‘The legal system needs to catch up’: A push to abolish suspended sentences for child sex offenders was the headline in the Age Newspaper on the 28th of April 2024.

This article relates to proposed legislation by the Opposition to push to abolish suspended sentences for convicted child sex offenders that will go to the state parliament as part of a bill to overhaul punishments for paedophile rapists and abusers.

If this report is accurate, it raises concerns, including encroaching on the independence of the judiciary.

This approach to sentencing directs the courts through legislation on specific offences. It should be approached by a system of accountability of the courts rather than legislation.

This particular article refers to historical sexual offences, and we have no issue with the conviction, just the blanket sentence approach.

Legislating sentencing issues can have unintended consequences.

To understand why the judge might deliver a suspended sentence without wading through the judgment is not appropriate, these sentencing issues must remain within the bailiwick of the presiding judge, irrespective of the crime, as overarching rules for a court without the ability to nuance the conviction sentence to the case when every one of them is different is a step too far.

However, courts are trending towards avoiding reflecting community values and performing optimally. There is no effective mechanism to correct this behaviour, as there is no mechanism to review judges’ performance, whether that is their conviction rates when sitting alone, sentencing outcomes, recidivism of those convicted by that court, or the behaviour of the jurist in or out of court.

However, rather than the proposed legislation as reported, there is a desperate need for judges’ performance to be made accountable.

In Victoria, we have a Judicial Review and a Judicial Commission. Still, where these entities allow issues to fall through the cracks about performance and accountability for judges, there seems to be none.

The Judicial Commission investigating panel consists of three members appointed by the Commission: two former or current judicial officers or VCAT members and one community member of high standing selected from the pool of people appointed for this purpose.

Judicial reviews are heard in the Trial Division of the Supreme Court. The review examines whether the person who made the decision:

  • Had the power (was allowed) to make the decision.
  • Obeyed all aspects of the law in making the decision.
  • Considered everything that was legally relevant.

A judicial review does not re-consider the facts of the matter or focus on whether the decision was correct.

These arrangements could be considered as putting the fox in charge of the hen house.

There are excellent reasons for the judiciary’s independence from the government. However, improvements can still be achieved without compromising the autonomy of the jurists.

We employ the judiciary and reward them handsomely for their tasks; however, we need to be confident that they are performing to benchmarks and reflecting the values of the public in their determinations.

Victoria desperately needs a Judicial Review Commission similar to the model in New South Wales that…

‘Publishes information about criminal law to assist the courts in achieving consistency in imposing sentences and, more generally, in conducting criminal proceedings.

The Judicial Commission of NSW’s work is designed to enhance public confidence in the judiciary by promoting the highest judicial behaviour and decision-making standards. We:

  • Provide a continuing education and training programfor NSW judicial officers.
  • Criminal law and sentencing assist the courts in achieving consistency in imposing sentences and, more generally, in the conduct of criminal proceedings.
  • Examine complaintsabout judicial officers’ ability or behaviour.

To these functions, we would add,

    • To ensure the judiciary applies and takes responsibility for crime prevention and the deterrent effect of sentencing on perpetrators and the wider society.
    • Create and manage benchmarking for court administrative efficiencies and case outcomes.
    • Advise the executive arm of judicial officers not performing to the established standard. The executive arm and the parliament can decide on remedial action or discipline for jurists.

This will protect jurists and make the law more effective; consistency in applying the law is a cornerstone of a democracy.

We will never see relief from the current crisis in crime if jurists fail to take responsibility for the problem they contribute to in a significant way.