Transparency in Sentencing Practices Providing the public with transparent justice through detailed, accurate information is recognised as an

Transparency in Sentencing Practices Providing the public with transparent justice through detailed, accurate information is recognised as an

important mechanism to positively alter public perceptions (Doob & Roberts 1983; Freiberg 2003; Indermaur 1987). A 2006 Victorian report on public perceptions found that providing information to the public ‘reduces the likelihood that people will perceive a gulf between their expectations of the criminal justice system and the reality’ (Victorian Sentencing Advisory Council 2006:32). Thus as Roberts (2002:44) claims, ‘an obvious step…in order to promote greater [public] acceptability…is simply to increase public awareness’.

A prominent example of this association between increasing public confidence and transparency is evident in recent changes to Victorian sentencing practices. For example, the creation of the Victorian Sentencing Advisory Council (VSAC) in July 2004 (Sentencing Act 1991 (Vic) Part 9A), which according to Freiberg and Moore (2009:102) was established by a ‘reformist government that was keen to project itself as responsive to community concerns…Bridging the gap between the community, the courts and government by informing, educating and advising on sentencing issues’. Since its creation, the VSAC have advised the Victorian Government on a range of policy changes, many of which have been implemented in statute (Victorian Sentencing Advisory Council 2005a, 2005b, 2007a, 2008a, 2008b). A recent example of such was in 2007, where the VSAC recommended transparency be given to the sentencing practice which offers defendants a discount if they plead guilty, based on the timing of their plea (Victorian Sentencing Advisory Council 2007b). In addition to substantiating the discount, the VSAC proposed transparency as a mechanism to increase public understanding, by offering a clear statement that would ‘assist the public in gauging the actual severity or leniency of the overall sentence’ (Freiberg 2008:20).

In discussing this reform, the VSAC Chair, Arie Freiberg (2007:1) stated that:

We found that many people in the community were unaware that the law already allows courts to reduce a sentence if a person pleads guilty. [So] there was very clear support…to require judges…to state what effect…the guilty plea had on the final sentence…[So that] guilty pleas [could be] dealt with by the courts in a more open and transparent manner.

The sentence discount reform was enacted in the Sentencing Act 1991 (Vic) s6AAA in July 2008, however despite this closely related practice to plea bargaining becoming more transparent in this manner, no attempts have been made to increase plea bargaining’s transparency, or that of prosecutorial discretion in granting concessions.

Another example of increasing transparency in sentencing practices to improve public understanding and confidence is demonstrated by the VSAC’s recommendations to clearly define punishments. In its 2005 and 2008 reports on suspended sentences, the VSAC recommended that ‘home detention’ and ‘intensive correction orders’ be ‘recast as sentences in their own right, rather than treated at law as a form of prison sentence’ (Victorian Sentencing Advisory Council 2008a:xxv, xxvii). In releasing the 2005 recommendations, Freiberg (2005:1) highlighted the importance of transparency, claiming that ‘a clear Another example of increasing transparency in sentencing practices to improve public understanding and confidence is demonstrated by the VSAC’s recommendations to clearly define punishments. In its 2005 and 2008 reports on suspended sentences, the VSAC recommended that ‘home detention’ and ‘intensive correction orders’ be ‘recast as sentences in their own right, rather than treated at law as a form of prison sentence’ (Victorian Sentencing Advisory Council 2008a:xxv, xxvii). In releasing the 2005 recommendations, Freiberg (2005:1) highlighted the importance of transparency, claiming that ‘a clear

Transparency in Plea Bargaining? While the link between increasing public confidence and transparency is quite strong in relation to

Victorian sentencing practices, somewhat surprisingly, this link has not been made with plea bargaining. Instead, Victoria’s plea bargaining system directly contrasts with offering transparent justice. As Davis (1969:81) asked, ‘why should the prosecutor’s charging decision be immune to review by other officials and immune to review by the courts, even though our legal and governmental system elsewhere generally assumes the need for checking human frailty?’ The overwhelming response to this question from my research participants was that prosecutors could be trusted to consider victim, public and defendant interests, and not engage in plea bargaining for inappropriate motivations (30 out of 37 participants). When questioned as to how prosecutors could be trusted to perform this role without any formal scrutiny, participants claimed that their public interest roles and status provided a basis for engendering trust. As one defence counsel claimed, ‘we have to put some degree of faith on legal counsel to do their job in that regard’ (Defence Counsel participant 2008). Similarly, a judge maintained that ‘prosecutors are experienced and competent and know where it is appropriate…to make some form of compromise, without sacrificing the justice of the case they are presenting on behalf of the community’ (Judicial participant 2007).

Comparable views were expressed by legal participants in Mack and Roach Anleu’s research (2001:155), whereby ‘the implicit claim by defence and prosecution lawyers is that such discussions and resulting agreements are not coercive, but proper and ethical’. The fact that legal participants themselves believe prosecutors can be trusted to engage in plea bargaining appropriately, however, does little to redress the negative misperceptions that arise within the community; nor does it offer public and open justice. Instead, concerns exist because when plea bargaining occurs, there is no public transparency or Comparable views were expressed by legal participants in Mack and Roach Anleu’s research (2001:155), whereby ‘the implicit claim by defence and prosecution lawyers is that such discussions and resulting agreements are not coercive, but proper and ethical’. The fact that legal participants themselves believe prosecutors can be trusted to engage in plea bargaining appropriately, however, does little to redress the negative misperceptions that arise within the community; nor does it offer public and open justice. Instead, concerns exist because when plea bargaining occurs, there is no public transparency or

Trusting prosecutors also does not provide a mechanism to ensure consistency in their conduct or approach towards plea bargaining. While it might seem appropriate to presume that the three internal OPP policies would ensure some consistency in prosecutorial conduct, my research found that these appear to have achieved very little in shaping consistent approaches to and use of plea bargaining among the prosecutor participants. This finding was reflected in the perspectives of eighteen (of 37) participants, including almost one-quarter of prosecutors, who claimed prosecutors do not plea bargain at an early stage despite specific instructions in the policies to do so (n=7 defence counsel; n=7 judiciary; n=4 prosecutors). Interestingly, this finding was also evident in the perspectives of the remaining nineteen (of

37) participants who said prosecutors do plea bargain at an early stage, but this depends almost entirely upon which representatives are involved (n=4 defence counsel; n=15 prosecutors). As one defence counsel maintained, ‘it is somewhat quirky in some ways in that it depends who you talk to, but that is always the fact with human nature’ (Defence Counsel participant 2007).

The limited influence of the internal policies in informing prosecutorial conduct was also evident during my observations of prosecutors, in which some actively sought to initiate plea bargaining, while some displayed a reluctance to do so. When asked about this apparent reluctance, a focus on the trial emerged as a main factor motivating such behaviour. As one prosecutor claimed, ‘we just have to be careful in the event that the matter proceeds to trial. Otherwise they might know our weaknesses and run the trial based on that’ (Prosecutorial participant 2007). Another prosecutor considered this reluctance as applying only to junior, inexperienced prosecutors, who she saw as ‘preferring not to plea bargain or seriously consider defence offers’ (Prosecutorial participant 2007). She claimed, ‘a lot of the young ones are a lot more brutal and just want a conviction [on the maximum charges] at all costs, so they won’t plea bargain’ (Prosecutorial participant 2007). This view was reflected in discussions with two newly appointed junior prosecutors, where the common perspective was that ‘we don’t really have time to be chasing plea bargains because we have other work that is of greater value, like trial preparation’ (Prosecutorial participant 2007).

Although twelve of the fifteen prosecutors claiming prosecutorial inaction depended on the individual attributed this chiefly to junior prosecutors, seven (of eleven) defence counsel participants and all seven judicial participants argued that such inaction was also evident in the conduct of some senior prosecutors. As one judge maintained, ‘the prosecution have in the last few years gained a reputation for being hard- lined and unwilling to talk…[and] that has been problematic for [early] resolutions’ (Judicial participant 2007).

Based on both the interview and observation data, it thus became apparent that the incongruence between prosecutorial action and perceptions was strongly linked not only to the adversarial nature of the justice system, which traditionally favours conflict and secrecy over collaboration, but also to the human nature effect inherent to any non-formalised or unregulated process (Dawkins 2001; Lubet 2004; Jackson 2002; Mack & Roach Anleu 2007; Martin 1997; McEwan 1992; Moorhead 2007; Sampford et al 1999). This effect, as a prosecutor aptly observed, means ‘it depends entirely on the individuals involved whether it will go, how it will go and how well it will be done’ (Prosecutorial participant 2007). Importantly, the reluctance of some prosecutors to initiate discussions also emerged as being strongly linked to plea bargaining’s lack of external, transparent and formal recognition, which according to a prosecutor responsible for implementing training policies within the OPP, meant no training is specifically provided on plea bargaining. This prosecutor stated, ‘no there is none of that…There can’t be’ (Prosecutorial participant 2007). He maintained:

There should be encouragement [to plea bargain], but not official encouragement. We adhere to internal pressures to plea bargain already. Too much emphasis on it could have negative outcomes, like our case is weak or we have succumb to work[load] pressures...So we don’t officially train them on those areas and I don’t know if we should (Prosecutorial participant 2007).

The striking contradictions between the lack of training, what is encouraged by internal policies, and the contrasting perspectives and actions of participants, particularly the prosecutors, indicates that plea bargaining not only fails to uphold the principle of public and open justice, but its informality prevents consistent conduct and somewhat fuels cultural cynicism of prosecutorial conduct within Victoria’s legal community.

Transparency is the key to lifting the veil of secrecy

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion, as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice…the securities of security is publicity (Bentham 1843, as cited in Scott v Scott [1913] A.C. 417 at 477).

If plea bargaining is to be recognised or accepted as a legitimate criminal justice process that upholds the principles of consistency and public and open justice, then there is a need to provide it with transparency in the form of statutory formalisation. Reflecting this view, a defence counsel participant (2007) maintained that ‘if the plea bargain was upfront and not behind closed doors, that would give the public the upfrontedness [sic] that is explicable, that they need’. A prosecutor similarly claimed:

Plea bargaining itself should be clearly defined, so that every solicitor that enters the OPP, and every defence counsel knows they have a duty to the court, to the law, to the victim and the defendant. And this should be clearly and legally defined. So when they receive a brief of evidence, they should read it thoroughly and identify all of the issues and they should then communicate with the other side (Prosecutorial participant 2008).

If plea bargaining remains non-transparent, it will likely continue to be shrouded in secrecy and contentious public misperceptions and cynicism about its legitimacy will flourish. My research demonstrates that there is justification for implementing some degree of acknowledgement and control of plea bargaining in Victoria, particularly when contrasted with the focus on transparency in sentencing practices, and given that plea bargaining can significantly alter the seriousness of the defendant’s conviction(s) and sentence. If one supports the ideal that justice needs to be seen to be done, or at the very least, have some degree of openness, then this must be applied consistently to all criminal justice processes. Thus, transparency is required to lift the veil of secrecy surrounding plea bargaining in Victoria.

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Multiple punishments: the detention and removal of convicted non-citizens

Michael Grewcock, University of New South Wales 1