IPA Research Recommends New Way To Boost Confidence In The Courts

“Australians deserve to have courts they can trust to always apply common sense standards of justice,” said Andrew Bushnell, Research Fellow at the Institute of Public Affairs.

“Giving victims the right to direct an appeal against manifestly inadequate sentences will help to restore the public’s confidence in the courts,” said Mr Bushnell.

New research from the IPA’s Criminal Justice Project finds that Australians have consistently reported low confidence in the performance of the courts, and there is reason to believe that this is, in part, based on rare but high profile cases in which judges hand down sentences that depart from normal community standards.

“The public’s low confidence in the courts is driven in part by rare and sensational cases in which judges get sentencing wrong. On the whole, the courts do a good job, but these few cases disproportionately affect how the public sees their performance.”

In cases like the recent decision to release into the community two offenders who assaulted a paramedic, the failsafe mechanism is the right of the Director of Public Prosecutions (and in some states, the Attorney-General) to appeal against the sentence.

However, despite little change in offending and sentencing patterns, the number of Crown appeals against sentence has declined over the past 10 years. Across the five mainland states, in 2008-09 there were 138 such appeals; in 2016-17, this number was just 85. The number of appeals is just a tiny fraction of the total number of guilty findings made by courts.

“We have seen a number of cases in recent years where the public has not felt that the punishment has fit the crime. Yet we are seeing fewer appeals by prosecutors against inadequate sentences than we did 10 years ago.”

“While there are good reasons for Crown appeals against sentence to be rare, there is no reason that they should be becoming rarer. Sentences are being tested by appeal less frequently, and this means that community standards can be forgotten more easily.”

The report recommends that not only should victims be consulted about the possibility of a Crown appeal against sentence, they should be able to direct the DPP to seek leave to appeal. The right would apply to serious indictable offences, and would lead to a hearing in which the Court of Appeal would decide whether to hear an appeal or not.

“The idea is to expand the number of people who have input into the decision to appeal or not against lenient sentences, in order to make the criminal justice system more sensitive to the interests of victims and the values of the community.

“Involving victims in this process will communicate to the judiciary the expectations of the community and send a signal to the public that their values, and the interests of victims, are being respected,” said Mr Bushnell.

Download the report: Victims Appeal: How to Address Manifestly Inadequate Sentences.