Opeskin, Brian --- "The Sentencing of Federal Offenders" [2004] ALRCRefJl 28; (2004) 85 Australian Law Reform Commission Reform Journal 44

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Reform Issue 85 Summer 2004/05

This article appeared on pages 44-46 & 60 of the original journal.

The sentencing of federal offenders

By Brian Opeskin*

When Australians think of crime, they are likely to imagine the sort of crimes that fill the tabloid newspapers on a daily basis: murder, sexual assault, child abuse, robbery, drink driving, and the like. By and large, these offences are created by state and territory laws.

Much less frequently do people think of the parallel system of federal criminal justice: a system in which criminal conduct is proscribed by federal law, investigated by federal police or other federal agencies, and prosecuted by federal prosecutors. Yet such a system has existed in one form or another since the earliest years of federation in 1901, and constitutes an important part of the Australian legal system.

The Australian Law Reform Commission (ALRC) currently has an opportunity to inquire into and report on one aspect of the federal criminal justice system. In July 2004, the ALRC received new Terms of Reference in relation to Part IB of the Crimes Act 1914 (Cth). The ALRC has been asked to investigate whether the provisions of Part IB are an appropriate, effective and efficient mechanism for the sentencing, imprisonment, administration and release of federal offenders.

Background to the Inquiry

This is not the first time the ALRC has looked into these issues. In 1978—three years after the ALRC commenced operation—the Attorney-General asked the ALRC to inquire into the laws of the Commonwealth and the Australian Capital Territory relating to the imposition of punishment for offences. That Inquiry led to three discussion papers and two interim reports, culminating in a final report in 1988 (Sentencing, ALRC 44). The report recommended many changes to the federal criminal justice system, but only some of these were adopted when the Australian Parliament enacted Part IB of the Crimes Act in 1990.

Part IB has now been in operation for nearly 15 years. During that time, its provisions have attracted substantial criticism from judges and magistrates who have had to apply it in sentencing federal offenders. Strident criticisms were made soon after the provisions came into force, as courts grappled with a new legislative framework, which often differed from that used in sentencing state and territory offenders. Other criticisms have been more persistent. One recurrent criticism relates to the complexity of the drafting, which has variously been described as internally inconsistent, convoluted, confusing, opaque, unnecessarily time consuming, complicated and labyrinthine. Another is that the legislation is poorly organised: some legislative provisions relevant to sentencing are to be found outside Part IB; while some provisions within Part IB either do not relate to sentencing (such as the defendant’s fitness to plead), or are placed in an illogical order. In addition to these general criticisms, there are many complaints about specific provisions, which will be investigated during the course of the Inquiry.

The federal offender

Who, then, are federal offenders, and what are the crimes for which they are tried and convicted? The Constitution does not give the Australian Parliament a general power to enact criminal laws, but it does give it power to make criminal laws in relation to the subject matter of other specific legislative powers. For example, Parliament’s power to make laws with respect to ‘fisheries in Australian waters beyond territorial limits’ (s 51(x)) also enables it to create fisheries offences. The subject matter of federal offences, therefore, tracks the subject matter of the Commonwealth’s legislative responsibilities. The principal federal offences are found in the areas of social security, taxation, migration, corporations law, fisheries and customs (especially drug importation). There has been no comprehensive audit of the number or type of offences on the federal statute book, but there appears to be a large and growing number. A survey by the ALRC in 2002 revealed more than 1,500 federal offences; while in the first six months of 2004 alone, 25 federal Acts established new offences. Traditionally, many federal crimes have been regarded as ‘victimless’ in that they do not cause harm to specific individuals but to the polity as a whole. However, the enactment of new federal offences in relation to child sex tourism, sexual servitude, people smuggling and terrorism may change this perception. One of the tasks of the Inquiry is to consider the relevance of these trends to the sentencing of federal offenders.

Not much is known about federal offenders themselves. In 1988, the ALRC emphasised the need for better data on the offences for which sentences are imposed, the type and quantum of penalties, and the characteristics of the offence and the offender. Sixteen years later, that need has not been met. We know a little bit about federal offenders who are serving sentences of imprisonment. In June 2004, there were about 700 federal prisoners, which is about 4-5% of the total Australian prison population. Most federal prisoners (88%) are male; most (52%) are imprisoned in New South Wales; and most (67%) have been convicted of drug importation offences. But there are no publicly available data on the age or ethnicity of offenders; nor on the length of their head sentence or non-parole period. Even less is known about federal offenders who have been given non-custodial sentences, such as fines or community service orders. These offenders are largely absorbed into the corrective services administrations in the states and territories in which they are sentenced. The reason for this goes to a core question underlying the Inquiry, which warrants further explanation.

Piggybacking

Federations face a number of choices in their institutional arrangements for dealing with criminal conduct. In the United States, there are parallel state and federal systems of criminal justice, but federal crimes are dealt with by an independent system in which individuals are prosecuted in federal courts, sentenced under federal law, and imprisoned in federal prisons. In Canada, criminal law is a federal matter entirely, although prisoners with sentences of less than two years are housed in correctional institutions run by the provinces and territories. Australia has not chosen either path. At federation, the establishment of separate and parallel federal institutions was considered too expensive and inefficient. Instead, the federal system ‘piggybacked’ on the existing state systems. The Constitution authorised this by allowing the Australian Parliament to confer federal jurisdiction on state courts (s 77(iii)). To this day—with limited exceptions—all federal criminal matters are adjudicated in state and territory courts. But the Constitution went further: it required every state to make provision for the detention in its prisons of persons convicted of federal offences (s 120). Conveniently for the Commonwealth, there is no requirement that the states be compensated for providing this facility. To this day—without exception—all federal prisoners are accommodated within state and territory correctional facilities. Given the small number of federal prisoners, their geographic spread, and the large capital cost of establishing new facilities, it is unlikely that a federal prison will be set up in the near future.

Despite the continuation of these core elements—adjudication by state and territory courts, and imprisonment in state and territory gaols—the extent to which the federal criminal justice system has ‘piggybacked’ on the states has not been static. Federal police have not always investigated federal crimes; nor has an independent federal prosecutor always prosecuted them, as they do now. There has been a gradual federalisation of the federal criminal justice system over the past century. This is evident in the laws regulating the sentencing of federal offenders. The Judiciary Act 1903 (Cth) (ss 68 and 79) picks up and applies state and territory laws in the sentencing of federal offenders, unless federal law provides otherwise. When there is very little ‘federal provision’, the sentencing of federal offenders is almost entirely a matter for local determination; when there is substantial ‘federal provision’ there is less room for the operation of state and territory sentencing laws.

Part IB represents a shift in this balance because, on the matters that it covers, it makes substantial federal provision for the sentencing of federal offenders. However, the process of federalisation is by no means complete. Part IB is not a code, and still leaves room for state and territory sentencing laws to be picked up on many significant matters. An important question for the Inquiry is where the balance should lie on the federal-state scale.

Underlying that choice is the fact that state and territory sentencing laws can differ significantly from each other: the greater the reliance on those laws, the greater the opportunity for sentences imposed on federal offenders to vary according to the jurisdiction in which they are sentenced. That may make justice seem somewhat arbitrary, since defendants have no say in selecting the place of trial. The Constitution mandates that all trials shall be held in the state where the offence was committed (s 80). Where the elements of the offence are committed in more than one state—for example, in a conspiracy case—the prosecuting authority generally decides where to commence the proceedings.

What alternatives are there?

If ‘same crime, same time’ is an important policy objective in the sentencing of federal offenders, there are several ways in which this could be achieved. One option would be to harmonise state and territory sentencing laws to iron out the disparities between jurisdictions. Yet, the experience with the Model Criminal Code does not provide much cause for optimism. That project, which sought to harmonise the principles of criminal responsibility, took many years to complete and has achieved little in the way of legislative change in the states and territories. In the field of sentencing, with its political sensitivity in the ‘law and order debate’, the prospects of concerted action will be weaker still.

An alternative would be to establish a comprehensive federal sentencing regime for federal offenders. The contours of any such scheme recall many of the issues that were canvassed in ALRC 44 in determining an offender’s sentence. Should legislation specify the available sentencing options; and should the options be arranged in a sentencing hierarchy? Should legislation specify the factors that are relevant or irrelevant to choosing between those options, or to setting the quantum within a particular option? What factors are relevant to setting a non-parole period, and what relationship should that period bear to the head sentence? One particular difficulty is that Part IB (s 16A) currently makes no reference to ‘general deterrence’ as a relevant factor in the sentencing of federal offenders. Yet there is a strong judicial view that general deterrence is one of the fundamental purposes of sentencing, and that any list that fails to recognise this is unrealistic and deficient.

There are also many issues that affect the administration of a sentence once it has been imposed. Generally speaking, federal offenders who are sentenced to custodial sentences are treated in the same manner as their local prison counterparts, for example, in determining their security classification, access to facilities, or prison conditions. But different procedures apply at the point at which a prisoner may be eligible for release. Although most states and territories have established parole boards to determine whether an eligible prisoner will be released into the community on parole, in the case of federal offenders this is determined by an officer in the Commonwealth Attorney-General’s Department on the basis of written documentation, without a right of appearance or appeal. Among other things, the Inquiry will examine whether these procedures are adequate, how parole conditions should be set, and how compliance with them should be enforced.

* Brian Opeskin is a full-time Commissioner with the ALRC and leads the ALRC's Sentencing Inquiry.