May 5, 2015  |  Second reading speech

Sentencing Amendment (Correction of Sentencing Error) Bill 2015

Mr CARROLL(Niddrie) — I acknowledge the member for Hawthorn, and I thank him for his contribution. I appreciate the bipartisan nature of his support for this legislation. I am pleased to speak on the Sentencing Amendment (Correction of Sentencing Error) Bill 2015. It is an important bill. It will clarify and expand the power of a sentencing court to correct errors in sentences it has imposed. It will enable clear errors to be corrected without the need for a party to commence an appeal or judicial review into proceedings.

Essentially this legislation can be broken down into two different parts. Firstly, the bill removes the current 14-day time limit on the application of section 104A of the Sentencing Act 1991, which gives sentencing judges the power to correct minor or clerical errors in sentences they have imposed. This time limit has proved unworkable in practice as errors are regularly discovered outside that period, such as when counsel is reviewing the sentencing orders to determine whether there are good prospects of appealing the sentence. Secondly, the bill introduces a new power, which is based on New South Wales legislation, providing that the sentencing court may reopen a proceeding in which it has imposed a penalty that could be considered contrary to law or in which it has failed to impose a penalty required to be imposed by law.

A penalty will be contrary to law if it was beyond the court’s power to impose. Upon the reopening of the proceeding the court will be able to impose a penalty in accordance with the law. This new power is necessary because under the current law a sentencing judge has no power to recall and correct a penalty, even when there was no power to impose the penalty. This means offenders and the Crown must bring an appeal against the sentence or institute judicial review proceedings to correct the error. This can be time consuming and expensive.

The shadow Attorney-General, the member for Hawthorn, and I both had the pleasure of attending the biennial conference of District Court and County Court judges of Australia and New Zealand on 9 April. I appreciated the member for Hawthorn’s support at a function I spoke at. I think you could say we both networked the room, and the feedback we got from stakeholders and judges was that judges have an incredible workload when it comes to the complex nature of sentencing law.

The Attorney-General is determined to make sure, whether it be by way of advice to jurors or education for judges, that our law and order system operates as efficiently and sustainably as possible. As we know, our justice system is under increasing pressure. Even in today’s budget we see the allocation of funding to our law and order agenda, and that is positive. I congratulate the Attorney-General as well as the Minister for Police and Minister for Corrections for finding some solutions to problems in the justice space that we inherited from the previous government.

It is important that this legislation has bipartisan support. It achieves the right balance. I commend the Department of Justice and Regulation for its work, particularly in extensive consultation with stakeholders, including the Office of Public Prosecutions (OPP). With the house’s indulgence, I congratulate John Cain, former government solicitor, on his recent appointment as the solicitor for public prosecutions. I was fortunate to do my articles at the Victorian Government Solicitor’s Office under John Cain, and he even moved my admission. He is going on to bigger and better things, and his is a fantastic appointment of which the Attorney-General, the Premier and others involved should be proud. There was extensive consultation on this legislation with the OPP, Victoria Legal Aid and Victoria Police, and the department has done a great job in getting the balance right.

I do not think there can be any criticism of this legislation. We have got the balance right. Section 104A allows for the correction of certain errors, and the removal of the current 14-day time limit will not unduly affect the principle of finality, because the section permits the correction of minor errors. The substance of a sentence will not be significantly altered. Further, the new ‘contrary to law’ provision allows for the correction of serious errors, including situations in which a court has sentenced in ignorance of a relevant secondary provision. In such cases the urgency of correcting the record will outweigh the inconvenience associated with amending the order sometime after sentencing.

At the heart of this legislation are the Attorney-General’s attempts to deal with an incredibly complex subject matter. Sentencing is not only complex but also an incredibly difficult exercise. It requires judges to take into account not only the gravity of an offence and the offender’s circumstances but also a number of prescriptive secondary rules. Anyone who has had a bit to do with sentencing knows it is an incredibly complex matter. The rules of evidence are complex, and getting the balance right is always critical.

It is fair to say that from time to time judges and magistrates make a mistake by imposing a penalty that is contrary to law. At other times a judge may fail to impose a penalty that the law requires. Some such errors are corrected on appeal and some are corrected following a judicial review of proceedings. Either way, this has the potential to cause delay in finalising criminal matters and adds significantly to the cost borne by the offender and the prosecution. More and more we are seeing trials go from start to finish and the courts under enormous pressure, and it is great to see the Attorney-General leading the way with additional resources for Victoria Legal Aid that will greatly benefit our court system and the judicial process in Victoria.

I draw members’ attention to one particular case that in many respects highlights the situation this legislation is trying to correct. In the case of DPP v. Edwards, which was a Court of Appeal case in Victoria back in 2012, the sentencing judge had imposed a suspended sentence on a charge of recklessly causing serious injury. However, the power to suspend a sentence of imprisonment for that offence had previously been abolished. The Court of Appeal by majority held that the judge could not recall that sentence and impose one in accordance with the law because his role in the matter had finished. This meant that parties must apply to a higher court to correct such an error, no matter how clear it might have been. This legislation goes to the heart of DPP v. Edwards. It clarifies and expands the sentencing court’s power to correct errors in sentences it has imposed.

I will not cover the two major sections I covered earlier, but I will talk a little more about the new correction power, which is an important component of this legislation. Adding the new correction power to the Sentencing Act 1991 allows a sentencing judge or another member of the same court to reopen proceedings in which a penalty contrary to law has been imposed. Upon reopening, the judge may impose a penalty that is in accordance with the law, thus correcting the subject matter at hand. This new correction power is modelled on section 43 of the New South Wales Crimes (Sentencing Procedure) Act 1999. This provision was the subject of the High Court’s decision in Achurch v. The Queen last year. In that case the High Court interpreted the New South Wales provision on the basis that it was not intended to act as a substitute for the appeal process.

Importantly, consistent with the High Court’s observations in Achurch v. The Queen, this bill preserves the proper role of appeal in the criminal justice system. The new provision allows for the correction of penalties that are contrary to law. Even more so, the existence of the correction power does not take away from a party’s right of appeal, so natural justice and judicial process will be followed.

There has been incredibly strong public interest in ensuring that there is finality to criminal proceedings. As I mentioned earlier, only a few weeks ago I represented the Attorney-General at the biennial conference of County Court and District Court judges of Australia and New Zealand, and overwhelmingly the stakeholders who spoke to me, including judges, barristers and solicitors, talked about a stretched judicial system under enormous pressure. With what the Attorney-General is intending to do, he is committed to making sure that the legal system operates not only fairly but sustainably. It is important going forward that we have a justice and law and order system in Victoria that is not only fair but sustainable, and today’s budget goes to the heart of that and puts more money into legal aid to ensure proper representation and to ensure that our judicial process operates to its full potential.