National Judicial Sentencing Conference 7-9 February 2008
Introduction by the Honourable Chief Justice Peter Underwood AO
For those of you whom I have not had the pleasure of meeting yet, my name is Peter Underwood and I am the Chief Justice of Tasmania and the Chair of the National Judicial College of Australia. It is my privilege to join with the Dean of the Faculty of Law, here at the ANU, Professor Michael Coper to welcome you all here to day at the start of the 2008 Sentencing Conference. In doing so I acknowledge the Ngunnawal People, the Traditional Owners of the land upon which we meet. I would like to thank the organising committee who are listed in the programme for all their work at pulling this conference together. It is a lot of hard work and we are very grateful to them for that. I am pleased to be able to tell you that we have nearly 250 registrants for this conference, drawn from all States and the Territories of Australia. From overseas we have amongst our midst no less that 8 judges from Singapore’s subordinate courts and three delegates from New Zealand and to each of them I extend a special welcome to our country and of course, this conference. And, what an heterogeneous lot you are!! We have here today psychiatrists, prosecutors, parole board members, court officials, public servants, barristers and solicitors and the usual coven of judges, magistrates and academics. It is a really great cross section of people, all connected with the criminal justice system.
The imposition of sentence for criminal conduct is something in which the general public have a legitimate interest. As is written in the Preface to Mr Edney and Professor Bagaric’s book, “Australian Sentencing – Principles and Practice”, “Sentencing is a controversial and value laden area of the law. It dictates how the community deals with people who are felt to present a threat to some of the fabric that binds communities. Sentencing is the area of law where the State acts in its most coercive and authoritarian manner and hence it is vital that it is empirically and normatively justifiable.”
So, at this important conference we will review what parts of the sentencing system are empirically and normatively justifiable. In doing so, we must all bear steadfastly in mind that the key concepts of sentencing, punishment, retribution, deterrence, rehabilitation and so on, are fluid concepts and the relationship of each to the others changes as the nature of our society, its composition and its values change.
As you can see from your programme, we will begin by looking at a fundamental proposition; consistency in punishment for such consistency truly is, as Justice Mason said, a reflection of the notion of equal justice. Soon after we will dip into that perennial tug of war over the exercise of the sentencing discretion between the courts and the parliaments. Then it is into the detail, with such matters as suspended sentences, sentencing in local courts and sentencing and aboriginal customary law, a topic that has been getting a lot of attention in recent times. The views of jurors about the sentencing process are the subject of a current research programme in my own State. I think that this is something that we all need to think about. After all, we readily accept that the community has a central role to play in the criminal justice system by determining the issue of guilt, so why should it not also express a view about the sentencing process? Whilst the judiciary must not respond to public clamour, I believe that it has an obligation to listen to informed and sustained public opinion when imposing sentence. So I think that you will find that topic of interest tomorrow morning. Discounting sentences and pre-trial indications are also hot topics at the moment. There is a considerable body of support for these moves because at the least, they can save considerable time and cost. So it is a big programme and I hope you will each find it a worthwhile programme.
Academics have an important role to play in a review of the sentencing process. There no better way for judges to review their work than to see what the academics have to say about such matters as guide line judgments for sentencers, the role of customary law when sentencing indigenous Australians, the efficacy of suspended sentences and so on. Those of us who work at the sentencing coalface do not have the opportunity, nor many of us, the skills, to observe critically the big picture, and to note trends and changes in social attitudes and judicial practices. In this important respect society is dependent upon academia and it is very gratifying to see so many academics here today.
I said a moment ago that Professor Michael Coper is part of this welcoming committee and that is because this conference is a joint presentation by the National Australian Judicial College, and the College of Law at the Australian National University together with its National Institute of Social Sciences and the School of Law. There is a close bond between the ANU College of Law and the Judicial College for the University hosts the Judicial College and I would just like to take this opportunity to publicly thank Professor Coper, members of the College of Law and the University for their continuing very valuable contribution to the professional development of the Australian judiciary.
I will call upon Professor Coper to say a word. In doing so I express the wish that each of you will find today and the next two days interesting and stimulating, and that at the end of it each of you will reflect on what you have heard and discussed, and return to your work refreshed, enthused and inspired to improve your contribution to the criminal justice system.
Chief Justice Peter Underwood AO