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Law to fit the crime
A review of criminal legislation including the Bail Act 1977 (Vic), the Crimes Act 1958 (Vic) and the Uniform Evidence Act are the latest initiatives to come out of the Victorian government’s “Justice Statement”, launched in 2004. The 10-year law reform program is intended to “modernise the justice system and ensure it remains flexible and responsive to change”. It comes amid criticisms of the state criminal justice system, more recently aimed at the bail system and the apparent leniency in criminal sentencing.
A recent report from the Australian Bureau of Statistics (ABS) on Prisoners in Australia 2006 has done little to improve the picture. Victoria drew with South Australia in recording the country’s highest proportional increase in prisoner populations. Furthermore, ABS sentencing figures revealed that suspended jail and non-custodial sentences are applied to more than 44 per cent of County Court and Supreme Court convictions.
Early this year the Sentencing Advisory Council (SAC) released several discussion papers, one of which proposed introducing a scheme of sentence indications and sentence discounts. The paper examined the possible merit of a formalised sentencing indication scheme in Victorian courts and the role of specified sentence discounts. Both measures aim to encourage early guilty pleas by ensuring that defendants better understand the different consequences of pleading guilty and being convicted. In turn, the measures should help reduce the delay in the justice system and reduce victim trauma. The proposal has attracted its fair share of criticism and support, all of which will be considered by the Council before it announces its formal assessment later in the year.
At around the same time the SAC paper was released the Victorian Law Reform Commission (VLRC) was completing the first stage of its evidence reference. The Uniform Evidence Law Report and Implementing the Uniform Evidence Act proposed modifications to current legislation, which are expected to be seen later this year. In the meantime, information about the new legislation is being formulated, while an educational resource for lawyers and judges is developed.
The VLRC has also been busy preparing its final report on the Bail Act 1977 (Vic). Among its considerations has been the maximum sentence for failures to meet surety; an issue recently highlighted by remarks from the Honourable Justice Gillard in R v Mokbel and Mokbel [2006 VSC 158] concerning the adequacy of the current penalty of two years. The Law Institute of Victoria made a submission to the VLRC supporting the current penalty and suggesting that imprisonment be available only where all other avenues have been exhausted or the conduct of the person providing surety warrants sanction.
Among other submissions, the Victorian Criminal Bar Association suggested that reverse onus provisions should be removed, explaining that the current burden on the accused to establish their entitlement to bail contravenes basic principles of criminal justice. With so many legislative changes imminent, including reforms to the Crimes Act to simplify and rationalise offences, the government certainly has its work cut out for it.
The recently announced State Budget helps. It has committed $272.8 million to increasing and improving police resources over the next four years and made financial pledges to: modernise the court system, maximise access to justice, upgrade coronial services, increase victim compensation payments and support Victoria’s homeless and disadvantaged. These budgetary measures provide a good start towards addressing the current controversies surrounding criminal law procedure.
More information
LIV Bookshop: Criminal Procedure Victoria 2005 by Richard Fox, $70.
Useful web links:
Visit the “Current Projects” page of the Victorian Law Reform Commission website at http://www.lawreform.vic.gov.au/
Disclaimer: The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Mr Brendan Kelly of our office.
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