinary experience, they’ve suffered considerable damage that lingers. It’s not, it’s not something for a lot of people that they can manage well, and as a result, giving evidence is difficult, speaking is difficult, just articulating ideas, is difficult. And then also they might have an odd effect. Some people are very angry, still very, very angry or grief stricken and it’s difficult, it’s difficult to respond to anger and to grief, and it’s also difficult to manage it in a courtroom. So trauma-informed is understanding where the person before you is coming from and how to respond to it. I can give a very simple example. When I was interviewing family victims, one victim was telling me that she came to the court and she read her victim impact statement and I read it subsequently and it was devastating. It was …

Peter McClellan What was the nature of the crime?

Tracey Booth It was a murder. It was about her son and it was a terribly sad victim impact statement. It was terribly sad. But she said that she was made to stand up to read it. She stood beside the bar table, beside the Crown Prosecutor and she was shaking, she found it really difficult to hold the victim impact statement. And then she said, when she finished, there was no thank you, there was no acknowledgement, the court continued proceeding and she turned round to walk back to the public space at the back of the courtroom.

And I think if you have a trauma-informed court, my response would be, well, first of all, somebody should be comfortable when they’re doing something as difficult as that, so I think they should be given a seat, somewhere to put their papers, and secondly think it’s important to acknowledge the enormity of what’s happened. I understand the limitations of the court as it can be simple as saying “thank you Tracey for telling us that” and then waiting until that person goes back and sits down before you continue. So that’s my understanding of trauma-informed.

Peter McClellan There’s been a lot of work done by you and others in relation to this question of trauma. I have the sense that the general community doesn’t really understand what we’re talking about when we talk about the consequences of a traumatic event upon someone’s experience and capacity to talk about it. Is that right?

Tracey Booth I think that is right because I think most of us are very fortunate that we don’t have those experiences. We don’t experience it, and even if we do, people experience things so differently.

And it’s, and I think, with something like a victim impact statement, it can, it’s very difficult for victims when they give it, because I think often, often a lot of discourse – is that the word – a lot of conversations that we have is about the cathartic effect of a victim impact statement, about the closure that it brings. But for most victims, that’s just not the case, it really isn’t, and I and I worry that victims’ expectations aren’t managed well because so many victims I’ve spoken to, in fact, found it a really disheartening experience and some found it traumatic in itself.

Peter McClellan What you’re talking about carries over, of course, to the capacity of victims, particularly in sexual assault trials, to give an account of what happened to them in the, when the crime was being committed.

Have you done any work in that area and the capacity of people to provide an accurate recollection of all the detail of a traumatic event?

Tracey Booth No, no I haven’t done any work in that area, but I’m certainly familiar with that research. And it’s very common that recollection is not as clear as it could be, and often that’s one of the problems as a witness, then the cross examination focuses on inconsistencies and discrepancies.

Peter McClellan I’ve written about this myself a lot, and of course I wrote about it in the Royal Commission report, but the evidence is pretty clear that people remember the essential elements of a traumatic event but may get the peripheral elements wrong. And it’s the classic cross examination technique to head for the peripheral detail and try and trip the witness up about the periphery and then be able to say well, therefore you shouldn’t accept the primary evidence. It’s a difficult area.

Tracey Booth It’s a very difficult area and I think it’s interesting that I, we can see a change in sensibilities in our community now, the way we respond to victims of sexual violence and child sexual assault, that people are starting to say, I believe you. I don’t know that that’s gone over into courtrooms necessarily, because cross examination is what it is, and the adversarial system is what it is, that’s how we test evidence. But it’s not a good way to test evidence in child sexual assault cases. All sexual assault cases.

Peter McClellan No. Have you done work in relation to other forms of justice systems around the world?

Tracey Booth I did some work comparing in terms of the impact statements. I did some work comparing civil jurisdictions with common law jurisdictions, so I did some work in the Netherlands.

Peter McClellan When you say civil jurisdictions, some people may think of inquisitorial jurisdictions?

Tracey Booth Yes, so a civil jurisdiction is, well, the civil jurisdiction is one that doesn’t have the same format that we do. So if you’re thinking about a sentencing hearing and the trial as being separate, the way we have in a common law jurisdiction, it’s not. In a civil jurisdiction such as the Netherlands, it’s held at the same time. The whole matter is determined at the same time. And that has really significant implications when you’re thinking about a victim impact statement coming in before somebody’s convicted and what that does to presumptions. It’s a different way of doing things. And there are different, the evidence, rules of evidence in a civil jurisdiction are different. It’s a matter for the court to do a lot of the investigating. It’s, it’s not...

Peter McClellan The judge has an active role.

Tracey Booth The judge has a very active role. It’s different to an adversarial process. So I did do some work with some researchers in the Netherlands. We wanted to compare what happened in the courtroom to victim impact statements, because one of the things that I found in my research was that, yes, victims can speak in NSW courtrooms, but they’re not necessarily heard in the sense that they don’t get a lot of response.

They, the judge certainly will, most of the time, will acknowledge them in the sentencing judgment and that’s the extent of it. But nothing in the courtroom itself. Whereas in the Netherlands, which is the civil jurisdiction, it was really very different. The victim … so there was a big observation study that my colleagues had done there and we were looking at situations where the, so a victim would read their statement and then the judge would say to the defendant, “Well, what do you have to say about that? What’s your view on this?”. And then, also, sometimes the judge would talk about it so …

Peter McClellan A dialogue evolves.

Tracey Booth Creating a dialogue which on the one, from the one point of view is great. You want to have a dialogue but you don’t know what the defendant’s going to say, so that can be dangerous as well.

Peter McClellan And I suppose you don’t offer a view as to which system might be better or worse.

Tracey Booth Look, I think I prefer the adversarial system, probably because I’m very familiar with it, but I would like to see changes in the way we view the sentencing hearing. I think of it as a forum and I do think of it as an opportunity for a dialogue, even if it’s just a few comments from the judge, something, just something a little bit more connecting, more connection I think.

Peter McClellan Responsive to the circumstances of the case.

Tracey Booth I think so, just more empathy.

Peter McClellan It takes us back to the trauma-informed judge, I suppose.

Tracey Booth I think so. I think so and just being aware of what’s going on. I mean judges are, I think, judges are fairly savvy about what’s going on. But thinking about the consequences of that and how judges can make things easier.

Peter McClellan Professor, it’s been a fascinating discussion this afternoon. Thank you very much for joining us on this occasion. We look forward to chatting with you, maybe on a future occasion.

Tracey Booth Thanks Peter, it was great.

Peter McClellan Thank you very much.

Peter McClellan You have been listening to Professor Tracey Booth, who has researched and published significantly in the area of victims of crime and in particular victims’ impact statements.

This podcast is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, Chair of the Council, thank you for listening.

Peter McClellan Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora nation. We pay our respects to their elders, past and present, and to all Aboriginal and Torres Strait Islander people listening today.

Today our guest today is Justice Dina Yehia, a judge of the Supreme Court. She was previously a judge of the District Court, and in that role was responsible for creating the Walama List. Her Honour will speak to us today about the creation of the list and its function in relation to the sentencing of Indigenous offenders. Welcome Judge.

Justice Yehia Thank you and thank you for having me.

Peter McClellan Judge, I think you started life in the law as it were working for the Aboriginal Legal Service.

Justice Yehia Yes, for the Western Aboriginal Legal Service based in Dubbo and servicing a number of towns in Western NSW.

Peter McClellan And you were a solicitor in those days?

Justice Yehia I was, yes. That was my first job. I was admitted and went out West and commenced working as a solicitor.

Peter McClellan How long were you out west?

Justice Yehia Seven years.

Peter McClellan That’s quite a time. Where were you based?

Justice Yehia I was based in Dubbo but we appeared in courts in Broken Hill, Bourke, Wilcannia, Nyngan and all the satellite courts around Dubbo.

Peter McClellan Local Court and District Court?

Justice Yehia Local Court and District Court and occasionally instructed counsel in the Supreme Court.

Peter McClellan And then I think after your time out west, as it were, you joined the Public Defenders’ office.

Justice Yehia So I came back to Sydney and worked for Legal Aid for a while and was a Solicitor Advocate with Legal Aid, and then went to the Bar and then joined the Public Defenders’ office. Yes.

Peter McClellan And when was that, when, when did you join them?

Justice Yehia So I joined the Public Defenders in 1999, came back from Western NSW in 1996 and then joined the Public Defenders in 1999. So I had three years with Legal Aid.

Peter McClellan And I think after a time you became Deputy Senior Public Defender.

Justice Yehia That’s right.

Peter McClellan Just tell us, what’s the Public Defenders’ office? What does that do?

Justice Yehia So the Public Defenders are a group of barristers who are briefed to appear in trials involving serious criminal offences or allegations, usually instructed by Legal Aid or the Aboriginal Legal Service and increasingly appearing in the Supreme Court, either in the appellate jurisdiction or in trials.

Peter McClellan I think in 2013 or 2014 you were appointed as a judge of the District Court.

Justice Yehia Yes, 2014 in May.

Peter McClellan But not long before that appointment you appeared in the High Court in a very important case, in relation to Aboriginal offenders.

Justice Yehia Yes indeed.

Peter McClellan Yes, it’s known as the Bugmy decision.

Justice Yehia Correct.

Peter McClellan Could you tell us a little bit about that case?

Justice Yehia Yes, of course. So that was an appeal against the NSW Court of Criminal Appeal decision in the case of Bugmy and what had happened was Mr Bugmy had been sentenced in the District Court in respect of a number of offences. They were committed against corrective service officers at Broken Hill jail and he received a term of imprisonment.

The Crown appealed against the inadequacy of sentence and that appeal was upheld in the Court of Criminal Appeal and during the course of the judgment it was stated that the weight to be afforded a person’s background of disadvantage and deprivation diminishes over time, and particularly where that person has a criminal record.

So that point was taken to the High Court. That was one of the grounds that demonstrated error. But we also got special leave on a number of other grounds, including whether sentencing judges should take into account the systemic factors that relate to deprivation and disadvantage of Indigenous offenders as a result of colonisation. So that was the bigger point.

The other, the narrower point … we lost the broader point and got up on the narrower point and Mr Bugmy, the matter was then remitted to the Court of Criminal Appeal.

Peter McClellan And they reconsidered and imposed a different sentence.

Justice Yehia That’s right, I think, I didn’t appear when the matter was remitted to the Court of Criminal Appeal, but the appeal against the inadequacy of sentence was dismissed. So his original sentence stood.

Peter McClellan Oh the original sentence, oh I see. Well, after what, nine years in the District Court or thereabouts?

Justice Yehia Eight yes.

Peter McClellan Eight. You were recently appointed as a judge of the Supreme Court.

But before you came to the Supreme Court, you created a very significant development or were responsible for creating a significant development in the District Court, which I think has now been given the name of the Walama List. Can you tell us about the origins of what’s known as the Walama List?

Justice Yehia Yes, of course. So the Walama List is essentially an Indigenous sentencing list in the District Court and the word Walama is a Dharug word that means coming back or returning, and in the context of the list, it is about coming back to a healthy crime free life, coming back to community and culture.

Peter McClellan What gave you the idea of developing such an approach to the sentencing of Aboriginal and Torres Strait Islander people?

Justice Yehia Well, I think I, as you raised in the in the beginning, I started my career at the Western Aboriginal Legal Service 32 years ago and worked out there for seven years and appeared for thousands of Aboriginal people.

When I came back to Sydney, both at Legal Aid and as a Public Defender, I continued to appear for Aboriginal people and over 32 years I’ve seen the same issues come up. The same underlying issues. And generally speaking, this has not been the case in all matters, but generally speaking, the approach to sentencing has not really achieved the goals of reducing offending, assisting people with the supports they need to live functional lives. So for me it was witnessing this happen at very close range for nearly 32 years and seeing, well reading the literature and seeing how other approaches to sentencing in therapeutic courts seem to have a better success rate. So that was the motivating factor really.

Peter McClellan When you say therapeutic courts, do you have in mind the Drug Court?

Justice Yehia I have in mind the Drug Court, I have in mind the county Koori Court, I have in mind some of the Maori courts in New Zealand. And just the feedback from the participants, the Elders and the community members about that way of engaging with Indigenous offenders and their communities is very powerful. I mean a very important objective is of course, reducing reoffending and just giving these offenders these supports so that they can live functional lives.

But another objective of the Walama List is to have a meaningful and positive engagement with Aboriginal communities so that you can build relationships of respect as opposed to having Aboriginal people and communities see the courts as…

Peter McClellan Alien?

Justice Yehia Alien and part of the process that alienates communities and individuals. And you know the history of Aboriginal people’s contact with the courts has not been a happy history.

So as I say, the list is an Indigenous sentencing list. There are eligibility criteria. So the participant must plead guilty. They must, of course be Aboriginal or Torres Strait Islander. Some offences are excluded like sexual assaults. Crimes of violence are not excluded except for the more serious crimes of violence, so for instance manslaughter, inflicting grievous bodily harm with intent to do so. They’re excluded, but everything else is not.

Peter McClellan And a crime with a weapon, is that excluded?

Justice Yehia No, it’s included. That’s right, that’s right, so that’s included. I mean the DPP retain a right to make an application to exclude matters. That has not happened, but they can make an application to exclude matters if for instance, if the offence is considered too serious or if the participant has a very serious criminal history for violent offending, for example, but that has not happened to date.

Peter McClellan I think you developed the idea of the Walama List out of an original intention to see if you could get an Aboriginal Torres Strait Islander division of the District Court. That didn’t happen, but the list is intended to fulfil a similar function?

Justice Yehia Yes, that’s right. That’s true. The list is capped at 50 just because of the resource issues, so we need more resources before we could expand it to greater numbers. But the Walama List is very much based on the initial proposal, which was for a Walama Court with legislation and resourcing. So it involves…

Peter McClellan Stop you for a second. You say there’s a resource issue. There’s one judge responsible for the list correct? Sitting how often?

Justice Yehia So it’s one week per month.

Peter McClellan Right so and it’s the same judge.

Justice Yehia It is the same judge unless they go on leave and then we do have a second judge who is then able to preside whilst the Walama List judge is on leave.

Peter McClellan And the offenders who can come into the list, do they have to live within a certain physical area of the State?

Justice Yehia Well, the pilot is in Sydney. It’s based in Sydney at the Downing Centre, so the catchment area is really defined by any matters that are listed that are committed for sentence from Sydney, Parramatta, Penrith and Campbelltown.

Peter McClellan Well then tell us how does it operate?

Justice Yehia So initially there are couple of mentions and those preliminary mentions are just to make sure that the eligibility criteria has been satisfied.

Peter McClellan Just go back a step. Someone is charged and they’re brought to the court. They won’t go immediately into the Walama List, will they?

Justice Yehia No. So if they’re charged, of course they appear before the Local Court. If they enter a plea of guilty, they’re committed for sentence to the District Court. They might be committed for trial to the District Court and then once their matter comes before the District Court, they change their plea to a plea of guilty. So, by whichever mechanism, they come before the District Court.

Peter McClellan What about a matter that would normally have been sentenced in the Local Court? That can’t get into the list? It has to be a matter committed to the District Court.

Justice Yehia Correct, so once committed to the District Court for sentence or for trial but then there’s a change of plea, the matter then is listed for mention in the general list. There is then an application for referral to the Walama List. Generally speaking, that’s by consent. Once that’s done, and as long as there is availability in the Walama List because it’s capped at 50 people, the matter is then listed for first mention before the Walama List on the first Monday of that list.

And on that occasion the judge ensures that the eligibility criteria are met, so it’s a plea of guilty, the person is an Aboriginal or Torres Strait Islander person, it’s not one of the offences that are excluded and the participant consents. And then there may be in that first mention the tendering of the Crown bundle, for instance. So all of the material that the Crown relies upon, the facts, the record things of that nature, and the, the judge might order reports like sentencing assessment reports. Then the matter is adjourned for a second mention, so that is for the next month that Walama sits.

And the second mention is really to give the Crown the opportunity to see whether they want to make an application to exclude a matter from the list. On that occasion at the second mention what also happens is that the intake form that is prepared between the first and second mentions is tendered.

Peter McClellan And would the offender be out on bail during this period, or would they be in custody?

Justice Yehia So some offenders are on bail and some offenders are in custody.

Peter McClellan Depending upon the nature of the offence.

Justice Yehia Correct. And their criminal record, things of that nature. So when I last presided we had about 40 participants. Probably 25 were in custody bail refused and about 15 on bail. Some of those who are bail refused will probably remain bail refused. Others, there may be a release application made on their behalf.

Peter McClellan Right. So we’ve got to our second mention and what happens then?

Justice Yehia Then it’s adjourned for what’s called a sentencing conversation, and that’s really where the substance of the work is done. So the sentencing conversation involves at least two Aboriginal and Torres Strait Islander Elders.

Peter McClellan Should it be people known to the offender?

Justice Yehia Not necessarily so, and probably, although the Elders may know the offender or the offender’s family because there are very close connections in Aboriginal communities as you’d appreciate. They’re definitely not related, and not necessarily known to the offender.

So the sentencing conversation includes the Elders, the judge, the offender, the lawyers and the member from the Aboriginal Service Unit.

So the Aboriginal Service Unit is a is a unit within the Department of Communities and Justice. The members of that unit are all Aboriginal people who have a close connection to community and community organisations, and they support the Walama List by coordinating the Elders, for example, by ensuring that the intake form is completed between the first and the second mention and the intake form is basically a form that is completed after an interview with the participant that provides information about that person’s community, who their mob is, whether they have connected with services in the past, what are some of the underlying issues and trauma. So that is a preliminary screening tool. Let’s put it that way.

Peter McClellan That’s prepared before the second mention.

Justice Yehia Correct. And it’s prepared by a member of the Aboriginal Service Unit after an interview with the participant or the offender. So that’s the role of the Aboriginal Service Unit and one of their team is always present in the conversation. So then we have the Elders, the offender, the lawyers, member of the Aboriginal Service Unit, the judge and importantly the caseworkers or service providers. So some of these offenders may already be connected to case workers.

Peter McClellan Case workers being people who are drawn from what organisation?

Justice Yehia So it may be a case worker from Community Corrections. So Community Corrections have come to the party and have established a dedicated Walama unit within the city office of Community Corrections. One of their officers is always present for every matter in the Walama List. So it could be a caseworker from Community Corrections or it could be a case worker from one of the community organisations, such as Weave or Deadly Connections.

In some cases the participant has more than one case worker around the table. So they may already have tapped in to somebody, for instance, from Deadly Connections and from a residential rehabilitation centre.

Peter McClellan And the case worker has a responsibility in relation to the offender. How is that responsibility defined?

Justice Yehia All right, so the sentencing conversation involves a whole range of things. It involves a discussion about the offending. It involves a discussion about the underlying issues. It involves a discussion about the underlying trauma in that person’s background that has led to substance abuse, etc. The case workers are around the table listening to this conversation. And, importantly, what happens at the end of that conversation is that there is a commencement of the conversation about the case plan because the next step in this process is the case plan conversation.

Peter McClellan Well, you better tell us what a case plan is?

Justice Yehia I will. So the case plan is formulating what needs to be put in place to support and assist that offender so as to reduce the risk of reoffending. To provide them with the supports that they need to obtain counselling and treatment for a whole range of issues. It could be to provide them with the capacity to obtain employment. The case plan also addresses very fundamental things like many of the participants don’t have any form of identification, don’t have birth certificates, don’t have drivers’ licences, and have accumulated a significant amount of debt as a result of unpaid fines, etc.

So once all of those issues are identified the case plan is formulated and that means that the way in which each of those issues is going to be addressed is articulated. And the case workers that are sitting around the table during the sentencing conversation and who will be there again for the case plan conversations are allocated the responsibility of ensuring that whatever is required to address this particular issue is attended to and reported on in the case plan conversation.

Peter McClellan So the plan is prepared. How does this system or how does the process work in relation to people who will remain in custody, they won’t be given bail, and those who are out on bail?

Justice Yehia So, in terms of people who remain in custody, there’s a whole range of issues. It may be as basic as I’m sitting in a cell in custody and there are significant lockdowns as a result of COVID. My mental health is suffering. I love art and I am a painter, but as a result of lockdowns I have not had access to paints and canvas for two weeks. It may be as basic as, well you are the caseworker from community corrections, you will make sure between now and the next conversation that this person is provided with paints and canvases. So that’s a very minor example.

Peter McClellan But in terms of the plan that is developed for the individual offender. Will it differ if that person is going to be out on bail as opposed to continue to be in custody?

Justice Yehia Yes, it will differ, and it will differ in this way. That the people who remain in custody, well, there are limitations on what can be put in place for them in custody, so it could be that example that I gave. It could be something as minor as that, but for them it’s very important because it sort of addresses their mental health. For people who are on bail, it will include things like attending an appointment for an interview for employment. It will sometimes involve being admitted to a residential rehabilitation centre. It may involve, if not a residential rehabilitation centre, attending a counsellor for trauma and grief counselling and drug and alcohol counselling. So if you’re out in the community, there are a whole range of things that can be put in place for a case plan.

Peter McClellan Yep, and they’re in the plan. And they impose obligations upon the offender?

Justice Yehia And responsibilities on the caseworkers. So what happens in the case plan conversation is everybody is held to account. The offender is held to account in terms of their response to the case plan, whether they have been attending their counselling, whether they did go to the interview for this employment opportunity. But also, let’s say for instance, one of the issues is housing – and this comes up almost every time – and somebody needs some assistance in getting emergency housing. The case worker is allocated the responsibility of chasing that up. If at the case plan conversation, nothing’s happened, then the caseworker is held accountable. Why has this not taken place? What steps have been taken to get them housing and if there have been insufficient steps taken, then the case worker is accountable to the judge.

Peter McClellan To the judge. Can we just go back one step. In the development of the plan, does the judge have the final say as to what will be in the plan? How does that work?

Justice Yehia So the judge has an oversight function if I can put it that way. The matters that need to be addressed are identified by the Elders. They could be identified by the judge and they are identified by the caseworkers, so it’s a coordinated approach. But the judge does have the final say in respect of matters that may not have been addressed, but the judge wants addressed. So the judge may suggest in, in consultation with the Elders, for instance. One of the things that need to be addressed is that the person needs to attend on a counsellor so that a comprehensive mental health plan can be prepared and provided to the court on the next occasion. So certainly the judge has an oversight function and also obviously can suggest what needs to be addressed if that hasn’t already been addressed by the caseworkers and the lawyers.

Peter McClellan And does the prosecution play any active part in the development of the plan?

Justice Yehia So the role of the prosecutor in the Walama List has been a wonderful thing to observe. They have been very good at striking a balance between their prosecutorial duties and supporting the objectives of the list so everybody around the table gets an opportunity to contribute to the conversation. The prosecutor might, for example, identify that one of the things that has not been addressed is that the participant requires a very comprehensive mental health treatment plan. And they can raise that issue. And they can make submissions as to why that is something that needs to be addressed in the case plan. So the prosecutor does have a very important part to play and can raise those issues.

I should also add that the Walama List allows for victims of crime to attend and to sit at the table and to have a speaking role, if they wish to contribute. Of course, that has to be managed carefully.

And the prosecutors do bear the responsibility of asking whether the victims want to attend, informing them about the objectives of the list and whether they want to read out their victim impact statement, for example, or be present in the sentencing conversation and we did have two cases where that took place.

What was interesting to observe was in the cases where the victims did not want to attend, but of course had been consulted on multiple occasions, the feedback from the prosecutor to the offender, which was articulated in the sentencing conversation, was, I have been in touch with the victim. They don’t want to attend, but they want you to know that they are very pleased that you are going to be getting comprehensive or intensive treatment that you are going to residential rehabilitation. They want you to succeed in that. So that sort of feedback is also very powerful.

Peter McClellan Now when these conversations and well, first of all, the mentions and conversations are happening, is that occurring in a conventional court room?

Justice Yehia Well, yes it is.

Peter McClellan You speak of people around the table.

Justice Yehia Yes, so we’re around a bar table.

Peter McClellan Bar table in a courtroom and is the judge robed?

Justice Yehia Not for the conversations, no. For the first and second mention the judge is robed because that does not involve the Elders. It does not involve a conversation. It’s very much really, a traditional court process, administrative process.

But during all of the conversations, everybody is seated at the bar table and the judge is not robed.

Peter McClellan Now if my mathematics are right, we’re about maybe two to three months into the process at this stage.

Justice Yehia Correct.

Peter McClellan Has there been any mention of what the ultimate sentence might be?

Justice Yehia No. So under the current provisions of the Crimes (Sentencing Procedure) Act, the judge has the capacity, as you’d know, to adjourn the matter for up to 12 months. So in some cases it may be that the offender is not sentenced for six months, in others nine months, up until 12 months, and that will depend upon how they’re progressing. It may depend upon the nature of the offence, the seriousness of the offence, their record. Things of that nature.

Peter McClellan Well, if someone’s entered into a case plan and it requires a series of things to happen over time, so let’s say another three months. Does the matter come back before the Walama judge in that three-month period, or will it be adjourned for three months?

Justice Yehia Every month the matter is back.

Peter McClellan It must come back every month.

Justice Yehia Correct.

Peter McClellan What for a sort of report on?

Justice Yehia Once the sentencing conversation’s been held, every month for a case plan conversation to monitor how that person is going.

Peter McClellan Let’s assume after six months, they’re doing everything that was required of them and their progress is assessed to be good. What happens?

Justice Yehia So it may be that they’ve reached a point where the sentence can take place. So let’s say for instance they have completed their residential rehabilitation. They’re back out in the community. They have obtained employment. They’ve been abstinent for six months. There was no re-offending and it may be that the Walama List judge, then forms the view that, and in consultation with the Elders, because it’s always in consultation with the Elders, that the person is ready to be sentenced. Then they are sentenced, reverting back to the usual court process. So the judge is robed, judge is sitting on the bench, the judge is responsible for handing down the sentence.

Peter McClellan That sentence must conform to the relevant legislative provisions.

Justice Yehia Correct.

Peter McClellan What role, if any, does the fact that the person has been through a plan and performed well in that plan, what part does that play in the ultimate sentencing process?

Justice Yehia So it will depend. I mean obviously it will have some bearing upon an assessment of their future prospects of rehabilitation. It will have some impact upon potentially the weight to be afforded or the assessment of their remorse and contrition. The weight to be afforded sentencing considerations like specific deterrence and the protection of the community. So it’ll have an impact on all of those factors.

It will depend upon the nature of the offence, the seriousness of the offence, and the person’s criminal history as to whether that person, notwithstanding the positive progress, is then sentenced to a community-based order or a term of imprisonment. Much will depend upon how well they’ve progressed.

Peter McClellan But it’s contemplated that people who do well, whether they be in custody through the period of their plan, or whether they be in the community, that their performance in the plan will inform to some degree the sentence that might be imposed.

Justice Yehia Yes.

Peter McClellan And when they enter into this process, do they understand that to be the case, that doing well in their plan may be of assistance in their ultimate sentence?

Justice Yehia So they do understand that because from the very start, from the from the first mention the judge interacts with the offender directly. And then once the sentencing conversation and case plan conversations take place, that conversation again is conducted very, in very direct terms with the offender.

So the offender is told from the outset that their participation and involvement and progress will be relevant to the ultimate sentence. The offender is also told from the outset that their participation in the Walama List does not necessarily mean that at the end of the process, they will be sentenced by way of a community-based order.

So throughout the whole process, it’s a very honest conversation with the offender as to what is required of them, what is required of their caseworkers and the fact that there are no guarantees really about the ultimate sentence.

Peter McClellan Let’s assume our offender has entered into the plan and after six months has failed to perform some of the obligations that the plan imposed. What is likely to happen then?

Justice Yehia So it depends upon how they breach or how they come up short.

So for example there have been occasions where the person has failed to maintain contact with their case worker or the caseworker has attempted to contact them but has been unsuccessful on multiple occasions.

Now in some cases because of the conversations it has become apparent that that has been really about the fact that that person is suffering significant mental health issues and has just not been able to respond. Or they are homeless, they’ve lost their phone and have not maintained contact.

So if that’s what’s happening then it’s less likely the person is going to be breached and there’s going to be more intensive efforts at engaging them.

But there has been one or two cases where the person on a case plan has been admitted into residential rehabilitation and they’ve left. What has happened on those two occasions is that warrants have issued for their arrest, they have been arrested, they’re back in custody.

They have not been discharged from the Walama List, but they’re not getting bail, so the conversations continue. But now they’re in custody and whatever is put in place, it’s put in place within the limitations of the custodial environment.

Peter McClellan I know it’s too early to know what will or what has happened, but what would it we anticipate might happen if at the end of the 12 month period?

Someone was not doing so well. They hadn’t been discharged from the Walama List, but they weren’t doing well enough to have normally continued in the list and you’ve run out of time to defer their sentence. Does the court then just have to proceed to sentence the person?

Justice Yehia Yes, so the court then has to sentence because there’s really no power to adjourn the matter any longer.

I mean, one of the things that we had requested in the initial proposal for the Walama Court and the reason we wanted legislation was because we thought that it might be very important for the court to have some sort of monitoring power post sentence.

We don’t have the power to do that now as you know, unless of course it’s the person sentenced to a community corrections order, they breach and they come back, but if the person’s sentenced to an intensive corrections order and they breach, they don’t come back before the court. So we’ve got very limited capacity for monitoring once person is sentenced.

So if a person has been on the Walama program for 12 months, they have to be sentenced. They haven’t been doing very well, although they haven’t breached by way of further offending, for instance, then it really depends upon the nature of their offending, how serious it is, what a proportionate sentence will be.

It may be that in a given case, the appropriate sentence is an intensive corrections order, and if that’s the case, then the conditions can be fashioned in accordance with the case plan.

If it’s a community corrections order, it can be again, conditions can be fashioned in accordance with the case plan and if they breach they come back before the Walama List judge.

If it’s a term of imprisonment then what we hope for is that during that twelfth month that they’ve been on the Walama program, they’ve built very close relationships with their caseworkers. And many of these caseworkers are very dedicated to their clients, so even though it might be a term of imprisonment then that relationship will continue even for the time that they’re in custody, with a view to providing them with supports once they’re released to parole.

Peter McClellan And is the intention if it works well that the number of offenders admitted into the Walama List will be increased?

Justice Yehia Yes, I think that once the Walama List is evaluated and there’s two forms of evaluations, the quantitative and qualitative, once it’s evaluated and there’s some data and it’s operating as we think it will and the results are successful, then I think what’s proposed is that the cohort increases. And also the sitting time increases. So as I said, it’s one week a month. I mean already at 40 there’s insufficient time to do justice to the conversations.

Peter McClellan If you’ve got 40 matters back before you, every once a month, Monday, that’s a lot of work.

Justice Yehia That’s right. That’s right, and the sentencing conversations take anywhere from an hour and a half to two hours. The case plan conversations take at least half an hour, and even when people are doing well, they’re really engaged, so they want to talk during the case plan conversations and let you know how well they’ve been doing.

Peter McClellan It’s important that they be given that opportunity, I imagine.

Justice Yehia So I think it would be doing an injustice to the conversations and the whole process if you were trying to hurry the conversations along, so we’ll need more sitting time for sure.

Peter McClellan And what all that means, of course, is that if this is successful, it will be a resource-intensive way of administering justice in relation to Aboriginal offenders.

Justice Yehia Yes, that’s right, but it will certainly save on the resources spent incarcerating Aboriginal offenders, and of course, the resources that really you can’t quantify on incarcerating people. The fragmenting of families and communities and things of that nature.

They’re very difficult to quantify in monetary terms or resource terms, so I think it is resource-intensive, but the only way that you can effectively reduce reoffending, I think, is to put the resources into the front end of the process. Because I think that we know, at least in terms of the rates of Aboriginal people in custody, what is happening is not reducing recidivism. So I think yes, it is resource intensive, but I think it will save money at the end of the process.

Peter McClellan Do you have any idea how many offenders, if the project was open-ended, how many offenders would be eligible to come into a list such as the Walama List?

Justice Yehia I think, well it’s a difficult question to answer for this reason. If you were limiting the proceedings to sentencing proceedings, which is what we’ve had to do because of the cap, then I think the BOCSAR statistics for two years ago or just pre-COVID, there were about 240 matters involving Aboriginal Torres Strait Islander people being sentenced in the District Court state-wide.

Peter McClellan State-wide, that’s in a year.

Justice Yehia Correct. So if you were limiting it to sentencing proceedings, and let’s assume that some of those people would be excluded because they’re sexual assault matters, you might end up with, let’s say, 180 sentencing proceedings. But if you included, which was the initial proposal, sentence appeals from the Local Court or breach proceedings from the Local or District Court, then the numbers could be double that.

Peter McClellan And if you of course took that approach you would be likely to encourage appeals from the Local Court to the District Court as well, wouldn’t you?

Justice Yehia You might, but I think that you see again repeatedly in the Local Court appeals that come up to the District Court, the same sorts of issues. You know the trauma, the homelessness, the drug addiction, the, the mental health issues, etc.

Peter McClellan I’m sure they’re all there, but I’m just thinking to myself, the chance of getting into a program if it was available would be worth taking for someone who otherwise may not have a very good-looking future.

Justice Yehia Yes exactly.

Peter McClellan Judge, this is a fascinating discussion. You must have seen that wonderful painting. I can’t remember now who painted it, which was a courtroom scene with a white person in the dock. Every other person in the courtroom is black. Yes, it’s a very powerful statement of what many Aboriginal people will face every day in the courts in NSW.

Justice Yehia It is. That’s so true. That’s so true, and that’s why it’s so important. I mean, it is a wonderful thing to see around that sentencing table conversation mostly Aboriginal people. So it’s the Aboriginal Elders, most of the caseworkers are Aboriginal, the ASU, the Aboriginal Services Unit members are Aboriginal. And so often the people you have around the sentencing and case plan conversations, the judge is the only white person.

Peter McClellan The judge is the only white person.

Justice Yehia That’s right.

Peter McClellan Not that the judge is in the dock.

Justice Yehia No, no, exactly, but it is very powerful and it means that the Court has the cultural authority that it needs to meaningfully engage with offenders, Aboriginal and Torres Strait Islander offenders and it also brings an Indigenous narrative to the process which is really important if you’re going to have that respect, because without that respect you’re not going to get proper engagement and increase the chances of compliance with your orders. You’re just not going to.

Peter McClellan Now Judge we of course mentioned the fact that you were responsible for developing this idea and ultimately driving its creation. But before 12 months had passed you were asked to come to this, the Supreme Court. Was it a hard decision to leave behind the District Court and the Walama List to come to the Supreme Court?

Justice Yehia So it was very difficult to leave the Walama List. It was very difficult. You can imagine what a meaningful process it is and just engaging with the Elders and engaging in that process was personally and professionally a very powerful experience. And I’d only presided over the List for 6–7 months so it was a very difficult thing to leave behind. It’s in very good hands, I know that it’s in very good hands of course. I’m sure I’ll continue to have some sort of input.

Peter McClellan I’m sure you have an acute interest in what’s happening. It certainly is an idea whose time has undoubtedly come. And hopefully will develop and go forward and increase the justice response to Aboriginal people in a better and fairer way.

Justice Yehia Yeah, that’s what we’re hoping.

Peter McClellan Well Judge, thank you very much for this chat this afternoon.

Justice Yehia Thank you.

Peter McClellan And congratulations on your appointment to the Supreme Court. We wish you well in your time here.

Justice Yehia Thank you very much.

Peter McClellan You have been listening to Justice Yehia, a judge of the NSW Supreme Court. This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teacher’s guide to the podcast and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening. 

 

Peter McClellan Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora nation. We pay our respect to their elders, past and present, and to all Aboriginal and Torres Strait Islander people listening today.

This episode focuses on Circle Sentencing. This restorative justice program is available to Aboriginal offenders in some Local Courts in NSW. The Circle, as it is known, provides a way of sentencing Aboriginal offenders, involving Aboriginal Elders and respected members from the local Aboriginal community.

Today we are joined by Maree Jennings. Maree is a Senior Policy and Projects Officer in the Aboriginal Services Unit in the Department of Communities and Justice. Maree has significant experience in Circle Sentencing, starting as a volunteer community panel member in Mount Druitt, now working on the operation of the program with the Department.

Thank you for joining us today, Maree.

Maree Jennings Thank you for having me.

Peter McClellan Maree, I think you’ve been involved in a number of areas to do with the justice system. Give us some idea of your career path.

Maree Jennings Sure, I actually started off in Centrelink with the federal government, so obviously with the community contact there. So from a welfare perspective, and then came across Circle Sentencing, which was operating in the Mount Druitt community and was involved with that and thought it was a wonderful program.

The Project Officer role became available and I applied for it. I thought if I’m going to ever finally leave Centrelink, because I started there in my career as a trainee, if I was ever going to do it, this would be the role that would call me out. And I was very fortunate to get that role and absolutely loved the job …

I’ve lived in Mount Druitt all my life, but my family ties are actually in Queensland, in Rockhampton, on my Dad’s side, with the Darumbal Nation. And then on my Mum’s side, it’s the Gunggari Nation which is Central West Queensland. So around Mitchell, Augathella, Charleville.

My Mum and Dad actually met in high school in Rockhampton. My mum was Stolen Generation and was in one of the orphanages there, and ended up in Sydney because my Dad was conscripted into the army with the Vietnam War. Came through Western Sydney, loved it. Back then it was sort of rural-looking and thought, once he gets out of the army, he’d like to raise a family there. So family from Queensland followed him down and we’ve been out in Western Sydney ever since.

Peter McClellan So at what stage of your career path, as it were, did you get involved in Circle Sentencing? Were you by that stage a senior bureaucrat or how does it, how does it work?

Maree Jennings No, in the local Centrelink service offices, I was sort of middle management. I was a team leader of the Indigenous Services Unit that worked across Sydney and the Project Officer at the time, she asked me to be involved in the Circle. Never knew what it was until I went there on the day and saw how the Court operated, the Circle Court operated and, and yeah, it really struck me how powerful it was.

Peter McClellan So at that stage, what was your, what was the nature of your involvement?

Maree Jennings As a community panel member at that stage.

Peter McClellan Right. And you’re now a Project Officer.

Maree Jennings No. I was a Project Officer.

Peter McClellan You were, I’m sorry. You were for how long?

Maree Jennings Ohh would be … At first it was roughly 12 months. Then I went into the head office and then I came back in 2014 for another 12 months and then went off and did a couple more projects.

So I’ve had, if you were to look at it all combined, two years as the Project Officer, but throughout the whole 12 years that I’ve been with the Department, I’ve always had something to do with Circle Sentencing.

Peter McClellan And what’s your role in relation to Circle Sentencing now?

Maree Jennings Now it’s more around the reporting. I’m working with the central team where we’re creating reporting mechanisms, databases. So that’s kind of been where I’ve looked over it over the last few years.

Peter McClellan Right. Well, we should go back a step then, I guess you’d better tell us how does it operate? What, what’s the structure of Circle Sentencing?

Maree Jennings OK, the structure of Circle is, it’s an actual court that involves community panel members in the decision making, we make a recommendation to the magistrate. We sit in a circle with the magistrate, the defendant, the legal representatives and at times the victim as well, and usually three community panel members. And we get to hear the facts, the criminal history, we get to observe, read the criminal history and then deliberate after listening to the defendant.

It’s structured in a, it’s bringing culture into the legal system, but it’s still operating within the confines of the legal system. So it’s not a separate court.

Peter McClellan So there’s a person who has been charged with a particular offence?

Maree Jennings Yes.

Peter McClellan An Aboriginal person?

Maree Jennings Yes.

Peter McClellan And they come to court before a magistrate?

Maree Jennings Yes.

Peter McClellan To be sentenced appropriately for that offence? But the Circle process involves then a structure around the magistrate to help to reach a conclusion. Is that right?

Maree Jennings To a certain degree. The sentencing happens with the community panel members. So, and it’s the community panel members that make the recommendation of the sentence based on the facts. And of course the scale of the offence in relation, the scale of the sentence in relation to the facts, the offence.

Peter McClellan And is the magistrate bound to accept that recommendation?

Maree Jennings Not bound, no. However, in most cases they agree, and they even in, in some cases advise on the sentence as well.

Peter McClellan Right, and how many panel members are there?

Maree Jennings Three as a minimum.

Peter McClellan And how are they chosen? Where do they come from?

Maree Jennings They come from the local community and they’re respected community members or Elders, and the Project Officer usually are the ones that select the panel members.

And then, of course, you got to look at if there’s a connection with the defendant and the panel members. Got to ensure that there’s no conflict of interest. However, there’s got to be the connection to community.

Peter McClellan So you’re a respected community member. Is that the way …?

Maree Jennings Yeah, I’d term it as that, yes.

Peter McClellan And are community members paid for their involvement?

Maree Jennings No. Voluntary.

Peter McClellan So you volunteer?

Maree Jennings Yes.

Peter McClellan And at that stage, did you still keep doing your job elsewhere but on occasion you were then chosen to be a panel member that required you to get leave from your job?

Maree Jennings Yes. Yeah. Yeah, selected to be part ...

Peter McClellan And what sort of time commitment did it involve in those days for you?

Maree Jennings It’s roughly a … you allow two hours for the court to happen. So yeah, you’d give yourself a two-hour window.

Peter McClellan And once you became involved as a member of the panel process, how often were you called upon to sit?

Maree Jennings Usually once a month.

The Circle, because of the amount of hours it would take from the magistrate’s diary, it’s usually two hours, so we would allot two hours per month for a Circle to be held. In some cases it would be two Circles per month, so that would be four hours.

Peter McClellan So, and you were always a member of the panel?

Maree Jennings Not always because we had a good pool to be able to reach from to have as panel members. You could have a pool of probably 5 to 10 and you could call them up.

Maree Jennings You’d obviously do a bit of an assessment to see who would be appropriate. We’d get some of the gentlemen in if we had young men that were there, we’d get some of the aunties in if there was a younger person.

Peter McClellan And how do you get to understand who all those people might be?

Maree Jennings Your connections!

Peter McClellan But is there a register? Do you keep a list? Or how does it, how does it happen, how does it work?

Maree Jennings You would have a list, because you’ve, you’ve definitely got to have people who are invested in the Circle. Because it’s voluntary, it’s taking up people’s time. So you’d have a list per se, but you’ve got to be well connected in your community as well.

Peter McClellan When you say the community, what do we understand that to mean?

Maree Jennings In the Aboriginal community, the local Aboriginal community.

Peter McClellan The local community.

Maree Jennings Yes.

Peter McClellan So the local community at Mount Druitt is a Mount Druitt community or how do we, how should we understand it?

Maree Jennings It’s quite a diverse community in Mount Druitt. It’s not, not always full of traditional Darug people. It’s … Mount Druitt is very transient. And we’ve got people from all over NSW in particular that have lived in Mount Druitt for many, many years, decades.

And, but you’ve got a lot of people there from those different countries that are well established, have done great work, well respected, well known in the community and you call on them and their expertise and their life experience.

Peter McClellan And who does the calling? Who?

Maree Jennings The Project Officer. The Circle Sentencing Project Officer.

Peter McClellan Right. So out of Mount Druitt …

Maree Jennings Yes.

Peter McClellan .. the magistrate is continually doing some Circle Sentencing once a month or maybe twice. And then there’s a Project Officer that helps to administer the system. Is that what happens?

Maree Jennings The Project Officer’s usually the one that oversees everything, facilitates and coordinates everything. I guess their role in ensuring that the magistrate’s available is liaising with them to ensure that they can get time on the diary or on whatever date that they have available and then the Project Officer is the one that does all the negotiating, contacting, facilitating.

Peter McClellan Now the type of offences that might come before a Circle – do they include drug and alcohol related matters?

Maree Jennings To some extent. They’ve got to be summary offences.

But there are certain offences that don’t come before Circle and they, like we have had people come before Circle with drink driving offences.

I couldn’t tell you off the top of my head, but I do recall that we may have had a few people with some drug driving offences as well, but there are certain ones. And I do think some, there are some that fall under the drug category that cannot come before Circle.

Peter McClellan What would be the most common type of offending that comes to Circle?

Maree Jennings Assaults, malicious damage, driving offences …

Peter McClellan More likely to be young men than women?

Maree Jennings Yeah, we do have a higher, higher representation of Aboriginal men coming before Circle.

Peter McClellan Now, can we then go back to understand a bit more about the process. Let’s say we have a young 20 year old who’s committed an assault offence, and maybe has a record for some minor crime previously. Is he a person who’d maybe come before a Circle for sentencing?

Maree Jennings Yes, yes.

Peter McClellan And so the Project Officer would gather together three community members.

Maree Jennings An assessment process has to happen before then for Circle.

Peter McClellan Assessment? What’s that involve?

Maree Jennings So there’s always an assessment process and that determines the client’s or the defendant’s eligibility. So they’ve got to demonstrate that there’s a connection to community. Of course the defendant, ‘cause it’s a voluntary program, the defendant has to agree and they’ve got to be found guilty or plead guilty.

Peter McClellan Right.

Maree Jennings So that process needs to happen and then, like the assessment happens where a conversation happens with the defendant to also say, are they remorseful, do they think Circle’s going to be something that will benefit them…

Peter McClellan So this conversation is with the Project Officer?

Maree Jennings Project Officer and Community Justice Group members as well.

Peter McClellan We haven’t got to the Circle, yet?

Maree Jennings No, no, no, this is assessment.

Peter McClellan It’s the assessment process. So the Project Officer is talking to our young 20 year old offender, to see whether or not he or she thinks the offender is suitable for Circle and find out whether they agree to it.

Maree Jennings Yes, yes.

Peter McClellan But there’s also an assessment process at that point?

Maree Jennings Yes, that is the assessment process.

Peter McClellan By the Project Officer?

Maree Jennings And Community Justice group members as well.

Peter McClellan And who are they?

Maree Jennings So they’re … in the locations where we have Circle Sentencing operating, we also have Aboriginal Community Justice groups in operation as well. So they’re like a group of community members who have undergone criminal history checks and are there to advise on justice issues in that local community.

Peter McClellan So are they there to assess our young 20 year old fellow?

Maree Jennings Yes.

Peter McClellan Or to advise him? What? What’s their role in relation to him?

Maree Jennings They’re there to assess, to see if he’s eligible for the Circle, based on connection to community, based on if he’s volunteered and agreed to go and also if he’s remorseful as well. There’s got to be a level of remorse and I think that kind of encompasses the restorative justice principles that Circle’s reflective of as well.

Peter McClellan So how many people would be involved in this assessment?

Maree Jennings Three. There needs to be a quorum there of three members, Justice group members. However, we’ve, we’ve recently had, well I say recently, in the last five years we’ve had regulation changes where the Project Officer can stand in place of the Community Justice group members if they are not available, but make sure that they liaise with some of the Community Justice group members as well. So it doesn’t have to be an in person assessment.

Peter McClellan And the Community Justice people tend to be Elders from the community?

Maree Jennings It’s a great mix of people. You’ll have Elders. You’ll have service, Aboriginal people who are in services in that local community. And yeah, generally interested Aboriginal community members.

Peter McClellan So if they come to the view that our young 20 year old’s not suitable for Circle, then I assume he will be sentenced in the ordinary way.

Maree Jennings Yes.

Peter McClellan Right.

Peter McClellan If they decide that he is suitable, what then happens?

Maree Jennings Then the matter goes back for mention and his application of suitability is accepted and then the date for Circle is set. And then the Project Officer works on getting the panel members together, getting all the documentation together and ensures that everything is ready for that day when Circle has been set.

Peter McClellan Now tell us what happens on that day.

Maree Jennings On that day … so everyone comes, sits in a circle …

Peter McClellan You say everyone. You mean the magistrate’s there?

Maree Jennings Everyone as in the magistrate and we have sheriff officers there as well.

Peter McClellan The offender’s there obviously.

Maree Jennings Yep. The offender, their legal representative, the police prosecutor.

Then we’ll have the three Elders or three panel members. Sometimes in some locations I’ll include community corrections as well as an advice on what support and supervision could happen.

Peter McClellan What’s available?

Maree Jennings And victims.

Peter McClellan Victims are there too?

Maree Jennings Yeah. They’re always … if there is a victim to the crime, they are always invited. Nine times out of 10, they will decline. But we do often get either a victim impact statement or someone to speak on their behalf.

Peter McClellan Is it done in a courtroom?

Maree Jennings Some places, yes, like in the Shine Room or in a like one of the meeting rooms there.

But other times it’s taken off premises as well. And in a local, a local venue where it’s suitable, easily accessible and of course those safety checks have happened to ensure the magistrate’s fine and if the person’s got to be taken into custody.

Peter McClellan And then help us to understand the process. The magistrate presumably chairs the session.

Maree Jennings No.

Peter McClellan Doesn’t?

Maree Jennings The Project Officer chairs the Circle and also facilitates the discussion that happens in the Circle.

Peter McClellan Right. So how does it unfold? Just give us a …

Maree Jennings OK, so there’s an agenda that is followed and it’s usually the police prosecutor will read the facts and then the defendant gets an opportunity to speak to the facts and their legal representative will then talk on behalf of the defendant as well. And then it’s opened up to the panel members for questions, remarks and so a bit of back and forth will go on.

Peter McClellan So is the offender questioned in this process?

Maree Jennings Yes.

Peter McClellan About what? What sort of things will be raised?

Maree Jennings What were they thinking at the time? A whole range of questions. It depends on the circumstances, of course. If for, say, for example, this young gentleman, that 20 year old with an assault charge would, he’d be asked questions like what was going through his mind, was he under the influence of anything? You know, is this standard behaviour that he’s lived by? What was his background like, what was his upbringing like? Did he live like that? Was that his normal?

And so those kind of probing questions get asked and it’s not a situation where they can just go yes, no or hide behind their legal representative.

They actually have to be accountable and respond and sometimes it’s quite uncomfortable when you’re watching one of the Elders probe really deep. What’s going on? Well what did you think you were going to get as a result of your behaviour there? Or did you not consider the impact or your effect on someone else?

So they really get the spotlight put on them and it’s, you know, I guess in some instances it’d be how I’d respond to my children if they did something wrong. I’d be like, well, think about your behaviour, think about your impact on other people. And this is what they have to do in the Circle.

Peter McClellan And how does the Circle ultimately resolve its recommendation in relation to the sentence that should be imposed? What’s the process to arrive at that?

Maree Jennings There is a, the panel members are given paperwork where for each of the offences there’s a scale of sentencing outcomes that could be imposed for that particular offence.

Peter McClellan So what between, maybe …?

Maree Jennings A fine to three years imprisonment. Yeah. And so conversations happen in front of the defendant and their, the solicitors and the police prosecutor around what the panel members are thinking. And it’s quite interesting. I was on a Circle panel a little while ago, last year and you know, we had to take into consideration for the defendant … some of us weren’t convinced that he was going to comply with the conditions that were placed upon him with his sentence, and ended up giving him … was it a section 11 Griffith remand?

Peter McClellan Yeah.

Maree Jennings Yeah. So basically he had three months to demonstrate that he was going to commit before it was reconvened, the Circle with the same panel members.

Peter McClellan And?

Maree Jennings And he did. He came back and he did. He demonstrated that he did what he needed to. So that was taken into consideration when the final sentence was handed down for him. And that was all with the magistrate’s guidance as well.

Peter McClellan So if the range was a fine to three years and this discussion is, is it, does it involve the offender in any way arguing for a lesser penalty or accepting the penalty that the members think should be imposed?

Maree Jennings Their legal representative does get an opportunity before the sentencing deliberation happens, and they will say, look, we’re looking for this and we asked the court to take into consideration A, B and C and then so that’s taken into consideration. But then the conversation is happening with the panel members.

We also get to hear from the police prosecutor as well around that, they’ll give their recommendations as well.

And then the conversation happens with the panel members. And of course, if we need guidance or advice from the magistrate we’ll ask in that and it’s all happening in front of everybody in the Circle.

Peter McClellan And then who actually then decides what the number or the fine should ultimately be? Is it that group?

Maree Jennings Yes, the panel members.

Peter McClellan Does the magistrate play a part in that?

Maree Jennings Very much so.

Maree Jennings So if the offence, say it was the assault and the legal representative for the defendant said “no conviction, dismissal”, you know, and the panel members were around that as well. The magistrate would certainly step in and go “well no, because we’ve got this. We’ve got to consider A, B and C for this”. And so the panel members then have to continue with the deliberation.

So it’s not a case where we’d go rogue and give somebody a completely unreasonable sentence. You know, we even had an instance many years ago where one of the Elders, he was very staunch and he’d crack the whip, so to speak, and he wanted to throw everyone into jail. So we had to, you know, have the balance there and the magistrate there was very good at doing that as well. So it’s, yeah, it’s a good exercise to see the deliberation.

Peter McClellan Maree, can you help us to understand what’s the benefit that you see flowing from the circle sentencing process?

Maree Jennings So, one the defendant, they are held accountable. They can’t hide behind their solicitors to, to allow them to speak on their behalf, and it’s before community members.

Peter McClellan Accountable to your community.

Maree Jennings Absolutely, yes. And two, it’s the opportunity to be able to speak potential and hope into somebody’s life, especially if you look at some of the defendants and you see their criminal history.

You know, some of them, they’ve been offending since they were teenagers since they were kids and you could be looking at someone who’s in their 30s and it’s, you think, why is there a gap in the, in their offending? There’s like a two year gap. Oh that’s because I was in prison. You know, so yeah.

Peter McClellan Well, the judges see that too.

Maree Jennings Yeah. So us as panel members getting to see that, but then saying don’t you want to change your life?

You’ve got all these support services and people around you if you engage in them.

It’s actually quite astonishing to see how disengaged people are from community in general.

When you see someone who’s got all these issues barriers, if they were connected to services and connected to people and groups, it could alleviate ...

Peter McClellan That’s true, of course, of kids or young people right across society.

Maree Jennings Oh, absolutely.

Peter McClellan One of the issues we fail, I think, to get kids when they leave school to then become effective participants in different community sporting or other organisations …

Maree Jennings Yes.

Peter McClellan … which would do a lot of kids a lot of good.

Maree Jennings Yes.

Peter McClellan And in terms of the circle outcomes, is there follow up? Do you get to understand how the person has travelled after they’ve been sentenced?

Maree Jennings There is a level of follow up. Not necessarily from the Circle Sentencing Project Officer role. A lot of it’s done through the connections with other service providers as well. So if for example, somebody was referred to a drug and alcohol counselling service or referral service, usually the Project Officer would have some sort of connection with them so that it would be like a soft follow up more than anything.

And in some cases the Project Officer would work with the community panel members and the Aboriginal Community Justice Group to do follow ups. Just ringing around getting a verbal of how the defendant was going.

Peter McClellan What’s the success rate?

Maree Jennings The evaluation that was conducted by BOCSAR back in 2020, they looked at three factors. One, obviously the reoffending rate and they found that with this, with Circle Sentencing, 4% reduction in people reoffending who have been through Circle.

Mind you, we’re only operating in 12 courts out of 148, I think there is across the state, so that’s not too bad.

We’ve had 1500 participants over the 20 year span of Circle.

Peter McClellan I think it’s about to grow, isn’t it too?

Maree Jennings It is. We’ve got some expansions that are happening.

Peter McClellan Yeah.

Maree Jennings And then the time that people have reoffended after Circle has been a lot longer. I think the evaluation stated 55 days longer for people to reoffend. That’s good because …

Peter McClellan … very often they just turn around and do it again.

Maree Jennings Yes, yes. So we’ve had some good successes there. And then again I guess the softer side of the success is the connection that people have getting involved and connected to services to help them deal with their issues.

Peter McClellan Yeah. And as far as going forwards with this program you mentioned, it’s going to grow. In what way is it going to grow?

Maree Jennings So we’re looking at more locations that will eventually start. By the end of this year I’d say we’d have probably another five to six locations where we have Circle Sentencing.

And I think communities, I guess the justice system is starting to realise that you need to engage community to be able to address the issues, the legal issues or justice issues in community. It can’t always be that punitive approach. There has to be the engagement of community and getting the voice in there to give guidance and even to give, get access into the communities as well.

I guess we have a particular way of doing things when we’re doing it from a government perspective or from a policy perspective.

But we don’t always think about how the implementation of that affects communities. So when you’re getting community feedback on how the policies affect and are impacting community people, if we’re able to tweak that, then we might get a greater impact or a greater outcome and maybe reduce people having contact with police and courts and prison.

Peter McClellan Now someone’s offended and been through a Circle process and maybe they’ve done a short prison term.

Maree Jennings Yes.

Peter McClellan And then they are released and then they reoffend, are they likely to end up before a Circle the second time or is it one chance only that you get?

Maree Jennings It originally started off as one chance only, but now people have come before Circles a couple of times and I guess you got to take the perspective that people … we’re complex and it’s taken many years for people to, to have these behaviours, offending behaviours.

A one shot in a diversion program or an intervention program, doesn’t necessarily always, it’s not the silver bullet. So sometimes it’s got to happen a few times over before you can start to get some runs on the board.

Peter McClellan And the system no doubt evaluates the individual when they come back into the system to see whether or not there will be benefit by having another Circle.

Maree Jennings That’s right. And that’s how we got to, in the last evaluation from BOCSAR, I got to see that some of these defendants, it took longer for them to reoffend than what it would have in the past.

Peter McClellan Is Circle Sentencing welcomed by the Aboriginal community?

Maree Jennings Yes, in most communities, yes. I don’t think I’ve heard of any community saying no. If anything, I guess the questions around Circle now is obviously like the logistics side, the impact on people, community panel members having time available, especially if they’re working, they’ve got to go and negotiate time with their employers to be able to come and sit on a Circle.

So those are I guess are some of the challenges that we have. And then exhausting our Circle Panel members as well, especially if we’re getting more coming through.

We got to make sure that we’ve got a great pool.

Peter McClellan Got a resource. Yeah.

And are there any changes to the way it operates that you can see coming, or do you think it’s now working in the way best suited to the needs?

Maree Jennings I think at this stage the way it’s working now is great, but certainly room for it to evolve.

But the beauty of Circle is that it can be tailored to the local community, like the fundamentals must remain the same. The operation of how we follow the regulations and the procedure manual. But how we implement that, we’re able to do that, to tailor it to the local community.

Peter McClellan Is Circle Sentencing available in Western New South Wales?

Maree Jennings We do have some locations.

Peter McClellan Whereabouts?

Maree Jennings Walgett, we’ve got Moree, Armidale. We did have Circle operating in Bourke and Brewarrina, but a that’s kind of slowed down a little bit. We are looking at I think expanding to Broken Hill, but I’m not too sure when that’s going to be happening. But that was one of the locations included in the latest announcement.

Peter McClellan Are there resource issues in operating Circle in those places?

Maree Jennings To some extent.

I think we have competing priorities with circuit magistrates, in particular. Because they’re in locations on a circuit basis. In some instances, it could be fortnightly or monthly. We’ve got to appreciate that the time that Circle Court takes also takes up time from the Magistrate’s court listing as well.

So it’s a little bit hard to navigate that. But it has worked. It has worked in the past.

Peter McClellan Maree, this has been a fascinating discussion about a very important development in the law. Thank you for joining us today.

Maree Jennings Thank you for having me.

Peter McClellan You have been listening to Maree Jennings who, as you have heard, has a wealth of experience in Circle Sentencing both as a community panel member sitting on Circles, and from an operational perspective.

This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teachers’ guide to the podcast, and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.

Peter McClellan Hello and welcome to another episode of the Sentencing Council’s podcast Sentencing Explained.

I’m Peter McClellan, the chair of the Council. We are joined today by Magistrate Mark Douglass, who is going to talk to us about the work that he does in the Local Court. Welcome, Mark.

Magistrate Douglass Thank you. Thank you for the opportunity.

Peter McClellan Mark, your story, your personal story, is one of which I’m sure will be of real interest to the listeners to this podcast. We should start off by identifying the fact that you are an Aboriginal person.

Magistrate Douglass Yes.

Peter McClellan And you were brought up in what part of Sydney?

Magistrate Douglass Western suburbs, fibro frontier, as I often now refer to it as. East Hills, within a fibro house out there.

Peter McClellan Right, with your family?

Magistrate Douglass Yeah. Mum. Dad. Brother. Sister.

Peter McClellan Right. And how did you fare as a kid?

Magistrate Douglass It was a difficult childhood and you now you don’t recognise that when you’re living it, of course, but very difficult childhood trauma.

Peter McClellan You’re prepared to tell us in what way it was difficult?

Magistrate Douglass Yeah, I suspect Mum lived with mental illness, mental condition and dad had his own issues that he was living with, he grew up in a boys’ home in England and was brought to Australia by himself aged 9 or 10 without parents.

Mum grew up in a household that there was significant violence, domestic violence, alcohol.

So all of those traumas had an impact on their ability to cope with their, their life choices at that particular time, having a family, and I saw a lot of domestic violence.

There was a lot of arguments turbulence. I was stabbed twice before I was seventeen. Saw I think I first saw cannabis. I was about 12.

There was heroin. 14 when I first saw heroin?

It was, it was difficult. My sister was sexually assaulted for a couple of years. I was sexually assaulted by an older boy.

And life was difficult. I was always waiting for, for mum to, sort of, take her own life. It was, yeah. It was really, really difficult.

Peter McClellan And no doubt it had an impact upon the way you moved through your schooling years.

Magistrate Douglass Yes. Yeah it did. I was probably, from a teacher’s perspective, probably a difficult student, I’ll say that. I was alright playing footy, rugby union, rugby League, union better than league but…

Yeah, I failed the HSC 152 out of 500 I think, Peter.

Peter McClellan So it’s not a high score?

Magistrate Douglass No, not in anyone’s books. I think I missed about 49 days of year 12 and it’s only a short year.

Peter McClellan And that Mark wouldn’t have got you into law school?

Magistrate Douglass No, definitely not.

Peter McClellan So what, so what did you do?

Magistrate Douglass I took on various jobs. I was already laying bricks when I was at school, but I stayed there to play footy really and just. Sort of enjoy school holidays. I took an apprenticeship. Laid bricks. I took a job on the roads. I drove trucks, stop/ go person for a while. And then eventually, I was looking at maybe becoming a builder and or doing something more because I -

Peter McClellan At what age are we talking now?

Magistrate Douglass 23, 24.

Peter McClellan So by then you’d done all the bits and pieces jobs, but you were looking to create a career for yourself?

Magistrate Douglass Yeah, I was. And then someone said, well look you, you could go to uni and I laughed and said no, I no. That won’t be happening. Because I was in an atrocious speller. Still have problems but anyway, about 28, 29, two children mortgage, half renovated house. I was told I was gonna lose my job, so I took a redundancy. And I went to uni.

Peter McClellan So you were able to finance your way to the university?

Magistrate Douglass Well, I worked two jobs and I took a, it was like a gateway course for mature aged students, and they gave me a HSC mark eventually to get into the law school and I got a reasonable mark so.

Peter McClellan So you must have worked pretty hard then to achieve all that at that stage.

Magistrate Douglass Yeah, looking back, I think I did work pretty hard, yeah.

Peter McClellan And which university did you end up at?

Magistrate Douglass University of Wollongong.

Peter McClellan Wollongong, right. Did you do the bridging course with them too?

Magistrate Douglass Yes, I did.

Peter McClellan So you went straight from the bridging course into the law faculty?

Magistrate Douglass Yes.

Peter McClellan Full time?

Magistrate Douglass Yeah. Full time. In fact, I finished the arts/law degree in, I think, 4 years. I was trying for 3 1/2 because I needed money. Yeah, I tried for 3 1/2, but I think I finished it in four. They wouldn’t let me do any more credit points. I was at the max and all the time …

Peter McClellan And were you working at a job at the same time?

Magistrate Douglass Yeah, I was laying bricks on the side and working in the law library and working in the library.

Peter McClellan You must have been busy.

Magistrate Douglass Yeah, looking back on it, yeah. Yeah. But you don’t realise it when you’re doing it, Peter. Yeah, you just sort of do it.

Peter McClellan It is quite a journey though from failing the HSC to getting a degree in Arts and Law at the university.

Magistrate Douglass Yes, it is. I think the bigger part of the journey is putting discipline in myself and putting boundaries in place because when I grew up there, there wasn’t many boundaries and nothing was off limits and that’s the difficult part.

Peter McClellan Yeah. And then when you finished your law degree, what? What did you do with it?

Magistrate Douglass I went straight into practice. I worked with a very small boutique personal injury firm back in the days when personal injury was quite lucrative. I was actually lucky with others, but I topped Torts as a there was a couple of us and I think I topped Commercial and Consumer Contracts and I think I did that, shared that with someone else. And in the Arts Department, I know I would have got over a dozen HD’s, I’d imagine without counting them.

Peter McClellan Sounds like a spectacular record.

Magistrate Douglass Yeah. Look, the law, the Law Faculty, I wasn’t that interested in the law subjects, but the Arts subjects were really, really quite good. But I went into a personal injury firm and I didn’t like it.

Peter McClellan Didn’t like that type of work?

Magistrate Douglass Didn’t like that type of work. I was, I ended up at Local Court. Crime, ended up working for an ALS which I enjoyed. Aboriginal legal service that became difficult, seeing too many circumstances like I grew up with, there was a real headwind that that had an impact on me. So I moved, I started my own practise. I moved away.

Peter McClellan So how long after you left law school did you start your own practise?

Magistrate Douglass Not that long. When I look back, I go, oh gosh. Three years.

Peter McClellan And what did your practise involve? Crime?

Magistrate Douglass It was a very, very busy crime practise and I know for a few years we did more Legal aid work than any other firm in the state. So yeah, it was busy.

Peter McClellan All in the Wollongong area?

Magistrate Douglass Yeah. Nowra or Wollongong.

I did, there was a, was involved with a few murders and manslaughters, some in Sydney. So you know, I used to -

Peter McClellan Did you appear yourself as counsel, or did you brief?

Magistrate Douglass No, no, no. I would be counsel. I did my own District Court sentences and appeals. I used to really like District Court because you were afforded time to be persuasive, in my view. It’s much harder in the Local Court and I’m sure that’s right. It’s almost dot point in the Local Court, but in the District Court, I think you can make … you can be persuasive.

Peter McClellan Well, then, how long did you practise on your own for?

Magistrate Douglass Over 10 years, over a decade.

Peter McClellan And how did you end up as a magistrate?

Magistrate Douglass Someone spoke to me and said why don’t you apply? And I said “Ohh this four or 500 people want that job”. Like you know. It would be difficult. I was considering going to the bar, but I couldn’t afford to have six months out of with no way. So I applied and I got. I was given the job. I was appointed first try so, I was pleased.

Peter McClellan And how long now have you served as a magistrate?

Magistrate Douglass 10 years, 10 years nearly.10 years two weeks ago.

Peter McClellan And whereabouts have you then sat?

Magistrate Douglass All around Sydney. Wollongong. I’ve travelled all the way to Eden. I’ve travelled in all the all the courts between Sydney and Eden. I’ve been to Cooma. Queanbeyan, Goulburn. All around there, Picton, Moss Vale. So yeah, if I’ve been to a fair few courts

Peter McClellan And just give us some idea of your work as a magistrate. No doubt it involves crime.

Magistrate Douglass Yeah.

Peter McClellan What else do you see on a regular basis?

Magistrate Douglass Mainly crime. But there are other orders apprehended violence orders that we often deal with there is some family law consent orders and that magistrates will deal with it and there are some civil matters that we deal with on a regular basis but I think the most important thing to understand about the Local Court is just how busy the Local Court is.

It’s not uncommon for a magistrate, any single magistrate, to deal with between 2 and 300 matters any given month. That will be a mixture of defended hearings and list days list days, so whether you will sentence people or you’ll adjourn them or you know, section 14, mental illness. You know, applications. Sorry, I didn’t mean to refer to a section, but there are mental illness applications, so.

Peter McClellan Now, when, in your time on the bench, I assume you’ve seen a number of Aboriginal offenders.

Magistrate Douglass Yes.

Peter McClellan In the areas where you have been working as a magistrate, have you seen significant numbers of Aboriginal people in trouble?

Magistrate Douglass Proportionally, given that Aboriginal people make up. I think we’re up to about 3.4% of the population proportionately, yes. Yeah, in - it’s area specific. If you go to areas where there are communities you’ll get a disproportionate amount of Aboriginal people in, indeed, lists in those courts.

Peter McClellan And obviously you have been called upon to sentence many Aboriginal people for different types of crimes, and no doubt …

Magistrate Douglass Yes.

Peter McClellan Can you explain, talk a little bit about your approach to sentencing, particularly young Aboriginal people?

Magistrate Douglass Firstly, the law is, really can be quite flexible, particularly in relation to sentence. In that regard, the law recognises the emotional immaturity of a young person to perhaps contribute to them committing crimes. The law recognises that and it is, I think, a very strong mitigating circumstance. It recognises that young men in particular might not mature until their mid 20s, early 30s for some. The law’s flexible. It recognises that young people, because of their lack of development and more likely to commit offences.

Peter McClellan So what does that mean for a magistrates sentencing a young Aboriginal offender? How does that influence what you would do?

Magistrate Douglass I think it’s a subjective circumstance that means it can be used in a way that changes what sentence that you might ordinarily impose. If it’s someone who was, say, 40 and a repeat offender you can try to craft the sentence that addresses the issue that’s causing the offending.

Peter McClellan And is there a pattern to the issues that are causing offending in young Aboriginal people?

Magistrate Douglass Yeah, there’s been a number of them, Peter. Addiction, substance abuse is a big one. Inter-generational trauma is a very big factor. In relation to Aboriginal offending, intergenerational. Poverty. FAS, which is the foetal alcohol syndrome. The fact that they’ve witnessed alcohol, drug abuse, violence. It’s a very, very young person and we’re talking as young as 2, 3, 4, 5, 6 and 7. And they see some horrific things happen in their own families and in communities largely so. Yes, there’s a number of factors that impact.

Peter McClellan Well, underlying that I think as you identify is the intergenerational trauma…

Magistrate Douglass Yes.

Peter McClellan I think you, you would tell us all is probably the primary factor that’s underpinning the lives of many Aboriginal offenders

Magistrate Douglass Yes. And unless there’s early earlier interventions, it unfortunately may continue.

Peter McClellan In many dimensions, in terms of trying to ensure that children don’t have to experience the trauma to the extent that they presently do?

Magistrate Douglass Community-based and community-generated interventions, yes.

Peter McClellan We mean by that Aboriginal community?

Magistrate Douglass Yeah, yeah. Community. Yes, yes.

Peter McClellan And are you encouraged that that might be happening?

Magistrate Douglass I am. I’m, I’m, it’s one of the reasons I’m here. I’m quite hopeful, more hopeful than I was ten years ago when I first became a magistrate. There are some really, or I’ll I’ll say this. I’m encouraged that many are now working towards finding new methods of trying to deal with, or new strategies to deal with Aboriginal offenders. And it’s really encouraging.

It starts in the Children’s Court. It goes through the youth Koori court. Circle courts, of course, there’s the Walama court in the District Court. So yeah, that all of those things give me hope.

Peter McClellan And what about older Aboriginal offenders? What approach do you take when sentencing older people?

In terms of their Aboriginality, how do you, how do you look at their offending in light of their Aboriginal background?

Magistrate Douglass Are you talking about people who have offended over a long period of time and they’re, they’re still in the system or …?

Peter McClellan Yes. So that’s, that’s one we should understand, yeah.

Magistrate Douglass Yeah, so I think you have to recognise that some of those people have become institutionalised, which is really quite sad. I have personally dealt with many elderly Aboriginal men who are institutionalised and that means they feel more comfortable in custody because there’s boundaries, they’re fed. They have a bed. They’re not harmless. As sad as that is, it’s something I have witnessed. Very difficult to deal with if they’ve committed a very serious crime, particularly repeat domestic violence, yeah.

Peter McClellan Which no doubt you see from time to time?

Magistrate Douglass Yes, right across the board, I see a lot of domestic violence. The High Court has recognised that domestic violence is a very difficult area to deal with in relation to First Nations people. The case of Munda, it’s Western Australian originally. It recognises that sending people to an institution such as a prison may not generate the change that people expect. They recognise this as a very violent environment. So you’re sending someone, perhaps for the first time into a really violent, competitive misogynist environment and expecting them to come out and not commit further offences.

Peter McClellan Your own journey through life, have you been able to put your finger on how it was that you were able to change your direction and pursue a career in the law given the family circumstances from which you came?

Magistrate Douglass Yeah, I, I think about it now. I hadn’t in the past. I think there was always, I always wanted things to change. And I’d imagine that’s common amongst many who live in a house where there’s domestic violence and mental illness and trauma. I always have a memory of wanting things to change and I would be quite creative and I’d make up these. This is very I’m talking as early as I can remember. I wanted, I wanted to -

Peter McClellan Maybe six or seven years old?

Magistrate Douglass Yeah, I wanted things to change, so I’d, I think I generated a really good imagination based on that. Because I try and think of better things than I’d make up games and I’d play games always by myself just up the backyard. Look, I was very well fed. I was loved and I think just that desire to change and the opportunity to change was given to me when I was able to go to other groups of people and, and basically become someone else.

Peter McClellan What do you mean by that? Go to other groups of people, at what sort of age are you talking?

Magistrate Douglass 12, 13, 14, I was able to jump on trains and go to Cronulla right from the western suburbs.

Peter McClellan Yeah.

Magistrate Douglass I wasn’t the best surfer, but I really liked it and I made new groups of friends out there and they didn’t know me. They didn’t know I was from that house with the broken fence and the long grass and the broken windows. So yeah, that was that was good.

I was able to hang with different people. So when the people I was associating with started seriously, or started to use drugs, particularly here or, not so much cannabis, but heroin in particular and trips. I said, I was able to sort of sculpt away and be with others, so just having that other, that out.

Peter McClellan So you’re talking about your Aboriginal friends starting on the addictive path or?

Magistrate Douglass No, just any -

Peter McClellan Just a group that you had?

Magistrate Douglass Yeah, just a group of misfits.

Peter McClellan The surfers didn’t have that problem in the same way?

Magistrate Douglass You wanted to sort of. So being off your face on acid is not conducive to you -

Peter McClellan Catching a wave?

Magistrate Douglass Catching a wave. You might think you’ve actually caught a wave but you’re not. Yeah, you’re more likely drowned, so. Yeah. So just having other options or it’s what’s called. You know.

Peter McClellan I understand you still regularly surf. Is that right?

Magistrate Douglass Yeah, I’m back in the water now. Yeah, I, I swim every day.

Peter McClellan Now, you mentioned one of the developments in the courts approach to sentencing Aboriginal people has been Circle Sentencing.

Magistrate Douglass Yes.

Peter McClellan Can you just help us to understand your perspective on Circle Sentencing?

Magistrate Douglass I was at the first Circle court.

Peter McClellan When was that?

Magistrate Douglass 2002. Generally, my view is culturally specific processes are particularly effective. Particularly in the criminal jurisdiction and particularly on younger Aboriginals who live within communities that are pretty tight knit. I think it can have a really big impact on them as a as a process.

Peter McClellan And why is that? What? What do you see as happening in that process?

Magistrate Douglass The offender here is from other First Nations people that say we don’t condone your criminal behaviour. So if the young person is a young person who’s feeling from the other and not, not part of the community generally they start to realise that other First Nations people, just thought, agree with, with what they’re doing. The offender has to confront the offending and its impact on a more rigorous basis,

So we’ve already explained the Local Court, the number of matters we deal with. A Circle court might take an hour or two hours where if they were sentenced in the Local Court, it might take 5 minutes.

Peter McClellan Right.

Magistrate Douglass And they usually, depending on the wishes of the victim, they usually speak to the victim. Or the victim’s family will come and so I say, listen this is the impact of what you’re doing. And what about the kids? This happened in front of the kids and … offenders are more likely to reject a judicial process that’s top down. You go to a Circle court and it runs on the same level. There’s no mahogany inside. It’s the case that we all sit down. Magistrates generally don’t, they won’t wear robes or anything. And the, the Circles that have I’ve been to the community-run. The Magistrate says not much.

Peter McClellan Are magistrates favourably disposed to Circle Sentencing. Do they think it’s good?

Magistrate Douglass I, I think a majority do, yes. Yeah, there might be some that, that hold the view that, well, the reason Aboriginal incarceration rates are so high is because they just keep committing crime. I think that it always -

Peter McClellan That’s a fairly simple proposition.

Magistrate Douglass Yes. Yeah. One trotted out though on occasions. It ignores the colonisation of Australia. The decimation of Aboriginal culture and decimation of Aboriginal lore, L-O-R-E. And the disrespect, I think that many Aboriginal people feel for some of the agencies.

Peter McClellan And of course, magistrates would be seeing these sorts of problems day in and day out. I guess depending upon where they’re sitting.

Magistrate Douglass Yes.

Peter McClellan But as, as your own story makes plain, many great many Aboriginal people don’t go down the troubled path, but achieve an education and build a career that makes a positive contribution to the whole community.

Magistrate Douglass Oh yes.

Peter McClellan Now, you indicated that it’s a pretty time-consuming process compared with the conventional sentencing process in the Magistrates Court.

Magistrate Douglass Yes.

Peter McClellan And that obviously creates resource issues in terms of having magistrates and courtrooms available.

Magistrate Douglass Yes.

Peter McClellan Do you see any modifications to the circle process that could help?

Magistrate Douglass Firstly, I’ll just take a step to the side and I’ll just say that I don’t see it as an alternate. I think it should be referred to as a specialist court. Like other specialist jurisdictions, it is a process that is managed by legislation and I won’t bore your listeners with the details of the sections, but if they’re budding law students, they can find out and look that up. Research is the key.

So, It is a, a process that I think benefits from the time. So I wouldn’t really like to see it shortened. So, to answer your question, I think the longer process is -

Peter McClellan Important?

Magistrate Douglass It’s very, very important. I’m, I always like to say I’m a crockpot, not a microwave and I think that process should be a crock pot, not a microwave.

Peter McClellan Right.

Magistrate Douglass Because the Local Court is like a microwave.

Peter McClellan Yeah, it’s a very good way of putting it.

Magistrate Douglass Is, you know, you, you crockpot it and sometimes the offender’s left to stew with what the community thinks of what they’ve done.

Peter McClellan And finally, can we just talk a little bit about your experience, and therefore your perspective going forward. Obviously your life journey and your professional work have given you an acute understanding of the problems facing Aboriginal people in our community, and particularly their interface with the justice system. Do you have any thoughts about how we might contribute to positive change amongst Aboriginal communities?

Magistrate Douglass I think early, earlier interventions. So you have communities that are still impacted by the incarceration of Mum, Dad, Aunties, Uncles, that incarceration leads to unemployment, poverty within the Community it leads to other government agencies coming into the communities and perhaps looking at removing children and others.

So it just seems to be on repeat and I’d like to think that the court process can be used to change. I think sometimes by the time people have got to the court system .. I won’t say it’s too late because that’s giving up, but it would be nice if they don’t get to us in the first place and these interventions in relation to, to parenting and nutrition and just life skills.

Peter McClellan You see those interventions coming from within the community or coming from outside?

Magistrate Douglass Well, they have to be, have to be founded on community input

Peter McClellan Yeah.

Magistrate Douglass But I’d imagine there’s resources and various things that need to be foundational, I mean it’s if you think that and I’ll use a figure that I’m not 100% sure on, but if we say that. It costs 60, 70, $80,000 a year for someone to be incarcerated. And you look at someone who’s institutionalised and they might spend 10 or 20 years in jail. You start looking at the figures and say wouldn’t that have been better to, to spend …

Peter McClellan Some money up the front end.

Magistrate Douglass Front end rather than the back end.

Peter McClellan Yeah, I understand.

Magistrate Douglass And some of the HMRU, I’m told that the cost is eighty $90,000 a year. Now don’t don’t quote me, but they’re very, very high figures and that money would be better spent through the intervention later. That’s, that’s my view.

Peter McClellan Mark, I think you are the only Aboriginal magistrate in NSW at the moment.

Magistrate Douglass That’s my understanding. I’m the only one that identifies. I suspect there’s one or two that may have links but don’t identify.

Peter McClellan Yeah, and are Aboriginal people employed in the court system to any extent?

Magistrate Douglass Yes, that’s one pleasing aspect. More and more you walk into a court and you bump into someone from within the local Aboriginal community, which is good. The AMS’s, that’s the Aboriginal Medical Services do great areas for Aboriginal employment, which is also pleasing. There’s lots of positive stories out there, but I, I just don’t see them being reflected in the media, which is which is disappointing. But I, I think things are changing.

Peter McClellan And you when you say things are changing, that’s not only the court community, but you say generally for Aboriginal people?

Magistrate Douglass Yes, on one level, yes. But I know that the incarceration numbers have gone up 2% for men, 1% for women and the gap. Closing the Gap is struggling.

Peter McClellan All of those things are true. But the sense that you’ve given us today I think is one of positive change, or the opportunity for positive change to occur in Aboriginal communities.

Magistrate Douglass Yeah, I’m, I’m, that’s why I’m here. I’m. I’m hopeful. I’ve seen a lot of change, particularly in the law.

Peter McClellan Now Mark, what, where do you see those changes occurring? Are they occurring in the leaders of the jurisdictions?

Magistrate Douglass Yeah, right, right across the board. Judge Johnson in the Local Court. Judge Skinner in the Children’s court and even State Coroner O’Sullivan. They are all changing process to be more community minded, it’s really quite pleasing, there’s some, some really exciting things happening children’s court with the Koori Court. The Coroner’s Court’s really trying to break down all the barriers with not just offenders, and that’s pleasing as well.

It’s not … everyone’s looking at how First Nations people interact with the court system, so as victims in the Coroner’s court, of course, there’s the inquests and various things, so there’s lots of positive things happening and it’s starting at the top which is good.

Judge Henson started, 2002, allowing that first Court to circle court. But now it seems like they’ve finally got the message that there should be more funding and they’ve provided some funding, so it’s all positive.

Peter McClellan You’ve been talking about the developments that have been happening within the justice section in relation to Aboriginal people. I think there’s a special group that’s been formed of magistrates to look at these issues. Can you tell us a little about that?

Magistrate Douglass Yes. There is a First Nations Committee which started last year. There’s 14 magistrates and we have a wide brief. It’s a broad assessment of First Nations peoples’ interaction with courts. That’s the Local Court, the Children’s Court and the Coroner’s Court and all the heads of jurisdiction that I’ve referred to are positive in relation to the committees recommendations generally. We’ve had a look at a number of things and in a short period of time we have recommended amendments to our bail precedent form. We’ve recommended amendments to warrants when people are sent to custody that turns on the findings of a death in custody and an inquest in Victoria.

Where one member’s interested in having clerks on each court with the traditional land being recognised being placed at each court. There’s others trying to argue for federal funding. Oh, well, there’s others who will try and are trying to have others look at perhaps when federal funding for Aboriginal medical centres with rehabilitation units, so I’m covering a broad area. Coroner’s Court, Children’s Court. It’s a really proactive and a really, I think, a good committee.

Peter McClellan And that’s a great note to end this discussion on.

Thank you very much for joining us today and we wish you well in your future work in the Local Court.

You have been listening to Magistrate Douglass, who has talked to us about his own personal journey in life, but also particularly about the interface between Aboriginal offenders and the court system.

You have been listening to the Sentencing Council’s podcast. I’m Peter McClellan, chair of the council. Thank you for listening.

 

 

Peter McClellan Hello, welcome to the Sentencing Council podcast, Sentencing Explained. My name is Peter McClellan and I am the Chair of the Council. This podcast was recorded on the lands of the Gadigal people of the Eora nation. We pay our respects to their elders, past and present, and to all Aboriginal and Torres Strait Islander people listening today.

Today, our special guest is the Honourable James Wood who has had a long experience in the law, both as a judge and in various other roles. Welcome, James.

James Wood Thank you. Pleased to be here.

Peter McClellan James, you were a barrister for some years and then you became a Supreme Court judge. How long ago was that?

James Wood 1984 I became a judge.

Peter McClellan That’s a judge in the Supreme Court?

James Wood Supreme Court yes. I’d been at the bar for 14 years, so I was fairly young - 43, I think 42?

Peter McClellan Well, that’s very young for that day.

James Wood Yeah.

Peter McClellan Yeah, indeed. And you were appointed to sit in crime and civil litigation?

James Wood I was appointed the Common Law Division and initially I worked in the commercial part of that division. But I progressively moved more into common law generally and crime, and I particularly enjoyed the crime and that sort of became the major focus over the years.

Peter McClellan Yes, by the time I was appointed to the court, you were pretty much involved in crime all the time.

James Wood Pretty much, yeah.

Peter McClellan And I think along your journey, though, as a judge you took, was it five years out to look at the police service in NSW?

James Wood Yeah, I did. Between 1994 and 1997. Yeah, that was both in relation to police corruption, but also the policing of pedophilia and the concerns that there had been number of pedophiles protected by the police, so it was a two pronged inquiry.

Peter McClellan That must have been an interesting but challenging inquiry.

James Wood It was fascinating, really. I think it produced a change in the culture of the police. So about that time, there was a greater emphasis on education at the Goulburn College and quite a change in approach in policing, I think.

Peter McClellan And then when you finished the Royal Commission, you went back to the Court and I think you became the Chief Judge at Common Law.

James Wood I did.

Peter McClellan And you were in that role for about eight years, I think.

James Wood No, well, about that, yeah, 2005 I left.

Peter McClellan And again you were immersed in crime as the Chief Judge, I assume.

James Wood Exclusively pretty much.

Peter McClellan Trials or appeals?

James Wood Both.

Peter McClellan Did you find one more interesting than the other?

James Wood I preferred trials. I thought they were fascinating and a great challenge and very interesting, particularly my knowledge of policing, to see how well the cases had been investigated.

Peter McClellan And when you left the court, you weren’t at retiring age, you were younger than retiring age and you almost immediately, I think, accepted other full-time roles to do with the law. Is that right?

James Wood Yeah. I started off as Inspector of the Police Integrity Commission as it then was, which had just been created as a result of my Inquiry. And I had a few years there, and then I went on to the Law Reform Commission.

Peter McClellan And full time?

James Wood Full time, yeah.

Peter McClellan And I think you’d been on the Law Reform Commission previously?

James Wood Yeah, I had. When I was at the Bar, so just before I got appointed. I actually had two experiences, come to think of it. Much earlier in my career when I was a barrister, I went with some other barristers and solicitors on an exercise set up by Justice Mears to investigate, I suppose civil law procedure.

It was a time when the whole of the procedure aspect of the Supreme Court was being reviewed. And I was sent to the Francophile countries because I spoke French, to examine the civil law procedural codes and their practice.

So I had some time doing that and then I came back to the Bar and then I was asked by the Attorney to join Ron Sackville in looking at the Motor Accident Compensation scheme which was at that stage a bit of a farce really. People were very easily getting compensated where they had no basis, because the judges were very sympathetic to people who were injured in car crashes.

And we were looking at it – a lot of people who were severely injured, but maybe through fault of their own, were getting nothing out of it. And we started looking at a no fault scheme and it, and although it was clear that wasn’t going to work, we looked at revised aspects to make the system work better to compensate people, particularly catastrophic injuries.

Peter McClellan When was that?

James Wood Good question. Well, just before I became a judge, so I was in the …

Peter McClellan Early 1980s.

James Wood And while I was getting towards the end of that, the Attorney rang me up and said would I like to go on the Supreme Court, and I said yes.

Peter McClellan Was it a hard decision to make?

James Wood Wasn’t a hard decision, I really … I was interested in the work at the Bar, but I had three young kids and I was working, you know, every night, all weekend. And I decided really this wasn’t a great, great life.

James Wood And also I found that so far as my commercial clients were concerned, I really didn’t particularly like them or their attitudes.

Peter McClellan That can be an issue for a barrister, I assume.

James Wood Yeah, it was a real issue. I was quite happy to go and do something which was more productive, yeah.

Peter McClellan On the other side of the fence.

Peter McClellan Well then when you, when you left the court and went to the Law Reform Commission, you spent a number of years there, I think as the chair of the Law Reform Commission.

James Wood I did, yeah.

Peter McClellan But that didn’t end your journey through various legal institutions. You went from the Law Reform Commission to the Sentencing Council. Were you doing both jobs at the same time?

James Wood There was a bit of overlap. I replaced Alan Abadee, who had been, he was the first judge with the Sentencing Council. When he retired, I spoke to him about it because he’s a friend, close friend of mine. And I thought that sounds interesting, so I did that. I had probably had enough of law reform at that stage, too. Although we’d got a number of things going, particularly did a lot of work, a lot of work at the end in relation to sentencing and bail and that sort of thing. So it was a probably a natural move across, yeah.

Peter McClellan Over to the Sentencing Council. And you were some years, some few years in that role, only passing it over to me a few years ago.

James Wood That’s right.

Peter McClellan But that again didn’t end your involvement in legal institutions because at some stage along your journey you became the chairman of the Parole Board, is that right?

James Wood That’s right, yeah

Peter McClellan Was that a single job you were doing or were you doing other jobs with it?

James Wood No, that was the only job I was doing at that stage although … can’t remember now, have to go back to work the dates out. But somewhere along the line between the two jobs I also got involved in conducting, well two Inquiries, one into the child protection system in New South Wales and the other then into sports integrity, which I was assigned really by the Commonwealth to lead an inquiry into sports integrity, both doping and match fixing and so on.

Peter McClellan Gambling associated.

James Wood Yeah, yeah. I’d have to go back and look at dates to see how they overlapped, but … And also in the meantime, while I was on the court I’d spent time each year sitting on the Fijian Court of Appeal, which yeah, which is work I really loved.

Peter McClellan That’s right, I’ve forgotten that.

James Wood I’ve always been very interested in work overseas, I guess. And if I’d had my time again, I might well have looked to … to have gone into foreign affairs or something else, but I really did, because I spent a lot of time …

Peter McClellan Well, the law would have been the poorer if you’d done that.

James Wood Well, maybe not. I spent a lot of time both at the Bar, but also in the Court in an advisory role. And especially most of the best ones from my point of view was East Timor. Just after the independence where with the Rapporteur from Singapore, we set up, we started training people to become judges and lawyers and prosecutors in the justice system. That was the most fascinating, and I suppose, satisfying period of my life, really.

But I’ve been to, all round, all round Asia, Vietnam, Indonesia, China. And also spent some interesting time in Bahrain advising them on how to handle expert evidence.

Peter McClellan Oh yes, did they take your advice?

James Wood I don’t know in the long run. But they were very keen to establish a commercial court for the region and they really didn’t know how to handle expert evidence or mediation and that sort of thing where they got big commercial disputes, particularly engineering type disputes.

Peter McClellan Now I think you also had an international role in sport as well?

James Wood Yeah, well, I’ve …

Peter McClellan Tell us about that.

James Wood I had spent six years at the Parole Authority and then a chance arose to join the World Anti Doping Agency based in Canada and it had something I really couldn’t resist because I actually had finished the integrity sport inquiry at that stage so I knew a fair bit about the anti-doping challenge and the Russians and so on. And this was at a time when we were dealing with the Russian manipulation of their doping results. So I did that. That meant initially meant overseas travel, but then COVID struck. And I ended up, because I was the only one this side of the world, ended up doing all this work at night starting at 10:00 o’clock at night to 5:00 o’clock or 4:00 o’clock in the morning online, but very interesting. I led the Compliance committee, so we looked at country compliance with the Code.

Peter McClellan That would be a big task.

James Wood It was a big task, yeah. Very good committee, and that WADA has got an amazing organisation. They really are the most, one of the most effective and efficient bodies I’ve ever seen.

Peter McClellan Well, then what I really want to talk to you about today is parole. The podcast series has taken every listener, if they’ve followed every episode, through the justice system to the point where people have ended up in jail and been sentenced. And we’ve had a brief discussion along the way about the possibility of parole and how sentences in many cases are framed with a non-parole period and a period, prospective parole period.

So the starting point for this is I think you’re still a member of the Parole Authority. Is that right?

James Wood I would have had another year with WADA, but my wife got very sick and I then went back to overseas travel probably eight trips a year and I just couldn’t leave for that period of time, so I had to resign from there. And I was able to get back to the Parole Authority.

Peter McClellan And you’re sitting on the Authority frequently. Or what’s the …?

James Wood Yeah, at least one day. Well, at the moment, one day a week. That means a day out there at Parramatta. And also it requires a full day’s preparation on the material online.

Peter McClellan So you’re doing…

James Wood That’s two days a week commitment, two days.

Peter McClellan You’re committed for two days a week.

James Wood Yeah, but this this week I’ve actually got four days because I’ve got two hearing days.

Peter McClellan Now tell me, how many members of the Authority are there.

James Wood That’s a good question. I’d have to count them up but it divides into different groups.

There are judges or former judges actually who preside over the meetings. And then there are … every meeting has five people, whether it’s a private meeting where we decide, make parole decisions. And five people for the review hearings which review our decisions.

And there’s, each one is presided over by a former judge and then sitting with them is a serving police officer, a serving corrections officer and two people who have been appointed for terms of three years from the community.

Peter McClellan Right. Presumably with some knowledge or understanding of the criminal justice process.

James Wood Not necessarily. They’ve come from all walks of life. The intention was to have community input from people who really have had no impact with, no contact with the criminal law, but have experience of life and understanding of how things work or how the justice system should work.

Peter McClellan Now I think we should just talk in broad terms when an offender is sentenced, and sentenced to a term, a modest term of imprisonment, there may or may not be a parole period provided?

James Wood There are fixed terms that don’t have any parole periods.

Peter McClellan No, no parole period at all.

James Wood That’s only minor.

Peter McClellan That might be one year?

James Wood Yeah, that wouldn’t be, not normally more than a year, fixed term.

Peter McClellan And then, if someone’s sentenced, say, to three years, would the judge normally provide a non-parole period?

James Wood Almost invariably, I can’t think of any circumstances where they wouldn’t provide a non-parole period.

Peter McClellan And I think for the term less than three years, the Authority doesn’t have a role to play in relation to that person being released to parole?

James Wood Not in relation to release. It’s actually any sentence of up to three years, including three years, there’s a non-parole period set. And at the end of that non-parole period, then the offender is released without any consideration by us.

However, there’s a couple of situations where we can intervene. Sometimes if the person is, I suppose, broken down in custody or has developed mental health issues, sometimes the government will apply to us to revoke their parole pre-release.

We don’t see those people, we don’t see anybody who’s been dealt with in those three year sentences with non-parole periods unless they later, after release, breach their parole, then maybe they come back to us.

Peter McClellan So if you’re given a sentence which has a non-parole period in it as the offender …

James Wood Yeah.

Peter McClellan Does that mean you cannot be released from custody until you’ve at least fulfilled the non-parole period?

James Wood That’s the general principle, but there is an exception to that because there’s a procedure for re-integration home detention. Which, if that person has done very well in custody and their offending was nonviolent, then Community Corrections can bring an application to us to let them be released six months before their parole release date to home detention. If they do that, they’re placed on electronic monitoring, they live at home and they can live a normal life otherwise.

Peter McClellan And can they go to the shops and the theatre and so on?

James Wood Yeah, do what they like, work and they can ... But with electronic monitoring, there’s some control of what they’re doing.

Peter McClellan How does that work? Just in general terms.

James Wood Well they’ll have schedules, so they need to report where they’re going to go, what they’re doing.

Peter McClellan But how do you monitor them electronically?

James Wood There’s a, well that there’s an electronic bracelet on their ankle and that goes to a control room that monitors where they are.

Peter McClellan Satellite or something is it?

James Wood Yes, and it picks up the moment that they remove the anklet, but also picks up when their battery is going flat. And if the battery’s going flat, they get a telephone call, charge your battery, or you’re in trouble.

Peter McClellan OK. And can someone sit at a screen and see where that person is?

James Wood They can’t see, but they know well … They can’t actually see the person, but they can track where they are.

Peter McClellan They know where the bracelet is.

James Wood Yeah, they know where the bracelet is.

Peter McClellan And how many people per year would roughly, would get released earlier than their parole period?

James Wood Oh not a great number of people. Surprising enough, it’s mainly people who have had drug offences, but they’ve got to behave very well in custody to get there.

Peter McClellan To get there.

James Wood And very often they’re first offenders and then the other reason they get them out early is that there’s no program that they can really do because often they don’t have a drug problem of their own.

And also some of the fraud people do get out the same way too. And then if they behave well in that six months pre parole date, then they come back to us with the report, and if they’re OK, we then say, OK, you can transition to parole.

Peter McClellan And if someone’s placed on parole, what does that mean in terms of the way they can live their lives?

James Wood Well, so long as they behave themselves, it doesn’t have a huge intervention, except that the parole conditions can include … well, they do include always that they report to the Community Corrections from time to time, whenever it is required of them, just to make sure they’re OK, they have to report any change of address.

If their parole conditions include conditions that they see a doctor to get a mental health plan, or if they are required to do some program in the community, AOD service normally, they’ve got to comply with those conditions.

Peter McClellan And does someone check to see if they have complied?

James Wood Yeah, they do. Community Corrections people keep an eye on that because they have to report, as I say, and if the person doesn’t go to a drug and alcohol service, then the drug and alcohol service notifies Community Corrections.

And if they breach those conditions, then they come back. Then Community Corrections sends us a report and asks them to revoke their parole, which we will do.

Peter McClellan Well, let’s come back to that in a minute.

James Wood Sure.

Peter McClellan But going back in time, let’s assume we have an offender who was sentenced to a total term of nine years and just pulling a number, say six years non-parole, let’s assume that’s what happened.

Peter McClellan The person’s in custody, the Parole Authority is notified that their parole period is about to …

James Wood We track it, but.

Peter McClellan You track it independently of any other authority.

James Wood Yeah, yeah.

Peter McClellan Right.

James Wood And it’s 60 days, at least 60 days before they come up for parole, we start getting reports from Community Corrections as to how they’re going.

Peter McClellan How they’re going inside the jail?

James Wood Inside the jail and checking whether they’ve got accommodation to go to, which is always an important consideration, whether they have any family support, whether they need to get mental health treatment and so on.

Peter McClellan So you have officers of the Authority actually in the field doing the research, I mean?

James Wood They’re not our officers, but they’re Community Corrections staff.

Peter McClellan I see, which are the prison people.

James Wood Prison people, yeah.

James Wood So they prepare a comprehensive pre-release report.

Peter McClellan Which comes to …

James Wood Comes to us.

Peter McClellan And comes to what a group of you?

James Wood A meeting, yeah.

Peter McClellan Chaired by the judge, with the other four.

James Wood That’s right.

Peter McClellan That’s a private ….

James Wood That’s a private meeting. Yeah, yeah.

Peter McClellan Does the offender have any opportunity to make submissions to that meeting?

James Wood No, not at that point. Well, sometimes they will send us a letter of support from a family member or a letter saying, look, I’ve got accommodation and employment, etc. They can do that and we’ll look at it. But primarily the material we rely upon comes from the Community Corrections officer.

Peter McClellan So the five of you sit and meet and have a report, and on the basis of that report, you make a decision.

James Wood Yeah we make a decision.

Peter McClellan Can that decision be that that person goes to parole?

James Wood Yeah, it can be, or it can be either refused or they go to parole. We give reasons for whichever decision it is.

Peter McClellan Right. And if they go to parole, you impose the conditions?

James Wood Yes. Yeah.

Peter McClellan So your decision would be, this person can be admitted to parole but must comply with these various conditions?

James Wood These conditions.

Peter McClellan And then presumably that just goes through the system and they’re released?

James Wood They are, yeah.

Peter McClellan And then if someone comes up in this process, but the report is adverse, or the five of you don’t think the person should be released, what happens then?

James Wood Then they can, we give them a review.

Peter McClellan And that decision is communicated to them.

James Wood Yes.

Peter McClellan They’ve been refused.

James Wood Then they have the choice of requesting a review. If they want a review, then it’ll come back to us in a court hearing, public court hearing.

Peter McClellan Right, with advocates and…?

James Wood Yeah.

James Wood The inmate appears on the AVL screen from the prison.

Peter McClellan Right.

James Wood And there’s a lawyer, usually from the Prisoners’ Legal Service to represent them.

Peter McClellan That’s government funded.

James Wood Government funded.

Peter McClellan And that review occurs in a public forum, I assume, a courtroom?

James Wood Just like a conventional courtroom and depending on the seriousness of the case, sometimes they’ll take evidence from psychiatrists or hear submissions from victims, and so on.

Peter McClellan So you’re gathering effectively more evidence to see whether or not the decision you originally made should stand or can be varied.

James Wood Yeah, yeah. In most cases it doesn’t really add anything new, but sometimes it does.

Peter McClellan And what about a crime where there’s a victim? Do they have any role to play in the decision as to whether or not the offender should be given parole?

James Wood They have some role. There’s a Victims Register, which anybody who’s a victim of crime can register themselves and then sometimes they can make effectively a submission in writing, saying why they don’t want the person released and also asking for non-contact conditions and area restrictions that are places where they wouldn’t want the offender to go for their own safety.

James Wood They can appear at court and they can make oral submissions in court. That’s fairly rare, but it does happen.

Peter McClellan Now, you may not have this immediately to hand, but your sense of it will do. How many people are declined parole on the first occasion when they might be eligible?

James Wood Well, like you said, it’s very hard for me to know.

Peter McClellan I mean, we’re talking about a significant proportion, don’t get parole initially?

James Wood No, I think the vast majority, the majority, I won’t say the vast majority, the majority would probably get parole at the first hearing because in that regard, I’m talking about the people with shorter sentences. The ones who very often, most often don’t get parole at the first time, are murderers or people with long sentences – sex offenders and other people, particularly where they haven’t done any programs to address their offending behaviour.

Peter McClellan And whether at the review stage or at the initial stage, someone’s released to parole, we discussed the fact that conditions can be imposed by the Authority on that person?

James Wood Yeah.

Peter McClellan If they breach a condition, what happens?

James Wood Depending how severe the breach is, if it’s a serious breach, it comes back to us with a recommendation for a revocation of the parole.

Peter McClellan But the person remains at large until that comes back to you?

James Wood Well, yes. And when it does, they don’t get back into custody until we revoke their parole.

Peter McClellan Right, yeah.

James Wood Sometimes they get a warning. We can give a warning. But very often now Community Corrections will give a first warning.

Peter McClellan So they issue a letter or some other means of communication. If it’s necessary for the person to come back before the Authority, is that another public hearing or how does it operate?

James Wood Once you make a decision to revoke parole, then a warrant is issued and they’re picked up and they’re put into custody.

Peter McClellan Right.

James Wood So they’ll be in …

Peter McClellan And they have no chance to resist that decision at that stage.

James Wood No. But so once we revoke, they stay in custody until they have their review hearing. That’s why they come in front of us on the AVL screen from whichever correctional centre they’re in.

Peter McClellan And what sort of decisions can the Authority make at that stage?

James Wood We can confirm the revocation.

Peter McClellan Which means for all, for the rest of the period, they can’t get parole?

James Wood Yeah, well, I come back to that in a minute because it’s a bit complicated. Or you can rescind the revocation on the basis that they can satisfy us that the reason they breached was a mistake or they were sick or COVID applied, or they lost their phone.

Peter McClellan Some rational reason?

James Wood Some rational reason. We make sure, however, if we’re going to rescind, they’ve got somewhere safe to go to and we can give them a little lecture as to the need to comply with their parole, otherwise we’ll see them again.

Peter McClellan So that’s, that’s the person who manages to get through the system and released?

James Wood Yeah, yeah.

Peter McClellan But the person who you don’t release at that point. Can they come back and ask for parole?

James Wood They can eventually. Because, because of a fairly tough law that was passed some years ago, once your revocation has been confirmed by one of the meetings, you can’t apply again for 12 months.

And that’s so harsh that we managed eventually to get an exception. If they can establish circumstances which explain away the problem and indicate that they’ve done a program or they’ve managed their mental health or whatever, they can come back, or if they’ve received a short sentence, a fixed term short sentence, we can then let them back out again. So they can apply for a further review.

But unless they can produce something like that to indicate that it’s fair they go back into parole, they will stay there until either the end of their sentence, or the, the 12 months period.

Peter McClellan Yes. Well, the revocation for 12 months then automatically …

James Wood After 12 months, they could then apply again.

Peter McClellan They can apply again. Yeah, but, but they may not be granted parole even at that stage.

James Wood They may not. But it’s, I think if someone’s been revoked for a breach, you would normally, and you confirm it, normally, next time round you’d let them out because they’ve taken a year’s punishment effectively for the breach.

Peter McClellan And learnt a lesson.

James Wood And they’ve been paroled previously and it’s been a pretty solid lesson for them not to breach again.

Peter McClellan Sure. Now what about someone who is released to parole and then commits another offence?

James Wood Yeah.

Peter McClellan What happens?

James Wood Well, that’s a breach.

Peter McClellan Does the Parole authority have a role to play at that stage or is it left with the police to prosecute?

James Wood The moment they are charged with an offence, then the police let Community Corrections know, and they’ll put in a breach report and then we will revoke them automatically, even though they haven’t yet been tried.

Peter McClellan But they may have been taken into custody by the police in any event because of that crime.

James Wood Yeah, yeah, yeah, that’s right.

Peter McClellan But then you, you maintain control in what sense after that?

James Wood Well, if they if they’ve got an offence and they’ve got a court date ahead, then we will stand the matter over until we get a result from that court hearing.

Peter McClellan So let’s assume they get another sentence imposed at that court hearing.

James Wood Yeah, well.

Peter McClellan How do we unscramble the egg in relation to parole?

James Wood If they got a new sentence and it’s a sentence of imprisonment, then we will simply confirm the revocation and they will stay in, in prison and serve the new sentence. Depending how long it is, they can apply for manifest injustice by saying was a short sentence and I’ve now served it, so let me out again.

Peter McClellan Right. What about if they’ve committed a really serious crime when they’re out on parole?

James Wood Yeah.

Peter McClellan And they say they get a long sentence that goes beyond the sentence they were serving, what happens then?

James Wood That’s the end of them because we don’t, we don’t have any jurisdiction. If they get a, once a person is revoked, their potential release date is extended out. That’s called the balance of parole. It’d be longer than the original expiry date because the time they’ve spent out, they can’t use. They have to, have to earn it in this period between the expiry date and the time that they’ve been out.

If the new sentence takes them past the balance of parole, then we have no jurisdiction to consider the case.

Peter McClellan But you may get involved when the second sentence comes up for a parole.

James Wood Well, yes, but depending what it is. If it’s a short, if it’s a three-year or less sentence, we wouldn’t see it again.

Peter McClellan You may not see it again. But if it’s a longer sentence because it’s a serious offence then it’ll come back to you for the 2nd offence.

James Wood Yeah.

Peter McClellan And it’s well, it’s a new case.

James Wood New case, yeah.

Peter McClellan Well, tell me what number of people go through the Parole Authority in a year? Have you got any idea how many?

James Wood I don’t have the numbers to my fingertips at the moment, I did know in the past when I was the chairman of the Parole Authority, I looked at numbers very carefully, but now I just do my bit.

Peter McClellan Do your part.

Peter McClellan But we’re talking in the hundreds?

James Wood Oh yeah.

Peter McClellan Or thousands?

James Wood Thousands. Because we’re not only dealing with prison sentences as such, we’re also dealing with intensive correction orders. I don’t know if you’ve been touched on those?

Peter McClellan We have touched on those, but I was going to ask you about other things, which the Authority does, and that’s one of them. Is there any other role the Authority has in the criminal justice system?

James Wood Not really. Sometimes we become aware of proposals to amend the system and hopefully we are consulted as to whether what, whether they think, whether we think it’s appropriate or is going to cause problems.

Sometimes we have to intercede on our own behalf, if we haven’t been officially notified. Because it is a complex system and it works, to my mind, pretty well. And if someone interferes without really understanding the process, it can go seriously wrong and quite frankly, it did go wrong when they introduced the 12 months rule.

Peter McClellan Was too harsh?

James Wood Too harsh.

Peter McClellan Well, then, let’s talk about intensive correction orders from the authorities.

James Wood Yeah, I don’t have too much contact with them, I have to say. I’m mainly dealing with the decisions whether to revoke or to grant or to refuse parole. The ICOs are very demanding, like I do know that the Authority at any given meeting, considers often up to 100 cases.

Peter McClellan From what point of view are they considering?

James Wood Whether to breach them.

Peter McClellan Because there’s been a report of a breach.

James Wood Yeah, yeah.

Peter McClellan So just in case anyone listening missed the earlier episode we’re talking about a form of sentence but served in the community, subject to conditions.

James Wood Supervision and conditions that they have to comply with.

Peter McClellan And the Authority, again, it is the Authority that has the capacity to discipline or revoke that person’s capacity to serve their sentence in …

James Wood That’s correct.

Peter McClellan In the community.

James Wood That’s certainly correct.

Peter McClellan And you say that’s complex and difficult work.

James Wood It is, it’s more demanding, I guess, and a bit frustrating because a lot of the breaches that bring them back before us are pretty trivial and silly breaches. And for the most part people go back onto their ICO. There’s a fairly small percentage that actually lose their ICO, and end up with another prison sentence.

Peter McClellan Who brings the breach before the Authority?

James Wood Again, Community Corrections because they’re the supervising body.

Peter McClellan Right.

Peter McClellan And someone who’s again on an ICO as it’s known, who commits a crime while they’re on their ICO, do they go effectively through the same process as if they’ve been out on parole?

James Wood Well, not … if they commit another crime then they’re going to be locked up and in the, in the general criminal justice system.

Peter McClellan So they’d be arrested and locked up and then charged or tried and so on. What happens to their ICO? Does that …?

James Wood That effectively disappears, it is revoked. We can cancel it, the ICO and we can also reinstate it if at a hearing, they come back and explain that, well, sorry, but I didn’t understand what I was doing or something that’s a good excuse, they can have it reinstated.

Peter McClellan Now James, as we mentioned, when we started this, you’ve had a long experience in the law. But also a very significant involvement in the Parole Authority and the work of the Authority which continues today.

As far as the Authority is concerned and the way it’s structured and the way our system operates, I assume you’ve had the opportunity to compare it with systems in other states, maybe other countries?

James Wood Look, they’re very different. I really haven’t with other countries, but the other states are set up quite differently. And in some states, all the parole work is just done by a judge.

Peter McClellan In the in the ordinary course of the judge’s work.

James Wood Yeah. And in relation to federal offences, it’s really done within the Department. Ours is, I think, on any account the most sophisticated system.

Peter McClellan Because, why is ours more sophisticated say than Victoria?

James Wood Well, I guess it’s the way it’s been planned the way it’s been developed, I really wouldn’t be able to say. I think in some ways people regard our system as fairer and as less judgmental in that we have much more room to move.

Peter McClellan Right.

James Wood Whether we’ve had a bigger population of criminals, but from the very inception, I think it’s been structured in in a way which works well.

Peter McClellan As I understand it, BOCSAR, the authority that collects statistical information about crime, amongst other things, they’re fairly satisfied from their work that parole provides real benefits to the community.

James Wood Right.

Peter McClellan In reintroducing people who’ve offended back into the community to become effective citizens. Is that your understanding?

James Wood That’s my understanding. We can’t let anybody out when we’re making a parole decision unless we’re satisfied that doing so is not going to prejudice the interests of the safety of the community. And the fact that we do let people out means that we’re satisfied that they’ve done pretty well in custody and they’re not going to pose a risk.

But I have had good experiences with people that …The one man I sentenced for a murder, who, in the course of his time in custody, married, had children, got a university degree, had full time employment and you couldn’t get a better situation if anybody … and that’s not uncommon because the important thing I think we have, which I’m not sure the other states have, is that towards the end of the sentence, if you progress to a good classification and behave yourself, you can get day release, you can get weekend release and you can get works release and also you can get earlier. Apart from that, you can work on community projects and they all take you out of the prison.

And the people with the longer sentences, for the most part, unless they’re sexual offenders or unless they’re people who are subject to deportation, will get work release and very often that work release will turn into permanent employment once they’re out. And those people, at that stage, for the last couple of years of that sentence may effectively only spend a few nights actually at the prison because they’re out on the Monday to Friday to work, they get weekend leave and so on. And that’s a huge incentive.

And there’s a lot you can do in prison if you’ve minded to. You can get university degrees, you can get a TAFE trade, indeed, you can work in a prison as an apprentice while you’re doing your TAFE studies. You can get educated, which a lot of people do. A lot of people come in, a vast number I’d say, they’ve come in without any numeracy or literacy skills and can get an education. And you can do these programs which will address your offending behaviour, some quite intensive, some less so. And there are opportunities there for someone who is prepared to cooperate. If you don’t cooperate of course, you’re not going to get those benefits, and you’re not going to get out.

Peter McClellan So with all of your years of experience, you are satisfied our system is working pretty well.

James Wood Yeah, yeah, I think, I believe that. People are always going to reoffend and but if you compare the people who reoffend seriously, against the number of people who are going through the prisons, which I don’t know the current figures, but there’s something like 15,000 people usually in custody, of all stages of seriousness and classification, and so on, and they don’t all come back by any means.

Peter McClellan Well, James, the community owes you a real debt of gratitude for the contribution you’ve made over many years.

James Wood Thank you.

Peter McClellan It’s greatly appreciated by all of your colleagues and also many in the community. And thank you for joining us today for this podcast.

James Wood Well, thank you very much, I enjoyed it.

Peter McClellan You’ve been listening to the Honourable James Wood, a special guest in the Sentencing Council’s podcast series.

This podcast, Sentencing Explained, is brought to you by the NSW Sentencing Council. The teachers’ guide to the podcast, and further information about the Council is available on the Sentencing Council’s website. I’m Peter McClellan, thank you for listening.