McIntyre, John --- "The Role of Juries in Sentencing: the Case Against" [2005] ALRCRefJl 14; (2005) 86 Australian Law Reform Commission Reform Journal 56

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Reform Issue 86 Winter 2005

This article appeared on pages 56 – 57 & 72 of the original journal.

The role of juries in sentencing: The case against

By John McIntyre*

The comments made by the Chief Justice, the Hon JJ Spigelman, sparked considerable media and political interest, and debate within the legal profession. In this article, the Law Society of NSW responds to the proposals.

At the Law Society of New South Wales’ dinner to mark the 2005 opening of the Law Term, Chief Justice Spigelman suggested developing a system in which judges consult with juries about sentencing. The system would involve ‘an in camera consultation process, protected by secrecy provisions, by which the trial judge discusses relevant issues with the jury after evidence and submission on sentence and prior to determining sentence’.¹ The proposal that judges consult with juries before sentencing will be considered by the New South Wales Law Reform Commission. While politicians and victims of crime advocates celebrated the idea, the legal profession has rightly voiced strong concerns about a proposal which threatens basic principles of the criminal justice system, and has considerable practical problems in application.

Chief Justice Spigelman is of the view that the proposal would improve both the quality of sentence decision making and enhance public confidence in the administration of criminal justice.² It is questionable whether jury involvement would enhance public confidence since the proposal would have limited application. Only a very small percentage of criminal cases are heard before a jury, so at best the proposal would create a perception that the public has an influence on sentencing decisions, when in reality input would be minimal. There is no doubt that the jury is an important link between the community and the criminal justice system. The jury is an effective institution for the determination of guilt; that is its role and it should not be expanded.

Too complex

Sentencing is a very complex process and demands considerable expertise and knowledge of relevant legislation, principles and guidelines. Jurors have a limited knowledge of sentencing processes; they lack sentencing experience, and possess little information about the sentences that defendants typically receive. Conversely, a judge has the necessary working knowledge and expertise to determine an appropriate sentence. It would be unnecessary, time-consuming, and expensive to educate every jury member on the intricacies of sentencing laws. Jurors would need to be this well informed for the consultation process to be meaningful rather than a politically popular gesture introduced to appease the public.

It is also questionable whether hearing the diverse opinions of 12 jury members on the available sentencing options, who have no former experience in sentencing, would actually assist the trial judge. For instance, one would expect that jurors would experience greater shock when dealing with violent crimes than judges who have had more exposure to such crimes. This could result in retribution being the primary factor considered by the jury when considering sentencing options, leading to recommendations to the judge for higher sentences. Opinions of the jury members would alter with each jury and this could well lead to inconsistency of sentences if their opinions are really taken into account by the trial judge. It is in the interests of the community that an appropriate sentence commensurate with the seriousness of the crime is imposed. Inconsistency in sentencing demonstrates unequal treatment under the law, and would erode the public confidence that the proposal is attempting to rebuild.

An onerous task

There is a danger that the involvement of the jury in sentencing in any capacity could distract jurors from their primary role of determining guilt. Of even more concern is that it could impact on the way that the jury determines whether or not the accused is guilty. If a jury is aware that it has a role in determining the sentence, then there is a real risk that the jury members may compromise: to decide to convict but to recommend a lighter sentence.³ The ability to have an input into the sentence could well increase the chance of conviction.

The secret in camera consultation process, which excludes any involvement of the accused, is a denial of natural justice, and is contrary to the fundamental principle that proceedings for an offence should be public in nature so that justice can be seen to be done. The consultations that occur between the trial judge and jury would obviously constitute an intrusion on the secrecy of the jury’s deliberations. The secrecy rule is paramount and protects jurors. It is vital that jurors can speak with candour and frankness in the jury room, and it would be a disincentive to do so if jurors knew that the judge could scrutinise their decision-making process, and this would occur under the proposal.

Another issue is whether jurors would even want to be involved in the sentencing process. The task of reaching a verdict is an onerous one. To be involved in sentencing would heavily increase the burden of being on a jury. Jurors would be inconvenienced by returning to court and having their social and work lives disrupted for a second time. Many jurors find that determining guilt is a distressing enough process and are anxious to leave court as soon as the trial is completed.⁴ This pressure could well be compounded by the responsibility of being involved in sentencing the defendant.

Practical problems

Involving the jury in a consultation process with the judge about sentencing would create a number of practical difficulties. Recalling the jury would impose extra costs and further delays in the criminal justice system. Sentencing takes place at least six weeks after the verdict at which time the jury would need to be reconvened. During the time lapse between verdict and sentencing jurors are likely to have read about the case in newspapers, and discussed it with colleagues, friends and family members. It is clearly undesirable for jurors to be contaminated by outside influences, and the ability of jurors to put aside prejudicial material is a matter of concern. Avoiding this problem of delay between verdict and sentencing would require a massive resource allocation to a justice system that already struggles with a lack of sufficient funding.

Chief Justice Spigelman highlighted the negative impact of selective and sensationalised media reporting on sentencing and the detrimental affect it has on the public’s confidence in the criminal justice system. Reference is made to research that indicates that jurors generally support the appropriateness of the sentences imposed, as do members of the public who are given the full details of a case. Surely this suggests that judges are getting sentencing decisions right, and do not require the input of the jury? Rather than introducing a highly controversial system, the better option is to address the public’s lack of proper understanding of sentencing decisions. It must be accepted that selective media reporting will always continue, and Chief Justice Spigelman acknowledged that ‘[t]he media has an understandable focus on high profile cases and controversy. What judges do on a day-to-day basis in the normal line of cases simply is not news, nor is it ever likely to be’.⁵ However, selective media reporting could be combated to an extent by those involved in the administration of criminal justice actively educating the public on the reality of sentencing decisions. This is preferable to resorting to a proposal involving juries in the sentencing process.

The proposal is unique and thought provoking, however, as discussed, it would create a multitude of practical problems as well as problems of principle. Sentencing is the province of a judge, and does not require interference from a jury.

* John McIntyre is the President of the Law Society of New South Wales.

Endnotes

1. J Spigelman, ‘A new Way to Sentence for Serious Crime’, (Paper presented at the Opening of Law Term Dinner of the Law Society of New South Wales, 31 January 2005).

2. Ibid.

3. E Lillquist, ‘The Puzzling Return of Jury Sentencing: Misgivings about Apprendi’, (2004) 82 NCL Rev 685.

4. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), 7.44.

5. J Spigelman, ‘A New Way to Sentence for Serious Crime’, (Paper presented at the Opening of Law Term Dinner of the Law Society of New South Wales, 31 January 2005).