No Conviction Recorded
In the United Kingdom in September 2017 a 24 yr old Oxford medical student and aspiring heart surgeon, Lavinia Woodward, was spared a jail sentence for stabbing her boyfriend with a bread knife in a drug-fueled drunken rage, because, as the presiding judge Ian Pringle stated, it could ruin her promising medical career0. Apart from the fact that Oxford university might wish to know if they were going to send out into the world a medical graduate who had a penchant for stabbing people when drunk, one might wonder if a 24 year old labourer would receive the same treatment for stabbing his girlfriend in a drunken rage.
Somewhat similarly in Australian, in all states bar Victoria, it is possible to be found guilty of a crime, albeit not capital, paid “your debt to society” with a fine, placed on probation or a community correction order, and still be able to publicly declare you have a clean criminal record1. In Victoria in a similar situation, you may honestly claim you have no convictions and hope your prospective employer, fiancée, landlord or foreign consulate where you are attempting to obtain a travel visa, etc does not check, in which case no conviction will be found, but a record of a crime committed, with sentence, will be.
The reason for this strange occurrence for official, institutional cover-up is that it prevents petty criminals2 from suffering,
the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects3
To quote an Australian law firm,
For many people the issue of whether the Court imposes a conviction or non-conviction is the most important issue in their case. Without conviction often means they can keep their job. A conviction can impact, most obviously, on employment, housing and travel4.
Of course, one might ask if it isn’t a fundamental aspect of the criminal justice system in a liberal democracy that justice should be very much a public affair where (except for children) nothing remains hidden and the adage “the truth will out” is to be respected. The seating arrangements of practically all courts of law will always show certain areas put aside for those of the public who may find an interest.
Be that as it may, there appear to be two serious practical concerns about this policy.
Equal justice for all
Imagine a hypothetical situation where an age pensioner and his 23yr old nephew go out celebrating his university graduation one evening, imbibe too much alcohol, and end up being arrested for affray after an altercation at closing time at the hotel. On coming before the magistrate, the nephew pleads that he be given a sentence but no conviction recorded because he now wishes to apply for work in his accomplished field of study, but a criminal record might well limit his options. After granting the request the magistrate asks if the uncle also wishes to plead a non-conviction.
But what can the pensioner claim? He lives in his own home, is married, has given up foreign travel and hardly has any intentions of beginning a new career.
So what is the result? Two adults with clean criminal records commit the same crime in the same circumstances but one gets a conviction while the other doesn’t.
Although ignorant of your ways, I still know better
When a judge rationalises that the minor criminal record of a potential employee must be kept secret from the employer, there appears to be some assumption that the employer is bound by some unstated, hard and fast, inflexible law that he/she regrets exists. Perhaps the judicial officer is also thinking that the fiancée is hoping against hope that the prospective marriage partner has no record, not because it would make them a different person, but because of strict unbending rules of his/her church or family. Also, apparently, all foreign nations’ rules for granting visas derive from rigid, antiquated constitutions of decades ago, where absolutely no account is made for the beliefs and values of modern times.
But is that the case? When a judge declares5 that because the crime committed was only minor and thus in no way should affect the offender’s future prospects, why does it not occur to him that future fiancées, employers, landlords, consulates etc might also think the same? A duly revealed criminal record does not simply say the person in question is a criminal. It reveals particulars of the number of crimes, allowing the reader to judge for themselves the person described.
For that not to be enough but instead, the court to make the call, in the full knowledge it will never have to suffer the consequences of a bad decision, reveals that the arrogance of the law in this respect is truly astounding.
What would be the response of a judge to a woman, either religious or not, who, considering someone’s ethics to be highly important, found out she had married a man who had a conviction for theft or perjury? Would he tell her that as he, the judge, didn’t take just one crime to be that serious, she should also treat it the same?
Landlords of frail build or sturdy, owning expensive residences or basic, might want to know as much as possible the character of those rental applicants, not only to decide if they should trust their property with them, or to share their home in the case of a lodger, but also to give confidence to other prospective renters who may be concerned to know what type of fellow tenants will be sharing their address.
When foreign countries draft their rules for granting visas, can it not occur to the court that there might be thought-out reasons why those rules are such as they are. Our government officials seem to act as though they know better and yet how on earth could they even appreciate the dynamics of the customs and practices of all foreign nations and the reasons why each one makes their immigration laws as they do?
0. John Simpson, ‘Student stabber too bright for jail.’ The Australian, 26th Sep, 2017
1. Unless your declaration is to certain government departments associated with ‘working with children’ certificates, employment with the police or courts, etc.
2. Even though the indulgence is ostensibly a one-off for those fundamentally good character types who have happened to have made a unique bad decision to be much regretted, case notes reveal a ‘guilty but no conviction’ finding being granted more than once to the same offender.
3. Section 8, 1C Sentencing Act 1991, Vic
4. DoogueO’BrienGeorge https://www.criminal-lawyers.com.au/criminal-penalties/without-conviction
5. In fairness, judges are only following legislation, although one wonders if this was not case law created by judges, before becoming statute law.
The reason always given in support of this trend (to restrict the influence of juries) is that it is cheaper and more efficient to do away with juries. Even if this be so, of which I am not convinced, the reason misses the main point of juries - the spreading of power in the community. The more widely spread the exercise of power is, the healthier, it seems to me, to be. Retired NSW Supreme Court judge Bill Priestley#
I do not know a trial judge who does not have the highest degree of respect for the deliberations of the jury. Although there are occasions when doubts have been expressed about the results of jury deliberations, the overwhelming majority of comments that I have heard from judges over the years is praise for the diligence, efficiency and accuracy of jury deliberations. Retired NSW Chief Justice of NSW James Spigelman AC*
It is an understatement to declare that the public is often quite unhappy with sentences handed down to convicted criminals by judges. The impression, hard to ignore, is that judges are a segment of society greatly removed from the norm. The beliefs and values developed by those on much higher incomes which afford they and their families the secluded protection of neither living nor working in average crime rate areas are not necessarily the same as those who have either experienced a physical assault first hand or know someone close who has.
It is not so much that there are occasional bad sentencing decisions where the harm to the victim is exacerbated by the insult of no tangible public condemnation of the perpetuator, who is then free to continue his criminal pursuits. What is worse is that the public in these cases will lose significant confidence in the judicial system as a whole.
A simple solution to this is to remove from the court the powers of sentencing and hand them to the people’s representatives; the jury.
Even in future cases where seemingly soft sentences were granted on occasion, the public would have more reason to believe the sentence in the circumstances was correct considering it was after deliberation by men and women representing up to twelve differing viewpoints in society. This would be far more placating than the decision by one possibly bigoted individual who was not forced to talk his thoughts over with anyone else and may well base an outcome, waited for by many, on nothing more than his or her own prejudices.
How to Apply
This idea was actually part of the policy platform of the Liberal Party at the 2007 NSW state election. It was susceptible to criticism because no detail of it’s application was given and it was assumed that if a jury failed to agree unanimously (a reasonable possibility), then a new trial would be both impractical and expensive.
What follows is a suggested procedure for a jury to set a sentence which would not only encourage deliberation but would lead to a high probability of a result.
Specifics of sentencing:
- At the sentencing phase of the trial, after victim impact statements and the opportunity for both sides to present argument has been given, the jury then retires (again) and is given one unit of time to come to a unanimous decision on what the sentence, within statuary limits, should be.
- A unit of time would be decided by the court as either: two hours, four hours, eight hours, or whatever should be appropriate depending on the severity of the crime.
- If not agreeing they must sit out the full unit before returning to court.
- The judge then gives them another unit of time to come to an eleven / one majority1.
- If still no agreement after expiration of time they are then given another unit to come to a ten / two majority.
- If need be, this will go all the way to a seven / five majority which in all probability would be ultimately agreed upon considering the jury unanimously thought the defendant was guilty in the first place.
Responses to Comments and Questions about Jury Sentencing
Is there any precedent of jury sentencing?
- Jury sentencing for both death penalty and non-capital crimes has been practised in various of the United States since its independence in 1776. Currently the majority of the states have a jury decide on the death penalty while a minority decide on lesser felony crimes.
- In French criminal trials for serious crimes the sentence is decided by consultation between the judge and the jury.
- Under the saiban-in (‘lay judge’) system in Japan, six jurors join a three-judge panel to decide on both the verdict and the sentence.
Would the sentence given by a jury be subject to appeal?
- Appeals to a jury sentence would be allowed on issues of law. eg.
- was the sentence within the statuary limits?
- was relevant evidence entered at the sentencing stage which was later found to be false?
- was a juror interfered with?
In such cases a jury would have to be empanelled to review the sentence. However it would be ridiculous to allow an appellate court, comprised of judges, to overrule a sentence merely because they thought it was either too lenient or too harsh, as this would nullify the very concept of taking the sentencing process out of the hands of the judiciary and returning it to the people. Legislation might be enacted to grant a court of appeal the power to empanel a new jury to review a sentence, on no other reason than the severity or leniency of the sentence given, if the court’s decision was unanimous.
Who would decide sentence when the defendant pled guilty and there was no trial?
- As in those American states that practice jury sentencing, a jury would be empanelled solely to deliberate on the appropriate sentence.
‘Then president of the Law Council of Australia, John North, pointed out that sentencing often takes place 12 weeks after a verdict, when jurors may have read about the case and discussed it with their friends. "Unless the process took place almost immediately, it would be impractical."’2
- The primary reason the jury cannot take in external information about a current trial is that they may find out about previous convictions or even charges brought against the accused or otherwise evidence of bad character. This is denied the jury because it is claimed it may prejudice the jury into giving a false verdict. However in the sentencing phase of a trial, after a guilty verdict has been brought in, the decision maker (currently the judge) is presented with all such information and all arguments by the prosecution, as well as victim impact statements, as to why the felon is not a civil person and is deserving of punishment. So as all ‘out of court’ public statements will be allowed to the jury anyway in the sentencing stage, there would be no harm in the twelve weeks of media exposure. The jury could also be reminded that as anything will be allowed in, anything incriminating they may have heard but was not presented in court must obviously have been spurious rumour without foundation.
‘The head of the NSW Law Society's criminal law committee, Pauline Wright, said she feared "mob sentencing" and that jurors might be distracted from their primary role.’3
- If sentencing by the jury is “mob sentencing” then does that not imply that the original verdict by the jury is only a “mob verdict”? Perhaps the NSW Law Society believes that the very essence of our nation’s governing system, democracy, is only “mob decision making” and that the country would be better off if all government decisions were made by the more enlightened and reputable members of our society: the judges.
‘It's a particularly difficult art, the art of sentencing; probably the most difficult thing that a judge can possibly do. I don't see how the juries will have time or energy or the training necessary in order to substitute their views.’ Justice Marcus Einfeld, former Australian Federal Court Judge, former President of the Human Rights and Equal Opportunity Commission and convicted, incarcerated felon.4
- Judges are trained to know the common law and legislative statutes of the land, but because of its subjective nature, they receive no training in sentencing. One wonders why they would have the time and energy to perform the sentencing part of a trial but somehow juries wouldn’t?
‘It is very important that sentences reflect the beliefs and values of the community, and as much as in theory jury sentencing might be the answer, one wonders how it might work in practice. Victorian law mandates that sentences for similar crimes must conform to similar punishments. It would be extremely impractical to go through the lengthy process of educating each jury about the contemporary history of sentencing for the particular crime the jury would be specifically involved with, for it then to be qualified to give the appropriate sentence by law.’ Robert Clark, then Victorian Attorney-General 4/3/2010
- This is in fact true. Section 5(2)(b) of Victoria’s Sentencing Act 1991 declares that a sentence “must have regard to …current sentencing practices”. However before therefore dispensing with the possibility of a more democratic form of sentencing, one might wonder why this section was made law in the first place.
For many years whenever people dissatisfied with the seemingly lenient sentencing practices of the judiciary have suggested alternative procedures such as mandatory sentencing, one common response has been that the particular circumstances of every crime and its perpetrator are singular. We have been told that parliament cannot just declare a set, finite sentence for any particular crime because so many factors must be taken into account. Factors such as the nature and gravity of the offence; the offender's culpability and degree of responsibility; the impact of the offence on any victim; the personal circumstances of any victim; any injury, loss or damage resulting directly from the offence; whether the offender pleaded guilty to the offence and, if so, when; the offender's previous character; the presence of any aggravating or mitigating factor concerning the offender; or of any other relevant circumstances. This is quite true, yet incredibly, the law states that sentences must conform when the totality of the particular situations are the same. But just how could any two crimes ever be declared the same?
It is truly hard to see any justification for Section 5(2)(b). Dispensing with it would not make sentences arbitrary as the law declares that the above factors should indicate in what part of the legislated range the given sentence should sit.
Sentences handed down by juries would in all probability be very reasonable for two reasons. They would still be within the parameters and could not exceed the maximum of what Parliament dictates, and they would ultimately be the compromise result of twelve individuals who have debated their reasons, rather than the discretionary declaration of one, not compelled to justify it to anyone.
‘Sentencing must reflect the intentions of the public as much as possible and everything that can practically be done to manifest that should be done. A problem however that may develop with jury sentencing is that if there were a run of maximum limit sentences handed down by juries, then these may well be overturned on defence application by an Appeals Court. In such a situation discredit may be brought on the whole sentencing process due to the judicial process seemingly not being able to get it right.’
Senator George Brandis, Australian Attorney-General and co-author of Australian Liberalism: the continuing vision, 4/3/2010
- If jury sentencing were to be introduced it would not be just to give the jury something to do while the judge is completing all the paperwork at the end of the trial. The reasoning for jury sentencing is that aspect of democracy whereby decisions that affect the lives of individuals brought before the court should as much as possible reflect the beliefs and values of the citizenry. This is the very reason why totalitarian regimes do not have jury trials while most liberal democracies do. As that classic edict of ‘The Rule of Law’ states, we are a nation ruled by laws and not by men (or women), and the powers of those granted authority over us must always be limited as much as is practical.
Thus if we are to have jury sentencing the reason would be to take the power away from judges and give it to entities more in touch with the people. In such a situation it would be defeating the very purpose to then allow appellate judges to retain the right to overrule any sentencing decisions they happened to disagree with.
Obviously appeals should still be allowed on tangible reasons such as the mandatory limits were broken or relevant evidence presented at the sentencing stage was subsequently found to be false or incomplete. However, that the judges’ subjective estimation of what should be an appropriate sentence should happen to be different to the jury’s is hardly a reason to declare an error of law.
Any accused who thought he or she was unfairly done by would still have the right to appeal for executive clemency.
2013 Victorian Reform Proposal
In February 2013 the Victorian Labor Opposition Leader, Daniel Andrews, said that if he won office in the following year’s elections, judges would be required to consult jurors in serious criminal cases before passing sentence.
The policy was immediately criticised by the Victorian Liberal Attorney-General as well as various legal affairs establishments.
Robert Clark, Victorian Attorney-General5
‘This is a half-baked proposal by Labor. It will simply bring the law system to a grinding halt. Sentencing often has to take place weeks after the trial, meaning that jurors will have to be dragged back to the court with huge disruption to them and their families, particularly in country Victoria. Jurors will then have to listen to hours and hours of legal addresses, arguments and evidence and directions from the judge.’
- If the accused may well be spending years and years of his life in jail, is it not too much to ask a jury to spend hours and hours so that we get a correct sentence?
‘And this will only apply in any event to those 20 per cent of cases where there's a trial. You'll have no application at all in the 80 odd per cent of cases where there's a guilty plea.’
- Of course not. 95% plus of guilty pleas are in fact plea bargains. A guilty plea in exchange for a known sentence. In such a case no one is needed to decide upon a sentence.
‘This proposal was examined in detail by the Law Reform Commission in New South Wales in 2007 and rejected.’
- Whatever reasons the Law Reform Commission of New South Wales had for rejecting something new and different, it was not made evident in their Issues Paper 27 (2006) ‘Sentencing and Juries’.
The study was done examining jury sentencing as practised in the United States and in it were definite examples of where jury sentencing had proved less than wanting. However, as the study itself explained, this was because in certain states, for reasons unknown, specific information such as sentencing guidelines and other relevant statistics concerning parole or sentencing trends for similar offences were specifically denied to the jury! (para.2.36)
In fact where juries were not denied information the study quoted some supporters arguing that jury sentencing may be the “most direct and least distorting mechanism to conform criminal sanctions to community sentiment” (para.2.41)
Other arguments given against jury sentencing related to the common allegation that judges have “valuable experience” in this field that juries lack (see below) and that jury sentences would allegedly be more inconsistent than those from individual justices (see below). What was also mentioned was an American Supreme Court ruling in Blakely v. Washington, which held that the constitutional right to trial by jury in a criminal trial, enshrined in the Sixth Amendment to their constitution, included not only the right to have a jury decide guilt or innocence, but also the facts upon which any sentence enhancement is based.(para.2.39)
Arie Freiberg, Professor of Law at Monash University5
‘This would create inconsistencies between cases heard by juries and cases heard by a judge alone.’
- Why so? In the United States where jury sentencing is prevalent, juries are also empanelled in the sentencing stage for judge alone trials.
‘Studies done in Tasmania by Professor Kate Warner where juries have been asked about their views about the sentence imposed by the judge in cases where they've sat in on the case, in fact, show that juries are not too far off the outcomes imposed by judges. And in only a small number of cases are they in fact more severe than the judge. So it's not true that public perceptions and what judges do are out of kilter. I think that the more juries know, the more the public knows about the actual circumstances of each case, the more congruent are the outcomes likely to be.’
- That recent study has not yet been subject to any rigourous examination, and there certainly are questions to be asked about it, but to the degree that they revealed truths, this is still not an argument against jury sentencing. One of the big issues of contemporary times is occasional public disgust with apparent lenient sentencing. Few TV current affairs shows receive high ratings by complaining that sentencing is too heavy. Would knowing that the latest ‘lenient’ sentence was made by twelve representatives of the broader community not placate people more so than if made by a single, highly paid, distant and unapproachable judge?
Remy van de Wiel, QC, Chairman of the Criminal Bar Association6
‘the proposal … had no real benefit.’
- How about “Justice must not only be done but be seen to be done.”?
‘Juries do not have the training...’
- There are schools which give training in sentencing?
‘they [juries] do not have an awareness of sentencing statistics..’
- If this is in relation to Section 5(2)(b) of Victoria’s Sentencing Act 1991 declaring that sentencing practices must be consistent, then as described above, this would be an extremely difficult process. Not only that, but the principle it is based upon does seem rather skewed. As much as it may in theory appear professional to the public for all sentences for similar crimes and circumstances to be level, it leaves open the obvious flaw that one or two initial aberrant sentences would compel all following sentences to be also aberrant.
In fact this is precisely what has happened in Australia in 2017. The Victorian Court of Appeal ruled that the five-and-a-half-year sentence (three years non-parole) given to a man who sexually abused his de facto partner’s two daughters, causing one thirteen-year-old to become pregnant, was “not a proportionate response to the objective gravity of the situation”. (Each individual charge accrued a maximum penalty of 25 years and it was estimated he had been abusing one girl for four years.) However, “due to the fundamental requirement of consistency in sentencing” — or “the treatment of like cases alike”, the appellate court claimed that the trial judge had to sentence “in accordance with current standards” and thus dismissed the appeal because the sentence was within the range of current sentences for incest.8
‘and they rarely have any detailed information of the details of the offender such as their psychiatric history, family history and are usually not aware of the actions of co-accused and their sentences.’
- And the reason that information can’t be given the jury is?
John Silvester, journalist for The Age newspaper
‘Allowing some sort of ‘Dancing with the Stars’ voting system will result in a flood of cases clogging the appeals courts.’
- Young people in some cultures unfortunately still can only marry those chosen for them by their parents. If one was to present an argument suggesting that the young people themselves should choose who they marry, would John Silvester respond by declaring that that system would not work, because too many times family discord would arise when the parents would not agree with the choice made?
The reason for jury sentencing is not that juries will sentence like judges anyway, but that juries, being more representative of society, would be better at reflecting community values in their sentencing. That their sentencing might be different to current sentencing practice would not be a negative reflection upon the juries.
David Harper, Judge of the Court of Appeal of the Supreme Court of Victoria7
‘One of these [challenges in sentencing] is the necessity to balance often competing considerations. Punishment and rehabilitation are examples.’
- That would be a very lopsided balance. According to law, (S. 5 of the Victorian Sentencing Act), rehabilitation is only one of five purposes of sentencing. The others are punishment, deterrence, community protection and public denunciation of the crime; none of which being accommodated by lenient sentencing.
‘but when the importance of rehabilitation - and therefore the long-term protection of the community - is taken into account, leniency may be indicated.’
- Rehabilitation is an enterprise of challenging goals and questionable results. It is still practised “in house” in most western countries because as the offender serving time is in state control anyway, there can be no harm in attempting to alter his psychological makeup. However to claim that rehabilitation through a lenient sentence will most likely work and thus protect society by preventing re-offending is extremely dubious; especially when one considers that giving the felon the full term the crime entails will guarantee no further crimes, at least until he has paid his debt to society.
‘Leniency may also be appropriate in other circumstances. Most Australians, for example, would welcome that shown by the Indonesian Supreme Court to Scott Rush in overturning his death sentence.’
- Fine. We won’t ask that drug mules be sentenced to death. But that hardly explains why rapists, child molesters, or those who cause death or permanent brain damage to innocents, seldom experience 10 concurrent birthdays in jail.
‘The solution [to a lack of community confidence in the system] seems obvious. The courts should be much more punitive.’
- Not at all. Simply put the decision making process in the hands of the people.
‘…the Tasmanian Jury Sentencing Study… is the result of rigourous research…’
- Did the rigourous research of that study take into account the fact that for the two years of the study, the judges knew beforehand that their sentences were being scrutinised and compared to the jury's to check for leniency?
‘Judges and magistrates are sworn to do justice according to law, not according to public whim ... It does democracy no service if the judiciary is attacked for doing its duty.’
- What one person calls “whim” another would call “considered deliberation”. Why is democracy not being served when the people’s representatives on the bench are criticised for not following the people’s deliberations / whims?
The ‘benefit’ of a judge’s experience in sentencing
When people talk about the lack of valuable experience in sentencing a jury would have, as compared to a judge, it raises two issues:
A. How can the learning from experience be of value in all aspects of sentencing?
B. Where it can help, how does a judge actually learn from experience?
According to Section 5 of the Victorian Sentencing Act 1991, as of 1st May 2011, the five only purposes of sentencing are to:
- Punish the offender
- Deter the offender or others from committing similar offences
- Rehabilitate the offender
- Manifest society’s denunciation of the crime
- Protect the community
A: With at least three of these purposes it would seem hard to understand why anyone would need experience to adequately perform the duty. With regards to punishing, denouncing and protecting one simply relates the abhorrence of the crime, as judged by the aggregate evaluations of twelve representatives of society, to the maximum sentence.
B: With regards to rehabilitation and protecting the community, and how judicial experience may render better judgements, there may be a misunderstanding over the nature of the concept of experience itself. When experience is a value it is because it is the higher level of talent to do a job one acquires due to a long period of trial and observed error. A hospital doctor will gain valuable experience over time by giving prescriptions and advice one day and observing, on his rounds the following day, how his patients have fared. If, hypothetically, the doctor was sent to a new hospital every day and never had an opportunity for repeat consultation to judge how successful his advice was, then experience for him would be of no value. He certainly would have experience in giving prescriptions and advice, but his sum total of knowledge on his 285th day of treating people he would never see or hear of again, would be no better than on his first.
Any declared valuable experience of a judge is highly questionable. To begin with judges receive no training in sentencing (as if training in that could be given anyway- “when he has this look on his face it means he is truly repentant, and when his skull is shaped like that, it means he is a career criminal. Next, read the letters to the editor of the morning paper to see what length of sentence the community desires.”). As all judges have to begin sentencing sometime, are we to assume that we must accept that bad sentences may be given out until his or her honour manages to get on top of the job?
Secondly and most importantly, judges simply receive no feedback to allow them to assess the proficiency of their decisions. There is no organised follow up between sentencer and convicted to note how the felon, or the victims, or society in general, has, over time, reacted to the specific sentence. The next victim of the rapist who was given a suspended sentence and then proceeded to immediately re-offend has no right to make the sentencing judge answer for his actions. In fact this has been guaranteed in common law by that judge’s predecessor of a century or two. By law, judges and magistrates cannot be held liable for any negligence that may have happened in the sentencing process. Thus as it can never come back to haunt him, why should the judge bother to find out what may eventually happen to the convict or others in society who may well be effected?
Finally we must also bear in mind that sentencing does not always do something that will create a specific result. As compared with a doctor’s advice which hopefully will cure the sick, the goals of sentencing, as stated above, are a collection of disparate objectives. We may be able to judge when a sentence has failed but how do we judge a success?
That Tasmanian Study of Jury Perceptions
In attempting to refute the need for jury sentencing, much has been said of the 2011 published report Public judgement on sentencing: Final results from the Tasmanian Jury Sentencing Study by Australian academics Kate Warner, Julia Davis, Maggie Walter, Rebecca Bradfield and Rachel Vermey. In summarising the results the report declared “There was a high overall level of satisfaction with judicial sentencing among jurors”
To begin with, one can’t help being somewhat suspicious that in a time when, as reported by the study itself, “public opinion surveys conducted world wide over the last four decades have consistently found that between 70 and 80 percent of respondents believe that sentences are too lenient” some scholars, unknown outside academia, go off to Tasmania and come back with a study allegedly proving that, despite all the anecdotal evidence, sentencing by judges is in fact in line with community expectations in our society. It is not as though researchers gleaned through thousands of published Australian Bureau of Statistics records or minutely went over court sentencing law reports throughout Australia for the last fifty years to somehow come up with facts which could prove relevant to the issue at hand.
Thus, if the study was to cover only one small cross section of society over a period of not more than two years, it would be hoped that as much time was invested into methodology as in eliciting the results of the surveys.
And which jurors were surveyed?
The study related to approximately 1,700 jurors from criminal trials which had returned a guilty verdict, who were asked to participate in a number of surveys. 36% of those asked agreed to participate: only one in three.
Any professional marketer would know that in a good survey, one tries as much as is feasible to get as complete a cross section of the target demographic as possible. When pollsters phone residences randomly selected from the phone book they do not necessarily want the person designated to answer the phone at the dwelling to be the one to do the poll. Sometimes a trick is used whereby the person whose birthday is closest is asked to give his / responses to the questions to be asked in an effort to get a truly random respondent.
In this case it appears that, when only a third of the respondents asked agreed to be surveyed, nothing was done to in an attempt to increase that percentage.
Assuming the funding of the study was in the region of a similar one given to most of the same academics about to study Victorian jury sentencing from 2013 to 2015, one would think having a government grant of $400,000 would be enough to allow some financial compensation to entice more jurors to participate and thus balance the field.
Of course that would not matter if the 36% were a fair cross section of all the jurors. But was any evidence given to support that? When jurors would decide to opt out of the study it would not be by happenstance. It might well reflect their dedication to their professional lives that they don’t wish to stay away from for any longer, for others it may be to their personal or family commitments. Who is to say that there definitely would be no correlation between the type of person who would not stay and how that person would vote?
The study revealed that the response rate was more than four times higher in the metropolitan area than in rural “smaller communities”. Are we to believe that attitudes to law and order are the same in the inner cities as in the so called “red-neck” rural areas?
Where’s the control group?
Any professionally done study will involve a group of test subjects together with what is called a ‘control group’. To test whether the hypothetical new Tranquillity headache tablets really work, test subjects are given tablets to use for a month to test and report back. People in group A are given the Tranquility tablets while people in control group B will be given a placebo, tablets of a neutral substance that have no medicinal effect. The reason for this is that in scientific studies it is very common for the test subjects to be unintentionally or intentionally effected by the fact that they are in a study. Ie if a person has a headache and takes what she believes to be a cure, then sometimes her headache will go away only because she is expecting it to go away. Thus any results from the real test must be compared with that of the control group, before results can be given credibility.
In this case a control group would have been a parallel trial prosecuting the same defendant over the same crime with the same judge, but only to record the judge’s sentence decision. The fact that this would have been impossible to undertake does not deny the fact that the integrity of the whole study was seriously affected by the absence of a control group.
From the beginning the judges were aware they were participating in a study to see if they were violating their oaths to the law by being lenient and not reflecting community standards.
Does one really have to ask whether or not that would unconsciously, or even consciously, effect the sentence they ultimately gave?
# Newson L and Aldous J, The Legal Maze, Macmillan Education Australia, Melbourne, 2004, p 55.
* Spigelman, James - “The Power of Twelve: a New Way to Sentence for Serious Crime”ALRC Reform Journal 51
 Allowing majority decisions rather than unanimous ones is not such an extreme position because of three reasons.
#1 Majority decisions (of 10 or 11) are already allowed for deciding guilt in criminal trials in some jurisdictions even for serious crimes such as murder.
#2 The important principle that the finding of guilt must be more than just the balance of probabilities relates to the adage that it is better for guilty men to be walking the street than the innocent to be burdened with the false shame of conviction. However the important decision of guilt or innocence has already been made and thus no inherent fundamental wrong can be done at sentencing stage. (Especially considering that the juries will still be limited to legislation as to the maximum ‘minimum’ they can set.)
#3 To say that unanimous sentencing exists now with a single judge is actually technically correct because there is no opposing voice to the sentence from the bench. But of course in reality, one person does not unanimity make. Sometimes this is blatantly obviously in the words the judge will use to bring down his sentence. “I am in two minds about what to do with you Mr Fagin. For what you have done, I want to give you the maximum term the law allows, but then I can’t help thinking that with you there is still a chance for redemption, a chance that I shall engage…” Or alternatively, “Mr Sykes, this is one case in which I have absolutely no doubt about what shall be done with you…” In both examples, what the judge has implied is that in some sentences he hands down, his mind is in a 12/0, 9/3 or 7/5 position. He is totally sure, or he makes a decision going with the balance of probabilities of all his thoughts on the matter.
So if society is to allow judges to make 8/4 decisions on what sentence the convicted will receive, it seems extremely hypocritical to deny jury sentencing because all decisions may not be unanimous.
 ‘Lawyers uneasy over plan for jury sentencing role’. Michael Pelly Sydney Morning Herald, Feb 2, 2005
‘Lawyers uneasy over plan for jury sentencing role’. Michael Pelly Sydney Morning Herald, Feb 2, 2005
 ‘The 7.30 Report’, ABC TV, July 2006
 ‘PM with Mark Colvin’, ABC radio, 4th February, 2013
 ‘Leave Sentencing to Judges, lawyers say’, The Age, 4th February, 2013.
 In his article ‘Don’t rush to judge on sentencing’ in The Age of 18th May 2011, Judge Harper was not specifically writing about jury sentencing but commenting on public perceptions of judicial sentencing in general.
 As some relief, the Australian High Court did overturn the that VCA ruling, but unfortunately not leaving the issue with any concrete precedent. It held that consistency in sentencing must still be given relevance, but not too much.
Nikola Berkovic, ‘Violent criminals in Victoria handed overly lenient sentences’ The Australian, 11 October, 2017.