Reflections on 50 years of sentencing reform: The good,the bad and the future

Abstract

Sentencing reform in Australia over the past 50 years has reflected ideological conflicts and deeper structural transformations in the economy and in society. It is a tale of two paradigms, one which is inclusive, participatory and rehabilitative, the other punitive and populist. This article identifies many of the positive changes over that period such as the recognition of the role of victims in the criminal justice system, the introduction of diversion programs, restorative justice and problem-oriented courts, the growth of trauma-informed sentencing and the creation of sentencing advisory councils. It also notes the rise of the prison population. The influence of penal populism has produced mandatory sentencing laws, restrictions on parole and post-release dispositions for those deemed to be too dangerous to be released into the community. Finally, it notes the possible role of artificial intelligence in sentencing.

A 50^th anniversary is often referred to as a ‘golden jubilee’ – an occasion to celebrate a special event, in this case the establishment of this journal. The longevity of the Alternative Law Journal is a cause for jubilation. However, sentencing reform over the past five decades provokes more mixed emotions.

1974 was the year I started my career as a criminologist at the newly established Australian Institute of Criminology in Canberra, during the heady times of the Whitlam Labor government. But other than the birth of the then Legal Service Bulletin and my career, 1974 is not a logical place to trace changes in the sentencing landscape. Serious sentencing reform began in the 1960s – a decade of turmoil and social upheaval, the years of the Vietnam war, the civil rights movement, hippies and women’s liberation.

Sentencing reform in the decades since has reflected ideological conflicts and deeper structural transformations in the economy and in society. It is a tale of two paradigms, one which is inclusive, participatory and rehabilitative, the other punitive and populist. ‘Reform’ implies change for the better but is frequently used rhetorically when all that is meant is change. The ‘reform’ process has been contradictory and bifurcated, and the path is not one of unbroken progress towards a better, more enlightened, more equitable and fairer sentencing system. Progress, if at all, is episodic and never irreversible.

The good

In the spirit of celebration, we should start with the positive changes.

From the mid ’60s there was a growing recognition of the role of victims in the criminal justice system, of the shameful treatment of First Nations people (although that term was not used until much later) and of the overuse of imprisonment. The 1960s and ’70s saw the introduction of intermediate sanctions such as community work, periodic and home detention and intensive supervision. Frequently referred to as ‘alternatives to imprisonment’, these were valuable in that they gave sentencers a wider range of sentencing options. But despite the promise of their description, these ‘alternatives’ reduced the numbers receiving low-end orders such as fines and bonds rather than reducing the numbers sent to prison.

Responding to calls for more rational and coherent legislative frameworks for sentencing, from the late 1980s every jurisdiction enacted comprehensive sentencing statutes to replace the incoherent patchwork of sentencing laws.

Other innovations occurred at the lower ends of the sentencing hierarchy. In many jurisdictions, diversion programs were developed to allow first time or minor offenders to avoid a criminal conviction by undertaking programs that benefited them, victims and the community. In relation to drug-related offending, programs such as CREDIT (Court Referral and Evaluation for Drug Intervention and Treatment) in Victoria and MERIT (Magistrates Early Referral into Treatment) in New South Wales (NSW) were developed to provide treatment programs for alleged offenders before conviction. Various intervention programs or orders were legislated to provide supervised treatment or rehabilitation, or access to support services as conditions of bail.

Deferred sentences were introduced to allow courts to delay the imposition of sentence – for the court to assess the defendant’s capacity and prospects for rehabilitation, for the defendant to undertake programs and for any other purpose. Successful completion of the deferral order could result in a less severe sanction being imposed. During these decades, suspended sentences came and went in several jurisdictions and attempts to abolish short sentences of imprisonment were made but had little effect on prison populations.

The rise of the victims’ movement in the 1960s thrust the hitherto ‘forgotten party’ in crime into the justice arena. Subsequent decades saw the provision of support services to victims of crime, state-funded financial compensation schemes, and restitution and counselling services. In the 1990s, victim impact statements were introduced to give victims a stronger voice in the sentencing process. Later, victims’ views became institutionalised through mechanisms such as victim representation on parole boards and other release authorities and on sentencing advisory councils as well as the creation of victim/public registration and notification schemes. Victims are now also able to make oral or written submissions to parole boards when an offender is being considered for release. Several states have enacted charters of victims’ rights and created Victims’ Commissioners to promote and respect victims’ rights.

Concerns about unjustifiable sentencing disparity and leniency of sentencing led to the introduction of guideline judgments in various jurisdictions from the late 1990s. These are judgments of a court of appeal which go beyond the facts of the case before the court to deal with variations of the offence and suggest types or levels of sentence appropriate to them. Pioneered by the NSW Court of Criminal Appeal and later formalised in statutes, they proved to be short lived after disapproval from the High Court. Guideline judgments pointed the way to a more structured and transparent form of sentencing than the traditional instinctive or intuitive synthesis approach adopted by Australian courts but ran counter to the prevailing individualistic sentencing ethos.

Growing dissatisfaction with the adversarial system as a means of dealing with conflict led to a search for other responses. The late 1980s saw the term ‘restorative justice’ come into prominence following the publication of John Braithwaite’s influential Crime, Shame and Reintegration. Restorative justice involves bringing together offenders together with their victims and their friends and families to discuss the harm and agree to an outcome. Restorative processes, variously titled restorative justice conferences, victim-offender mediation, sentencing circles and the like, promote healing or restoration over punishment and deterrence. They can take place at any stage of the criminal justice process, but commonly occur at the pre-sentence stage, either linked to the sentencing process or as part of a deferral or diversion process. They are extensively used in the juvenile court jurisdictions but less so in the adult jurisdiction, other than in the Australian Capital Territory (ACT).

Therapeutic jurisprudence was another development which emerged in the late 1980s. This interdisciplinary approach to law uses the tools of behavioural sciences to assess the law’s therapeutic effect on all parties involved in the justice system. It aims to improve the psychological functioning and emotional wellbeing of all those affected by the system. Given that half of prison entrants have a previous diagnosis of a mental health disorder including drug and alcohol abuse, and nearly 70 per cent of prison entrants have been in prison before (with 40 per cent of those within the previous 12 months), the need for a new approach was clear. The development of problem-solving or problem-oriented or solution-focused courts such as drug courts, mental health courts, family violence courts and neighbourhood justice centres was a response to the realities of offending. Other courts such as gambling courts, teen courts, veterans’ courts and homelessness courts have also been established or proposed in other countries.

Drug courts are designed to administer cases referred for judicially supervised drug treatment and rehabilitation within a jurisdiction. First introduced in NSW in 1999, they now operate in Victoria, Queensland and in various forms in South Australia (SA), Tasmania and Western Australia. They were developed in the belief that courts could become involved in ‘treatment’. Their major features are that they integrate drug-treatment services within a criminal justice case processing system, provide early intervention, use a non-adversarial approach, create a dominant and continuing role for the judge, use frequent substance abuse testing, require frequent contacts with the court, provide a comprehensive treatment and supervision program and employ a system of graduated sanctions and incentives.

Mental health courts attempt to identify mentally disordered defendants early in the criminal justice process, and, through a process of screening and referral to mental health agencies, seek to prevent imprisonment if the defendants do not represent a threat to the community. The courts deal primarily with low level offending where the defendant consents to participation in the programs and where the mental illness contributed to the commission of the offence. The distinctive feature of these courts is its focus on early intervention. The courts have developed multi-disciplinary teams which provide for intensive treatment and supervision under the control of the judge to whom the teams are accountable.

Domestic violence courts differ from drug courts or mental health courts in that their focus is on the nature of the offence rather than the offender. The jurisdiction is designed to deal with both the offender and the victim. These courts aim to address the problem of domestic violence by integrating a range of counselling, substance abuse and other programs into a court-based system.

Only one Neighbourhood Justice Centre operates in Australia – in the City of Yarra in Melbourne, Victoria. This Centre, housing a Magistrates’ Court, primarily uses community-based sanctions and brings together housing, health care, employment and other social services under the one roof. It involves a large degree of judicial monitoring and engagement with the local community.

The recognition that some crimes have serious long-term traumatic effects on offenders and victims has led to development of the concept of trauma-informed sentencing. This approach builds on the therapeutic jurisprudence principles that underpin problem-oriented courts. In sentencing, it means that courts should recognise the relationship between trauma and offending behaviour, particularly in relation to offenders’ adverse childhood experiences. These may include child abuse and neglect, parental absence, substance abuse and incarceration and chronic trauma experiences such as sexual abuse or coercive control, as well as systemic racism. In imposing sentence, a trauma-informed approach advocates that courts should employ those sanctions that promote rehabilitation and reintegration and, where appropriate, hear cases in problem-oriented courts. In relation to victims, it seeks to ensure that the process does not re-traumatise them through the examination or cross-examination process, through the making and presentation of victim impact statements and through the handing down of the sentence.

Indigenous overrepresentation in the criminal justice system remains a continuing blight on Australia’s justice system. Despite countless inquiries and reports, Indigenous offenders are around 13 times more likely to be in prison than non-Indigenous offenders. One response has been the establishment of Indigenous courts at both the adult and juvenile levels in Victoria, Queensland, SA and NSW. They deal only with Indigenous offenders who have pleaded guilty and involve the judicial officer sitting with senior Indigenous elders who advise them on cultural and community issues and often invoke culturally appropriate sanctions. They only deal with a small number of cases compared with the number of Indigenous offenders who come before the courts. Other responses have included: the publication of the Bugmy bench book in NSW dealing specifically with Indigenous justice issues; the promotion of strengths-based approaches to sentencing highlighting positive paths to reform; and the exploration of modes of Indigenous self-determination in sentencing, including transferring decision-making, power and resources to First Nations people and recognising their cultural rights. Legislation to require courts to take into account the unique systemic and background factors affecting First Nations peoples has been recommended by the Australian Law Reform Commission.

Political concern regarding sentencing practices and the potential role of the public in the sentencing process resulted in the establishment from 2003 of Sentencing Advisory Councils in NSW, Victoria (2004), Tasmania (2010) and Queensland (2010–12; 2016–) with the aim of bridging the gap between the public, the courts and governments. These bodies consist of members with judicial, prosecution, defence, victim, academic, corrections and community backgrounds. Unlike their overseas counterparts, whose major task is to create sentencing guidelines for the courts, their functions are to provide statistical information on sentencing to members of the judiciary and others, to conduct research and disseminate information on current sentencing practices, to gauge public opinion on sentencing matters, to consult with government departments and other interested persons or bodies, and to advise Attorneys-General on sentencing matters.

The bad

The optimism of the 1960s was tempered by the fact that prison populations were rising. In 1974 the Australian imprisonment rate was 95.1 per 100,000 of the population. In 2024 it was 208/100,000, an increase of 118.7 per cent. Female imprisonment rates have increased faster than male imprisonment rates. Around 44,400 adults were in prison in June 2024. Currently, some 40.6 per cent of all prisoners in Australia are unsentenced. A focus on imprisonment numbers and rates should not overlook the fact that nearly double that number is on a community order of some type. These rates changed only marginally over the years but always exceed the imprisonment rate. Change in their use occurs independently of changes in imprisonment rates.

Since the 1960s, offences connected with drug use have been the major problem facing the courts. However, the types of cases that come before the higher courts have now shifted, with the most common offences now those associated with sex and family violence offences

The late 1980s and the 1990s saw the rise of neoliberalism, known as ‘economic rationalism’ in Australia, a doctrine which privileged the market over the state as the primary means of organising economic and social life. With it came ideas such as privatisation, de-regulation, ‘steering not rowing’, managerialism and competition. Risk and actuarial models of justice also came into vogue as did an intolerance of expert-administered systems or systems dominated by ‘elites’. Rehabilitative models gave way to theories of personal responsibility and punishment. In the early 1990s, the terms ‘penal populism’ or ‘populist punitiveness’ entered the criminological lexicon to describe the notion of politicians tapping into, and using for their own purposes, what they believe to be the public’s generally punitive stance. This, despite many studies of public opinion showing that the public’s views of sentencing and parole are far more nuanced than the ‘lock them up and throw away the key’ depiction of the community’s attitudes portrayed in the media.

In contrast to the formal, rational forms of justice, justice became more emotional, non-rational and expressive. The ‘public’ became a key actor in shaping public policy as did the victims’ movement, creating a new alignment of penal power. The ‘penal climate’, that is the public, political and media pressures on politician and court to act tough on crime, warmed markedly.

The ‘tough on crime’ mantra has manifested itself in several ways, mostly aimed at reducing judicial discretion and increasing the severity of sentencing. It takes several forms: mandatory life sentences; mandatory minimum sentences of imprisonment which can escalate with subsequent offending; one, two and three strikes legislation; and one-punch or coward’s-punch homicide laws that carry mandatory minimum non-parole periods. Sentencing severity was also increased by a High Court ruling that a mandatory minimum term of imprisonment is not that which must be imposed after all aggravating and mitigating factors are considered, even where those factors would suggest that a less severe sentence may be appropriate but is only the base or starting point against which more serious cases are measured, up to the maximum statutory sentence (Hurt v The King [2024] HCA 8).

The growing fear of sex offenders, violent offenders, terrorists and repeat offenders has seen the introduction of laws that oust or limit the principle of proportionality, require cumulative rather than concurrent sentences to be imposed, regard the protection of the community as the primary purpose of sentencing, and allow for indefinite rather than fixed terms of imprisonment.

Concerned about the risk of re-offending by these classes of offenders, some jurisdictions have created laws that allow an offender to be detained or supervised after the completion of their sentence, possibly for indefinite periods of time, if they are determined by a court to be too dangerous to be released from prison unsupervised. Although these are not strictly sentencing laws, they have a similar effect on the offender, severely restricting their freedom of movement.

There have also been restrictions on parole, through schemes such as standard or presumptive non-parole periods. These are periods which must be set by a court unless the court determines that there are reasons for departing from that period. More restrictive schemes require mandatory non-parole or minimum terms be set, either nominally or as percentages of the head sentence. Other restrictions on parole include the prioritisation in parole decision-making of community safety over other factors and removing parole boards’ discretion almost completely. This occurs through legislation that applies to small, readily identifiable groups of people, such as those who have murdered police officers or committed multiple murders. ‘No body, no parole’ laws have been introduced for cases where a murder victim has not been found and where it is believed that the offender knows but will not reveal the location. If the parole board believes that the offender is not cooperating with investigations, it cannot release the offender on parole.

Since the 1980s, the limits of traditional sentencing laws in reducing crime have seen the increasing use of hybrid or civil sanctions – laws which are aimed at the proceeds and instruments of crime. These orders deprive a person of their property or the proceeds of crime but are not criminal punishments. They can have severe and disproportionate effects on offenders’ property. Other non-sentencing, but powerful, sanctions include sex offender registration and notification schemes and a host of ancillary orders such as banning and prohibition orders, disqualification orders, non-association orders, victim levy or surcharge orders, passport orders and control orders.

The future: Gold or gilt?

Many of today’s sentencing structures and processes would be familiar to a judge of the mid-70s. But sentencing, once the Cinderella of the criminal justice system, is now the belle of the ball. An extensive appellate jurisprudence has developed, as has the body of sentencing scholarship. Sentencing at both trial and appellate levels forms a substantial part of the work of the courts. It is far more complex than it was 50 years ago with more law, more options, more information, more sources of guidance for the courts and far more public scrutiny.

However, the perennial issues of sentencing – discretion, disparity, desert, severity and veracity – forever challenge policymakers. Debates will continue as to who is least or most trustworthy in sentencing – parliaments, the courts or parole boards? Other questions include how much disparity between courts should be tolerated, how severely crimes should be sentenced and what the relationship should be between statutory maximum penalties, court-imposed sentences and actual time served, that is, how ‘truthful’ should sentences be? The twin challenges of sentencing remain, on the one hand, how to avoid unjustifiable disparity – treating like cases differently – and on the other, unjustifiable parity – imposing the same sentence on different offenders. The challenge of reducing prison populations requires changes to bail laws, repeal of mandatory sentences and re-empowering of parole boards.

The debate about judicial discretion and sentencing methodology has been resolved in Australia. Australia remains a resolute adherent to the highly individualistic instinctive or intuitive synthesis sentencing methodology. This holds that sentencing is an art, not a science, that no two cases are alike and that there is no one correct sentence. In contrast, other jurisdictions have moved towards more structured approaches using guideline judgments or sentencing guidelines aided by sentencing commissions or councils. These institutions and approaches are intended to reduce unjustifiable disparities or excessive leniency in sentencing and to develop more rational and proportionate relationships between crime and punishment. Also, in contrast to most other Anglophone jurisdictions, prosecutors in most Australian jurisdictions are not permitted to provide a submission regarding the bounds of the available range of sentences.

Sentencing has traditionally been regarded as a human process. However, the increasing use of powerful technologies such as artificial intelligence (AI) is transforming the way that governments and businesses operate around the world. AI is promoted as being more accurate, consistent, speedy and efficient than human decision makers. Some forms of computer-assisted sentencing already exist. Judges can be provided with statistical and other information produced with the assistance of algorithms. Databases of sentencing information, including details of cases and sentences imposed in previous cases, have been created by various bodies which can be referred to by sentencers to inform their decisions.

It is unlikely that AI will completely replace human sentencers but it can, or will be, used to assist or augment sentencers’ decision-making. It can do so by: providing information about prior cases or estimating an offender’s risk of re-offending; guiding decisions using past judicial practices; identifying sources of bias; identifying individual and regional differences between sentencers or regions; assisting in developing and monitoring sentencing guidelines and possibly helping to identify which sentences or sanctions have been most effective.

So, where should sentencing go in the future?

At the federal level, Australia still lacks a Bill of Rights like the United States Constitution or the European Convention on Human Rights, although Victoria, the ACT and Queensland do have human rights legislation. While in practice these have had minimal effect on sentencing law and practice, it is important that every jurisdiction should legislate to embody the basic civil and political rights of its citizens.

Restorative and non-adversarial approaches to justice can reduce recidivism and increase all parties’ satisfaction with the criminal justice system. Problem-oriented courts and restorative justice should be expanded and better funded, as should community-based orders which can provide a more nuanced and therapeutic response to offending than custodial orders. Post-release support and throughcare for offenders is vital to assist offenders’ transition back into society. Employment, accommodation and continuing medical, psychological and substance use programs are vital if recidivism is to be reduced.

Much is expected of the sentencing system to reduce crime, yet it can only play a minor role in achieving this objective. Offenders who are sentenced represent only a small proportion of all those who commit a crime and, even in relation to those sentenced, the sanctions imposed may only be focused on the symptoms of crime rather than its underlying causes.

Sentencing should be measured against all its objectives, not just crime reduction. Does it punish the offender in a manner that is just in all the circumstances? Has it deterred the offender and others from committing crimes? Does it denounce the crime and provide opportunities for rehabilitation? Does it recognise the harm done to victims and provide some degree of reparation or restitution?

Only when we can answer ‘yes’ to all these questions will we know that the golden age of sentencing is upon us, gilt-free and a time for jubilation.