The Criminal Law NSW Noticeboard is your one-stop-shop for criminal law news as it occurs. With rapid updating by District Court Judge, Martin Blackmore, the Noticeboard keeps you apprised of all of the latest legislative and case developments related to the practice of criminal law in NSW. For a more detailed look into these and other criminal law matters, Criminal Law NSW, the authority on criminal law in NSW for almost 100 years, is available for subscription online, in looseleaf or on ProView eSub.

May 2015

Cases

• Using JIRS statistics as a guide to setting an appropriate sentence

CASES

Updated 7 May 2015

Using JIRS statistics as a guide to setting an appropriate sentence

In Hili v The Queen (2010) 242 CLR 520; 204 A Crim R 434; [2010] HCA 45, the High Court stated that while consistency in sentencing is a desirable end, the sentencing consistency sought is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence”.

Accordingly, the presentation of sentences which have been passed in “numerical tables, bar charts or graphs” which merely depict outcomes is not useful as it is not possible to ascertain from them why the sentences were imposed. Further, useful statistical analysis is not possible where there is a very small number of offenders sentenced each year, as is the case for federal offenders.

The High Court stated at [48]:

… Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

The issue of the validity of the use of statistics before sentencing courts and appeal courts in determining a range of sentence is one that is raised, virtually on a daily basis, in those courts. Despite the warning by the High Court with respect to the use of statistics, they are still constantly provided to the court to support a submission that the appropriate range of sentences for a particular offence can be determined from those statistics.

The statistics provided by the Judicial Commission do not provide evidence of an appropriate range. In R v Lao [2003] NSWCCA 315, Spigelman CJ said:

[32] What is an available “range” is sometimes not accurately stated, when reference is made to Judicial Commission statistics. The statistics of the Judicial Commission do not show a range appropriate for a particular offence.

[33] This court is concerned to determine the appropriate range for the particular offence. The Judicial Commission statistics do not indicate that range. They reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics.

Despite the clear warning from the then Chief Justice in 2003, the issue as to the use of the statistics continues to arise. In Tweedie v The Queen [2015] NSWCCA 71, the Court of Criminal Appeal again addressed the use of statistics. The court explained that the use of statistics is indeed problematic due to the manner in which the statistics are recorded. The Court noted:

[45] The second submission involved reference to Judicial Commission sentencing statistics. However the database relied upon in relation to the fraud offences contained only five cases of sentencing in the District Court or resentencing in this Court which makes the statistics of no use at all.

[46] Reference was also made to statistics concerning sentencing in the Local Court where a much larger database was involved. There is no utility in comparing sentences imposed in the District Court for such a large number of offences committed in the period and style of the applicant’s offences with sentences imposed in the Local Court where the jurisdictional limit is 20 per cent of the maximum penalty available in the District Court.

[47] A more fundamental problem with the applicant’s recourse to statistics is a failure to recognise that the Judicial Commission only records the sentence imposed for one offence in a multi-offence sentencing exercise; what it terms the “principal offence” (the offence that attracted the highest of the various sentences imposed or, where there is more than one offence that attracted the highest sentence, the offence which had the highest maximum penalty or had offences listed on a Form 1 taken into account). No statistics are maintained of the overall or aggregate sentence imposed in such cases. In short, the applicant was seeking to compare sentences imposed for a single offence with his aggregate sentence imposed for 38 offences.

Comment: While the use of statistics as part of the material provided to a sentencing court does provide the court with some useful information, statistics do not provide evidence of the available range of sentence for any particular offence. It is important to understand what the Court of Criminal Appeal said about the manner in which such statistics are recorded. Moreover, if the statistics are used to determine a range of appropriate sentence for an offence, such use has the potential to indicate to the court a quasi maximum and minimum sentence when the maximums and minimums are actually set by parliament. Magistrates and Judges have a wide discretion to impose sentences within the boundaries set by parliament and the statistics should not be used in a way to limit the exercise of that discretion.

Some content sourced from FirstPoint powered by Australian Digest.

We hope you enjoy your Criminal Law NSW Bulletin in this new format. We are always striving to improve our products to meet your needs. If you have any feedback on how we may provide further enhancements, please post a comment below or contact us on crimlawnsw.direct@thomsonreuters.com.