4031LAW Criminal Procedure and sentencing
4031LAW Criminal Procedure and Sentencing
Griffith University
4031LAW CRIMINAL PROCEDURE AND SENTENCING Ross Martin
NOVEMBER 31, 2014 Griffith University 0|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Criminal Procedure and Sentencing Week 2 Sentencing Discretion in sentencing Sentencing purposes Factors relevant to sentencing decision Guilty Pleas Cooperation with authorities Significance of drugs and alcohol Significance of mental condition and sentencing aboriginal offenders Totality principle and proportionality Parity Principle Indefinite detention Penalties Sentencing procedure- comparables Week 3 Charges and Prosecutions Statutory scheme for initiating criminal proceedings Prosecutorial decisions Indictments Specificity (particularity) Circumstances of Aggravation Joinder of Charges Nolle Prosequi Judicial review of prosecutorial decisions Week 4 Arrest; Police use of force; Searching arrestees in Custody and Bail Arrest Powers of arrest Arrest without warrant Arrest under warrant Use of force in making an arrest Duties relating to arrest Provision of information Duty to take a person before a court to be dealt with according to law What results flow from unlawful arrest? The fluctuating lawfulness of arrest Consequences of unlawful arrest Tasers Searches of persons in custody Bail Week 5 Controlled Ops Introduction to police powers Controlled activities /Controlled operations Further consideration of Ridgeway Public policy discretion Entrapment- common law Template to police powers Week 6 Search, Seizure and identification Introduction Search Warrants Executing the warrant
2 4 6 8 9 9 10 10 11 13 13 14 15 16 18 19 21 22 24 25 27 28 28 29 29 30 30 30 32 32 32 33 34 35 38 38 41 41 43 45 47 47 52 1|Page
4031LAW Criminal Procedure and Sentencing What happens if the warrant is found to be invalid Warrantless police powers Offences The concept of reasonableness Identification procedures Week 7 Questioning and Confessions The right to remain silent Police Questioning Confessional evidence Recording requirements Voluntariness of Confessions Discretion to exclude confessions Unfairness discretion The public policy discretion Supplementary information Week 8 Alternative approaches to criminal justice Therapeutic Jurisprudence Drug Courts The special Circumstances Court The Murri Court Restorative Justice Week 9 Committal Hearings and Trials Jurisdiction for Criminal Proceedings Simple and Regulatory Offences Indictable Offences Summary Determination of Indictable Offences Determination of Summary Offences in the Higher Courts Committal Processes A prima facie case? Hand up Committals Disclosure Trial Procedure Judge only Trials Week 10 Fair Trial and Abuse of Process A right to a fair trial? The common laws role in ensuring a fair trial The right to legal representation The quality of legal representation Incompetent representation Prejudicial Pre trial publicity Judicial and Prosecutorial partiality The juries inattention to the evidence Trial delay Oppressive Prosecution Other heads of fair trial doctrine or abuse of process Remedies Consolidation Week 11 DNA History DNA and the Polymerase Chain Reaction
Griffith University 53 54 55 55 56 59 59 60 61 61 63 63 63 64 73 75 75 76 78 80 80 80 80 81 81 82 82 83 84 84 86 89 91 94 95 95 96 97 97 98 98 98 99 101 101 2|Page
4031LAW Criminal Procedure and Sentencing Statistics Prosecutors Fallacy, Defence Fallacy and Bayes Theorem Defence Fallacy Other Jurisprudence Statutory Issues Week 12 Wrongful Conviction Restricted Appellate Avenues in Australia Pardon avenues in Queensland DNA Innocence Testing International reform Week 13 Verdicts and Appeals The differentiated Roles of judges and juries Jury Verdicts Alternative verdicts Double Jeopardy Appeals by a convicted person Grounds of appeal- unreasonable/ unsupportable jury verdict Grounds of appeal – Error of law by the trial judge
Griffith University 103 105 106 107 107 111 111 112 113 114 114 115 116 118 121 123
3|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Table of Contents
Week 2 Sentencing ................................................................................................................................. 5 Week 3 Charges and Prosecutions........................................................... Error! Bookmark not defined. Week 4 Arrest; Police use of force; Searching arrestees in Custody and Bail ........ Error! Bookmark not defined. Week 5: Controlled Ops ........................................................................... Error! Bookmark not defined. Week 6- Search, seizure and identification ............................................. Error! Bookmark not defined. Week 7: Questioning and Confessions .................................................... Error! Bookmark not defined. Supplementary Information for this week............................................... Error! Bookmark not defined. Week 8 Alternative Approaches to Criminal Justice ................................ Error! Bookmark not defined. Week 9 Committal Hearings and Trials.................................................... Error! Bookmark not defined. Week 10 Fair Trial and Abuse of Process ................................................. Error! Bookmark not defined. Week 11 DNA ........................................................................................... Error! Bookmark not defined. Week 12 Wrongful Conviction ................................................................. Error! Bookmark not defined. Week 13 Verdicts and Appeals ................................................................ Error! Bookmark not defined.
4|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Week 2 Sentencing After a guilty verdict has been returned or a plea of guilty has been entered, the sentencing will take place. If the charges have been dealt with on indictment, the sentencing will take place in the District or Supreme Court. If the charge has been dealt with summarily, the Magistrate will sentence the offender. The main source of law in Queensland in relation to sentencing is the Penalties and Sentences Act 1992 (Qld) (PSA). The maximum penalty is usually specified in the section that creates the offence, but, as confirmed by ss 47 and 153 of the PSA, the sentencer can, and usually does, sentence the offender to less than the maximum penalty. s 9(1) Penalties & Sentences Act 1992 The ONLY purposes for which a sentence may be imposed: a) Just punishment b) Rehabilitation c) Deterrence of offender or others d) Denunciation e) Protection of the community f) A combination of 2 or more of above Discretion in Sentencing Despite the framework imposed by legislation and common law sentencing doctrine, ample room remains for the exercise of a broad discretion. Findlay et al have noted that the task of sentencing cannot be justly performed without a measure of discretion. They consider that justice requires that the sentence be tailored to the particular facts in each case. In R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, at 189, the Queensland Court of Appeal noted the breadth of the sentencing discretion:
[A] sentencing judge also has an extremely wide discretion to be exercised within the limits of the principles which are applicable: "As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty" Lowe [v. The Queen (1984) 154 CLR 606] at 612 per Mason J. In Wong v R (2001) 207 CLR 584, 611, Gaudron, Gummow and Hayne JJ said: [T]he reasons of the [NSW] Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 5|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
"two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. [75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [76] In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with the "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. (footnotes omitted)
In Markarian v R (2005) 215 ALR 213, the High Court endorsed the approach in Wong, but at 224-225, Gleeson CJ, Gummow, Hayne and Callinan JJ added: Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
6|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Issue to consider: Does the “instinctive synthesis” sentencing process engender transparency or is the process merely ‘plucking figures from the air’? Another important issue to consider is that of consistency between like cases, and the concept of the “range” of available sentence for a given offence. Guideline Judgements In 2010, the PSA was amended to allow the Court of Appeal to hand down “guideline judgments”: ss 15AA-15AL PSA. Guideline Judgments are handed down by the Court of Appeal to provide additional guidance for judges about sentencing in particular types of cases. The provisions are still new and the Court of Appeal has yet to utilise these powers. A Guideline Judgment might apply to sentences generally or to a particular type of offence/s, a particular type of penalty or a particular category of offender: s 15AA. The provisions don’t remove judicial discretion, but provide that a Guideline Judgment is an additional factor which must be taken into consideration in sentencing: s 15AL. Arguably, sentencing has become a vexed political issue because of the way the issue is reported in the media. The power to issue guideline judgments is designed to promote sentencing consistency but also to promote public confidence in sentencing: s 15AH.
Sentencing Purposes Section 9(1) PSA lists the exclusive purposes for which a sentence can be imposed under Queensland law. These are: rehabilitation, deterrence, (both general and personal), denunciation, community protection and proportionate punishment. ‘Proportionate punishment’ is also known as ‘just deserts punishment’. In the lecture we will briefly consider the underpinnings of these purposes. It will be noted that a fundamental tension exists between the purposes. Often, one purpose will suggest that a severe sentence is called for; another purpose might demand a more lenient approach. The legislation gives no direct guidance as to how this tension is to be resolved in particular cases. However in Veen v R (No 2) (1988) 164 CLR 465, (Veen (No 2)) the High Court indicated that, while all the sentencing purposes should be considered, a sentence cannot be imposed which would be disproportionate to the circumstances of the offence and the offender. The High Court observed, at [13]: [T]he troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different 7|Page
Griffith University
4031LAW CRIMINAL PROCEDURE AND SENTENCING Ross Martin
NOVEMBER 31, 2014 Griffith University 0|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Criminal Procedure and Sentencing Week 2 Sentencing Discretion in sentencing Sentencing purposes Factors relevant to sentencing decision Guilty Pleas Cooperation with authorities Significance of drugs and alcohol Significance of mental condition and sentencing aboriginal offenders Totality principle and proportionality Parity Principle Indefinite detention Penalties Sentencing procedure- comparables Week 3 Charges and Prosecutions Statutory scheme for initiating criminal proceedings Prosecutorial decisions Indictments Specificity (particularity) Circumstances of Aggravation Joinder of Charges Nolle Prosequi Judicial review of prosecutorial decisions Week 4 Arrest; Police use of force; Searching arrestees in Custody and Bail Arrest Powers of arrest Arrest without warrant Arrest under warrant Use of force in making an arrest Duties relating to arrest Provision of information Duty to take a person before a court to be dealt with according to law What results flow from unlawful arrest? The fluctuating lawfulness of arrest Consequences of unlawful arrest Tasers Searches of persons in custody Bail Week 5 Controlled Ops Introduction to police powers Controlled activities /Controlled operations Further consideration of Ridgeway Public policy discretion Entrapment- common law Template to police powers Week 6 Search, Seizure and identification Introduction Search Warrants Executing the warrant
2 4 6 8 9 9 10 10 11 13 13 14 15 16 18 19 21 22 24 25 27 28 28 29 29 30 30 30 32 32 32 33 34 35 38 38 41 41 43 45 47 47 52 1|Page
4031LAW Criminal Procedure and Sentencing What happens if the warrant is found to be invalid Warrantless police powers Offences The concept of reasonableness Identification procedures Week 7 Questioning and Confessions The right to remain silent Police Questioning Confessional evidence Recording requirements Voluntariness of Confessions Discretion to exclude confessions Unfairness discretion The public policy discretion Supplementary information Week 8 Alternative approaches to criminal justice Therapeutic Jurisprudence Drug Courts The special Circumstances Court The Murri Court Restorative Justice Week 9 Committal Hearings and Trials Jurisdiction for Criminal Proceedings Simple and Regulatory Offences Indictable Offences Summary Determination of Indictable Offences Determination of Summary Offences in the Higher Courts Committal Processes A prima facie case? Hand up Committals Disclosure Trial Procedure Judge only Trials Week 10 Fair Trial and Abuse of Process A right to a fair trial? The common laws role in ensuring a fair trial The right to legal representation The quality of legal representation Incompetent representation Prejudicial Pre trial publicity Judicial and Prosecutorial partiality The juries inattention to the evidence Trial delay Oppressive Prosecution Other heads of fair trial doctrine or abuse of process Remedies Consolidation Week 11 DNA History DNA and the Polymerase Chain Reaction
Griffith University 53 54 55 55 56 59 59 60 61 61 63 63 63 64 73 75 75 76 78 80 80 80 80 81 81 82 82 83 84 84 86 89 91 94 95 95 96 97 97 98 98 98 99 101 101 2|Page
4031LAW Criminal Procedure and Sentencing Statistics Prosecutors Fallacy, Defence Fallacy and Bayes Theorem Defence Fallacy Other Jurisprudence Statutory Issues Week 12 Wrongful Conviction Restricted Appellate Avenues in Australia Pardon avenues in Queensland DNA Innocence Testing International reform Week 13 Verdicts and Appeals The differentiated Roles of judges and juries Jury Verdicts Alternative verdicts Double Jeopardy Appeals by a convicted person Grounds of appeal- unreasonable/ unsupportable jury verdict Grounds of appeal – Error of law by the trial judge
Griffith University 103 105 106 107 107 111 111 112 113 114 114 115 116 118 121 123
3|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Table of Contents
Week 2 Sentencing ................................................................................................................................. 5 Week 3 Charges and Prosecutions........................................................... Error! Bookmark not defined. Week 4 Arrest; Police use of force; Searching arrestees in Custody and Bail ........ Error! Bookmark not defined. Week 5: Controlled Ops ........................................................................... Error! Bookmark not defined. Week 6- Search, seizure and identification ............................................. Error! Bookmark not defined. Week 7: Questioning and Confessions .................................................... Error! Bookmark not defined. Supplementary Information for this week............................................... Error! Bookmark not defined. Week 8 Alternative Approaches to Criminal Justice ................................ Error! Bookmark not defined. Week 9 Committal Hearings and Trials.................................................... Error! Bookmark not defined. Week 10 Fair Trial and Abuse of Process ................................................. Error! Bookmark not defined. Week 11 DNA ........................................................................................... Error! Bookmark not defined. Week 12 Wrongful Conviction ................................................................. Error! Bookmark not defined. Week 13 Verdicts and Appeals ................................................................ Error! Bookmark not defined.
4|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Week 2 Sentencing After a guilty verdict has been returned or a plea of guilty has been entered, the sentencing will take place. If the charges have been dealt with on indictment, the sentencing will take place in the District or Supreme Court. If the charge has been dealt with summarily, the Magistrate will sentence the offender. The main source of law in Queensland in relation to sentencing is the Penalties and Sentences Act 1992 (Qld) (PSA). The maximum penalty is usually specified in the section that creates the offence, but, as confirmed by ss 47 and 153 of the PSA, the sentencer can, and usually does, sentence the offender to less than the maximum penalty. s 9(1) Penalties & Sentences Act 1992 The ONLY purposes for which a sentence may be imposed: a) Just punishment b) Rehabilitation c) Deterrence of offender or others d) Denunciation e) Protection of the community f) A combination of 2 or more of above Discretion in Sentencing Despite the framework imposed by legislation and common law sentencing doctrine, ample room remains for the exercise of a broad discretion. Findlay et al have noted that the task of sentencing cannot be justly performed without a measure of discretion. They consider that justice requires that the sentence be tailored to the particular facts in each case. In R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, at 189, the Queensland Court of Appeal noted the breadth of the sentencing discretion:
[A] sentencing judge also has an extremely wide discretion to be exercised within the limits of the principles which are applicable: "As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty" Lowe [v. The Queen (1984) 154 CLR 606] at 612 per Mason J. In Wong v R (2001) 207 CLR 584, 611, Gaudron, Gummow and Hayne JJ said: [T]he reasons of the [NSW] Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 5|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
"two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. [75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [76] In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with the "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. (footnotes omitted)
In Markarian v R (2005) 215 ALR 213, the High Court endorsed the approach in Wong, but at 224-225, Gleeson CJ, Gummow, Hayne and Callinan JJ added: Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of “instinctive synthesis”, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression “instinctive synthesis” may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
6|Page
4031LAW Criminal Procedure and Sentencing
Griffith University
Issue to consider: Does the “instinctive synthesis” sentencing process engender transparency or is the process merely ‘plucking figures from the air’? Another important issue to consider is that of consistency between like cases, and the concept of the “range” of available sentence for a given offence. Guideline Judgements In 2010, the PSA was amended to allow the Court of Appeal to hand down “guideline judgments”: ss 15AA-15AL PSA. Guideline Judgments are handed down by the Court of Appeal to provide additional guidance for judges about sentencing in particular types of cases. The provisions are still new and the Court of Appeal has yet to utilise these powers. A Guideline Judgment might apply to sentences generally or to a particular type of offence/s, a particular type of penalty or a particular category of offender: s 15AA. The provisions don’t remove judicial discretion, but provide that a Guideline Judgment is an additional factor which must be taken into consideration in sentencing: s 15AL. Arguably, sentencing has become a vexed political issue because of the way the issue is reported in the media. The power to issue guideline judgments is designed to promote sentencing consistency but also to promote public confidence in sentencing: s 15AH.
Sentencing Purposes Section 9(1) PSA lists the exclusive purposes for which a sentence can be imposed under Queensland law. These are: rehabilitation, deterrence, (both general and personal), denunciation, community protection and proportionate punishment. ‘Proportionate punishment’ is also known as ‘just deserts punishment’. In the lecture we will briefly consider the underpinnings of these purposes. It will be noted that a fundamental tension exists between the purposes. Often, one purpose will suggest that a severe sentence is called for; another purpose might demand a more lenient approach. The legislation gives no direct guidance as to how this tension is to be resolved in particular cases. However in Veen v R (No 2) (1988) 164 CLR 465, (Veen (No 2)) the High Court indicated that, while all the sentencing purposes should be considered, a sentence cannot be imposed which would be disproportionate to the circumstances of the offence and the offender. The High Court observed, at [13]: [T]he troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different 7|Page
