NSW Opposition leader Peter Debnam’s controversial election promise is to give juries sentencing powers. Clare Buttner asks whether public confidence in the judiciary needs to be improved and if greater community involvement is an appropriate means of doing so

When it comes to sentencing policy, politics and public opinion invariably play a part in deciding what is best. In New South Wales, sentencing powers for juries is one idea that’s been debated for over two years, following a speech by NSW Chief Justice Spigelman back in early 2005 in which he suggested the jury and judge could consult on aspects of sentencing as a way of improving public confidence in the sentencing procedure.

A subsequent issues paper published by the NSW Law Reform Commission in 2006 found little compelling evidence for changing the current system but the Commission’s final report is not scheduled for completion until the end of April this year.

However, the would-be-Premier of NSW Peter Debnam has decided not to wait on the Commission’s findings and announced a ‘Community Sentencing Policy’ as part of the NSW Liberal’s election campaign. Debnam wants to enable juries, through legislation, to force judges to impose minimum sentences where the jury considers it appropriate. Minimum sentences for 20 crimes were introduced by the Carr government at the last state election but judges retained discretion to impose a more lenient sentence.

“Juries represent the values and standards of a community. Sentences must reflect community values and expectations. Involving juries in the process of sentencing will help to restore public confidence in the NSW justice system,” Mr Debnam said when announcing the policy.

There is no doubt there is a crisis of confidence in the judiciary, and it’s common throughout the world according to Dr David Indermaur, senior research fellow at the Crime Research Centre, University of Western Australia. “If you ask people about how much confidence they have in the system and if sentencing is tough enough, in surveys all around the Western world, about three-quarters of people will say courts are not tough enough. There’s no shortage of information or evidence showing this problem exists,” he said.

There are several factors that have been identified as contributing to this lack of faith in the judiciary. “We know much of public dissatisfaction exists in a political world dominated by the media where the media will report on high profile cases, often high profile violent crimes with a low sentence. This is the sort of thing that excites public interest and because of the entertainment needs of the media industry, the public gets a very jaundiced view of reality.

“Certainly the other component we are aware of that raises the public ire is that judges are out of touch with public opinion,” Indermaur said.

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Whether jury involvement in sentencing would actually improve public confidence in the judicial process has been a hotly contested issue ever since the Chief Justice expressed the view that consultation between the judge and jury might be desirable.

The NSW Chief Justice said at the time: “Sentencing engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way that judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.”

In contrast to Debnam, however, he did not propose jury involvement with a view to imposing harsher sentences. Indeed, the Chief Justice referred to studies that indicate jurors are not significantly harsher in their views on sentencing than judges.

Following the Chief Justice’s speech, the NSW Law Reform Commission began an inquiry, and examined the jury-sentencing procedures in the US, where six states currently allow the jury a role in sentencing. The report found that the manner in which juries were involved in the sentencing procedure in the US was unlikely to improve public confidence in the court system, due largely to inconsistencies.

It stated: “[J]uries are hampered in their ability to recommend sentences that are consistent and in context with the criminal justice system as a whole. This is particularly problematic since jurors, unlike judges, lack broad sentencing experience. They must recommend penalties based on the experience of a single isolated case possibly drawing on their somewhat uncertain recollection of what may have occurred in other cases that have attracted public attention, or even personal prejudice.

“The disparity in the information received by judges and jurors can, in some jurisdictions, result in juries imposing higher sentences than judges who are more informed. The lack of information given to sentencing juries is considered, even by advocates of jury sentencing, to be one of the greatest drawbacks to the current system, in the United States.”

The Commission’s report also highlighted certain practical obstacles to juries having a say in sentencing in NSW. One is that sentencing usually takes place quite some time after the verdict is delivered. Another is that state and federal matters are often heard together in the one trial, which could lead to an “uneasy synthesis” where juries deliver a verdict on both matters but could only take part in the sentencing of one.

Such practicalities and a lack of experience on the part of the jury have been cited by many dismissing Debnam’s policy. President of the NSW Bar Association Michael Slattery said it was unwise on this basis.

“It’s unworkable for two reasons. One, it’s actually very hard to get the jury back again because the sentencing takes place often months after the criminal trial finishes. Second, it will increase appeals against sentences because jurors don’t have the same experience, expertise and access to data that judges have in setting sentences,” Slattery said.

Slattery believes Debnam’s policy is actually based on a falsity.

“There’s an assumption in what Debnam is saying. The assumption behind the policy idea is that judges in NSW are not doing a good job on sentencing and the assumption is wrong,” Slattery said.

Instead, he thinks a better way of improving confidence in the system is by ensuring more representative juries. “It would be better if both sides in politics looked at more constructive ways of supporting citizens undertaking jury duty by agreeing to pay them average weekly earnings This was something recommended by the Law Reform Commission 20 years ago and would produce more representative juries.”

Indermaur was also concerned about Debnam’s proposal. “It’s the sort of thing that could leave the jurors eventually feeling like they were caught up in a process where they didn’t have sufficient information. It’s the kind of policy that should not be forced through before an election,” he said.

However, not everyone has been so quick to dismiss the rationale behind Debnam’s idea. Lawyer and psychologist, Dr Jane Goodman-Delahunty of the University of New South Wales, said a lack of legal expertise on the jury would not pose a problem, so long as the jury wasn’t asked to apply the law.

“It depends on what you are asking them to do and that’s the whole issue. Are we saying to them apply the law? No, I don’t think anyone is saying that. I hear people saying we should try to get some idea as to whether the community thinks this is a major, serious offence that deserves a very severe punishment. I think the question is, is there a way to structure their participation so that jurors can give some community feedback based on what they think is the relative severity of the crime,” she said.

This separation of the issues — whether jury involvement is desirable, before determining what form it takes — is critical to coherent debate on the subject according to Goodman-Delahunty.

“All I think that these parties, both Debnam and Spigelman, have been trying to say is, is there a role for input from the community that can have a bearing on decision making by legal experts who are trained on sentencing law? And so that is the question as I see it,” she said.

“What the research tends to show is that when there is a greater involvement of the community, because there’s more engagement in the decision making, it adds to confidence in the outcome. The engagement, whatever the format of the input is, can be seen to have that benefit.”