What is the role of the NSW Sentencing Council?

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Have you ever wondered what factors influence the imposition of mandatory and maximum sentences for a particular crime?

Or who reviews sentences for specific offences to ensure that they are aligned with social expectations and ideals?

The New South Wales Sentencing Council is a special body that plays a crucial role in sentencing law reform.

Its purpose is to advise the state’s Attorney-General on sentencing matters, and to push for the revision of sentencing laws and procedures where necessary.

The Council is composed of 10 members, appointed by the Attorney-General.

Members are generally appointed for a period of three years, and include retired judicial officers, persons who have experience in law enforcement, criminal law and sentencing experts, prosecution and defence specialists, Indigenous justice experts and persons who represent the general community and victims of crime.

The Council meets on a regular basis; at least once a month, to discuss matters relating to sentencing.

It plays a key role in compiling data and statistics on sentencing trends for the Attorney General, as well as research papers and reports on specific sentencing issues.

Other duties include educating the general public about sentencing matters in order to dispel commonly-held myths and to promote confidence in the sentencing process. It achieves this through numerous public forums and the publication of sentencing guides.

Importantly, the Council consults the Attorney General on the imposition of “standard non-parole periods” for particular offences.

Standard non-parole periods apply for many serious criminal offences, such as murder, which carries a standard non-parole period of 20 years.

The standard non-parole period does not automatically apply in every case. Essentially, it acts as a ‘guidepost’ or a ‘yardstick’ which the sentencing judge can refer to when setting the appropriate non-parole period in a particular case.

The “non-parole period” refers to the time that the defendant is actually kept in prison for a particular offence.

Standard non-parole periods therefore have a significant impact on the penalty imposed in applicable cases, and it’s important to ensure that they are appropriately determined and backed by statistical evidence.

Another important function of the Council is to recommend and assess the need for guideline judgments.

Guideline judgments must be considered in certain cases, such as high range drink driving and armed robbery.

They are similar to standard non-parole periods in that they act as a ‘check’ or ‘sounding board’ when sentencing a person for certain criminal offences, however they take into account the whole sentence, not just the non-parole period.

They are designed to promote consistency in sentencing for similar offences.

The Sentencing Council, along with the Judicial Commission, are influential in deciding whether or not a guideline judgment will apply for an offence.

These bodies are instrumental in providing empirical data to support the need for such judgments – for example, information on the characteristics and prevalence of particular offences, and existing sentencing patterns.

Yet despite the obvious importance of the Sentencing Council, some have suggested that it should be given more power to institute changes of its own accord, like its equivalent in the United Kingdom.

The United Kingdom Sentencing Council is responsible for formulating guideline judgments which act as a yardstick for sentencing in individual cases, but has the power to set changes in motion rather than simply make recommendations.

While guideline judgments have only been issued for some of the most prolific offences in NSW, the UK Council is expected to issue guidelines for all criminal offences.

It’s expected that this promotes consistency, transparency and predictability in sentencing, whilst reducing the negative impact of racial and ethnic profiling by judicial officers.

Since the inception of the UK Sentencing Council, several prominent legal professionals have called for the New South Wales Council to be granted similar powers.

Andrew Ashworth, who is a member of the UK Council, has suggested that this approach would ensure that sentences for all types of criminal offences could be examined at any time.

This differs from the current approach, which requires a ‘test case’ to come before the courts before a guideline judgment can be handed down.

However, any decision to increase the NSW Sentencing Council’s power should not be taken lightly.

Former NSW Director of Public Prosecutions, Nicholas Cowdery, has cautioned that while they offer many benefits, guideline judgments usually result in harsher sentences being imposed for particular offences.

There are also concerns that they limit the ability of judges to exercise discretion in sentencing – in other words, judges are less able to use their own judgment and experience in handing down sentences because they are bound to consider the relevant guidelines.

Though there have not been any firm plans to invest the NSW Sentencing Council with greater powers as yet, it’s important to remember that as it was only founded in 2006 and the Council is therefore still in its infancy – so there is still plenty of potential to expand its functions and duties in coming years.

The issues posed by guideline judgements suggest that any plans to increase the powers of our current Sentencing Council should be approached with care.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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