Public opinion surrounding sentence severity, perceived leniency and “out-of-touch” judges are not as polarised or adverse to the Australian justice system as they appear on the surface, a sentencing expert has said.
The Honourable Kate Warner AC, in her role as Governor of Tasmania, gave an overview of the Victorian Jury Sentencing study and discussed the impact of the results in a speech she made at the annual Victoria Law Foundation Law Oration.
Ms Warner said general questions about severity of sentencing or perceived leniency “seem to tap into surface feelings rather than informed and thoughtful judgments.” To highlight a continual, vested and public interest in sentencing procedure, she quoted notable figures such as the Honourable James Spigelman AC, David Brown and the Honourable Murray Gleeson AC.
She said the study’s findings supported a conclusion that “jurors, as informed members of the public, are not clamouring for heavier sentences” and that jurors “can support individual sentencing decisions, personal mitigation, sentencing discretion and the judge as the most appropriate person to pass sentence.”
Ms Warner said it is important for society to identify any mismatches between community views and sentencing practices. She said this serves a dual purpose, “first, to provide part of the evidence base for debate and law reform proposals and secondly, to alert the judiciary of the need to clearly explain why certain factors are treated as they are.”
She did concede that jurors may “hold the view that sentences for crimes of violence and sexual offences are too lenient,” which she suggested as an “anchor point” for future contribution to sentencing debates.
Outlining the methodology, Ms Warner said the studies generally consisted of surveys given to jurors after a guilty verdict and before sentencing, which asked jurors to choose a sentence they think as appropriate for the offender, their views on sentencing in general and demographic questions.
After sentencing, jurors were surveyed again after being provided with a short sentencing information booklet. This stage asked for the juror’s view on the appropriateness of the judge’s sentence and the weightings that should be applied before repeating general questions on sentence severity.
A sample of Victorian respondents were also interviewed, which allowed jurors to elaborate on their responses and views, and a follow up survey was administered six months after the second survey.
The study found that comparisons of listed aggravating and mitigating factors “did not reveal any gross mismatch between judges and jurors,” correcting a “generally punitive response of the public” in generalised opinion polls (and even in generalised responses given for the purpose of this study).
Ms Warner said when jurors are “confronted with the offender in person and, in many cases, with the offender’s family, they tend to support mitigating factors to a greater extent than their responses to general questions about leniency and severity would suggest.“
She flagged the repeated debate and past proposal considerations of whether juries should have a greater role in sentencing as significant to the debate. When discussing juror responses in interviews post sentencing, she noted “jurors were more likely to baulk at having any sentencing role at all.”
“The most common reason for opposing a role included lack of experience or expertise and other reasons included the difficulty of the task; the risk of inconsistency and unfair outcomes and the risk of jurors being too emotionally involved in the outcome,” she said.
The study also considered claims that “judges are out of touch with what ordinary people think.” She acknowledged the concern this causes to judges “‘not just for the sake of frail judicial ego’ but because propagating such reports has an impact on confidence in the criminal justice system”.
Ms Warner labelled the findings of the study “interesting” in this regard. She noted an unwillingness by jurors to label the trial judges presiding over their own cases as “out of touch”, even if they “perceived judges in general as being somewhat out of touch.”
She also said the comments of some jurors, “revealed that being ‘out of touch’ was not necessarily a criticism.” She further explained that these jurors did not want the judge to “be in touch with uninformed and punitive public views.”