The Court of Appeal resentenced an offender for sexual penetration of a child in WCB v The Queen [2010] VSCA 230. The Court’s own summary of the case can be read here.

The offender had been sentenced to a non-parole period of six years, which was reduced to four. The case would be unremarkable but for one ground of the appeal; it asserted community expectation had assumed an improper role in the sentencing judge’s discretion. The Court took the opportunity to judicially comment on issues of public expectations in sentencing, adding to things previously said by the Chief Justice on other occasions.

Warren CJ and Redlich JA [at 10]:

10 Under ground 3 it was submitted that the learned sentencing judge erred by taking into account an irrelevant consideration, namely that ‘the community would expect a lengthy sentence’, which may have contributed to the imposition of a sentence that was beyond the permissible range. As will appear, we have concluded that the sentence on count 1 was outside the range, but we reject the contention that this reflected a misapprehension or misapplication of community expectations.

11 The parties were given leave to file further written submissions on this ground. Ultimately, the Director made none. The appellant submitted that ‘absent proper research, consultation and evidence’, to have regard to such a consideration as community expectation is ‘fraught with great difficulty’. It was also said that this was an irrelevant consideration under the Sentencing Act 1991. The submission rests upon the assertion that the sentencing judge was likely to have imposed a higher sentence than was required at law in order to satisfy a public expectation as to the length of the sentence which should be imposed.

12 In summary we have reached the following conclusions with respect to this ground:

(a) There is a misconception prevalent within the public domain that generally, sentences imposed by the courts are too lenient.

(b) The sentencing judge was not adverting to that misconceived public perception in his sentencing remarks.

(c) When members of the public are informed about and objectively assess the matters which are relevant to a particular sentence, including sentencing principles and matters personal to the offender, there is generally little disparity between the sentence which they consider appropriate and the sentence fixed by the court.

(d) The sentencing judge in referring to community expectations was making reference to the expectations of ‘informed’ and objective members of the public.

(e) A judge may, in his or her sentencing remarks, refer to such community expectations and to the fact that the sentence involves a reaffirmation of society’s values.

(f) There is a pressing need for the community to be better informed about sentences imposed in all of the common areas of offending. Discussion about individual sentences can only be placed in a proper perspective if the sentences generally imposed for that type of offence are known by the public.

Public perceptions of sentencing

The Court went on to develop this issue [at 15]:

15 In part, sentencing principles rest upon an assumption that the public is adequately informed about sentencing. We shall later refer to the importance of public awareness if the principle of general deterrence is to have its intended effect. The appellant advanced his argument against the background that the level of public knowledge about sentencing for most categories of crime is seriously deficient. Central to the argument was the notion that the community labours under the misconception that sentences are too soft and demands harsher penalties. Thus it was said that, when his Honour referred to the sentencing expectations of the community, he must have been referring to the perception within the community that sentences should be longer such that his Honour was deflected from imposing a sentence in accordance with sentencing principles.

16 The community is very poorly informed about most sentences that are imposed. Every day many sentences are handed down across the Magistrates’, County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent. The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness.

The judgement outlines the general lack of knowledge about sentencing in the community, and quotes research from the Sentencing Advisory Council that, when informed of surrounding circumstances, members of the public tend to reach similar conclusions to sentencing judges on appropriate sentences.

In WCB, the appellant’s argument asserted that the sentencing judge intended to give effect to an ill-informed public perception that sentences are too lenient, leading to the imposition of a sentence higher than that which was permitted on a proper application of sentencing principles. The Court rejected that argument. It also expressly approved of judicial officers making reference to community values [at 34]:

34 A sentencing judge need not be reticent to express him or herself in terms of community values. The circumstances in which a sentencing court may refer to or draw upon the concerns or expectations of the community is not to be circumscribed as the appellant suggests. The courts do not exist independently of the society which they serve. As the sole legitimate administrator of criminal justice, they may be viewed as the trustees of the power of the community to judge and, where appropriate, punish its members. This requires that the courts vindicate the properly informed values of the community and, equally significantly, that they are seen to do so.

35 The expectations and values of the community are, in fact, often invoked in sentencing remarks and in the broader context of sentencing law. Central to the purposes of sentencing is public denunciation of the offending conduct and reinforcement of society’s expectations. The sentence communicates society’s condemnation of the offender’s conduct. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator: DPP v DJK [2003] VSCA 109. The sentence serves to reinforce the standards which society expects its members to observe. As Kirby J stated [at 118] in Ryan, the sentence represents:

a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.

…

37 Under the Sentencing Act 1991 the offender must receive ‘just punishment.’ It is punishment which does justice between the community and the offender. Hence Maxwell P in R v Avci discussed community concern about the prevalence and seriousness of rape and like crimes and the need for salutary sentences for those crimes. On a Directors’ appeal against sentence, a relevant test of the appropriateness of the sentence- that is to say whether the sentence has been imposed according to law- is whether the sentence would ‘shock’ the ‘public conscience’. What is there in contemplation is an assessment of the sentence by an objective, properly informed public, invested with an understanding of the relevant sentencing principles, cognisant of the circumstances of the case and aware of current sentencing practices. It was that same standard which the sentence judge was here seeking to apply.

44 We conclude that there is no foundation for the suggestion that his Honour fell into error, in response to ill-informed community expectations, by formulating a sentence that did not rest solely upon relevant sentencing considerations. His Honour’s remarks are quite inconsistent with such an inference. They appear in a paragraph which sets out a number of principles which are relevant to the sentencing discretion. The judge was stating no more than his conclusion that the instinctive synthesis required a lengthy sentence to be imposed and chose to express himself, as he was entitled to do, in terms of the community expectation. So much was recognised by counsel for the appellant on the plea, who conceded that condign punishment was required in view of the seriousness of the offending conduct. The sentencing judge did not adopt a criterion that called for a sentence of a greater length than that which would be required by the law. On the contrary his Honour’s reference to the community carried an underlying assumption of an objective, fully informed community that understood the range of sentencing that would be appropriate in the circumstances.

Prosecutor’s authority to nominate appropriate penalty

The Court of Appeal also addressed another ground of appeal, claiming that the prosecutor at the sentencing hearing had inappropriately submitted a specific penalty to the sentencing judge. The Court reviewed the record of proceedings and determined this hadn’t actually occurred. Argument that the prosecutor had been required to produce or tender specific instructions from the DPP to represent the prosecution’s position was rejected [at 52]:

52 This plea took place before the decision of this court in MacNeil Brown was published. For that reason the prosecutor did not seek to place any range before the sentencing judge. That said, we should make it clear that we do not accept the premise contained in the appellant’s written submission that MacNeil Brown requires the prosecutor to have obtained instructions as to the appropriate range prior to a hearing of the plea. Frequently, the submission as to range will not be made until after the conclusion of submissions made on behalf of the offender, when all relevant mitigatory circumstances have been made known. It is too often the case that expert or medical evidence concerning the offender is not produced until the hearing of the plea. Only after the plea in mitigation can the prosecutor make an informed submission as to the appropriate range which takes account of and makes reference to all of the factors which are said to support the range which is nominated. It is to be borne in mind that the prosecutor’s submission as to the appropriate range is not simply the provision of the top and bottom of the range. It must, like any other submission as to how a discretionary judgment is to be exercised, refer to the factors that bear upon the exercise of the discretion. Hence in supporting the range one would ordinarily expect some reference to the gravity of the offence and aggravating or mitigating factors. The degree of guidance provided to the prosecutor by those instructing him or her prior to or during the plea is a matter for the Office of Public Prosecutions. It may be that the prosecutor will have authority to make such an assessment after the plea in mitigation for the offender has concluded. What is required is that the prosecutor make a submission which states the prosecution’s position. It is not for the sentencing judge or this court to undertake an inquiry as to whether the prosecutor’s submission is based upon instructions. It will be presumed to be so: Humphries v The Queen [2010] VSCA 161. Whatever be the authority of the prosecutor, the extent to which the range submitted by the Crown has taken into account the matters raised on the offender’s behalf during the plea must be made clear to the sentencing judge.

Pre-sentence detention error

The last point of interest was the confirmation of the principle in DPP v TY [2009] VSCA 226 that errors in calculation of pre-sentence detention are not remediable by appeal. Slips can be fixed via s 104A(3) Sentencing Act, or not at all.