COMPARATIVE AUSTRALIAN SENTENCING PRACTICES, MANDATORY SENTENCING AND THE RELATIVE IMPACT ON THE SCOPE OF JUDICIAL DISCRETION

ROBYN EDMANSON

ABSTRACT: This essay responds to the following three questions: should sentencing be more objective (mathematical) or remain a subjective balancing act; how much discretion in the sentencing task should be given to the magistrate or judge; and whether there is a role for mandatory sentencing. While it is argued greater objectivity in sentencing should be injected using artificial intelligence for greater consistency in jurisdictions applying common law methodologies, in the context of Queensland’s comparative sentencing system and mandatory sentencing regimes, the judicial balancing act is adequately constrained.1

I Introduction

This essay draws on High Court authority, common law and scholarly research in response to three questions relating to contrasting sentencing methodologies, laws and practices in the context of Australia’s sentencing landscape. First, it will be argued that while the sentencing task requires balancing the inherent tension2 between conceptions of individualized justice3 and consistency4 there is greater scope for more objectivity using artificial intelligence (AI)5 in the ‘two-tiered or structured approach.’6 By contrast, the orthodox judicial view, mediated through the concept of ‘judicial discretion’7 as a consistency promoting mechanism, is that applying this structured approach to identify a sentence undermines the ‘instinctive synthesis’8 to decide each unique case.9 Second, as to whether judicial discretion is sufficiently wide, this essay argues for greater objectivity other than for Queensland courts which apply a comparative methodology. However, this essay finally argues that mandatory sentencing laws should play no role because of their largely unjustified interference in the

1 Submitted for assessment LAW3469

2 Justice James Spigelman, ‘Consistency and Sentencing’ (2008) 82(7) Australian Law Journal 450.

3 Elias v The Queen [2013] HCA 31, [27]; Bugmy v The Queen [2013] HCA 37, [36], [47] these High Court judgments emphasised the importance of individualised justice; Sarah Krasnostein and Arie Freiberg, ‘Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?’ (2013) 76 Law and Contemporary Problems 265. The authors argue the balance is between ‘individualism’ and ‘comparativism.

4 See, eg, Lowe v The Queen (1984) 154 CLR 606 [610─611] (Mason CJ) stated: ‘Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion in public confidence in the integrity of the administration of justice.’

5 Nigel Stobbs, Dan Hunter and Mirko Bagaric, ‘Can Sentencing Be Enhanced by the Use of Artificial Intelligence? Criminal Law Journal (2017) 41(5) 261, 262.

6 Wong v R (2001) 207 CLR 584 [74] (Gaudron, Gummow, Hayne JJ) (‘Wong’) in their joint judgment condemned the NSWCCA’s use of numerical guidelines for sentencing drug couriers which attached ranges of quantities for particular drugs stating “a mathematical approach to sentencing in which there are to be “increment[s]” to, or decrements from, a predetermined range of sentences…referred to as a “two-stage approach” to sentencing.’

7 Jurisic [1998] NSWSC 423 (12 October 1998) at 245 (Sully J) stated: ‘sentencing is an art and not a science;’ Geraldine MacKenzie, 'The Art of Balancing' (2003) 28 Alternative Law Journal 288, 289. The author stated all 31 judges surveyed in an interview-based study view sentencing as an art and not a science.

8 See, eg, R v Williscroft [1975] VR 292, 300 (Adam and Crockett JJ) stated: ‘Now, ultimately, every sentence imposed represents the judge’s instinctive synthesis of all the various aspects involved in the punitive process.’

9 Brian J Preston and Hugh Donnelly, Judicial Commission of New South Wales: Research Monograph No 32’ Achieving Consistency and Transparency for Environmental Offences 218 (2008) 9 https://www.judcom.nsw.gov.au/wp-content/uploads/2016/07/research-monograph-32.pdf sentencing task otherwise open to divert individuals to non-custodial programs and sentences deemed without societal risk.

Ii The Case For Greater Objectivity In Sentencing

It is contended that greater objectivity from the use of AI as part of a structured decisionmaking process provides for more consistency for offenders, victims and the public to the extent it conveys the desired degree of censure of the offender for the offence. 10 AI is currently used without judicial involvement to decide 90% of standardized sanctions for a range of criminal offences.11 Therefore its use could be extended to apply as a comparative reference point12 to enhance human decision-making for more numerically consistent and predictable sentences for serious offences.13 Prima facie, sentencing law and practice should be amenable to using computerised risk assessment tools involving AI for the higher courts because most of the relevant facts are already established prior to the passing of the sentence.14 The High Court majority in Markarian v The Queen (‘Markarian’)15 did not oppose greater objectivity in sentencing for ‘simple’ cases of only a small number of considerations although it stopped short of identifying what a ‘simple’ case is.16

Given the sentencer’s wide subjective discretion, AI could be used to improve transparency; 17 overcome potential subconscious bias; and reduce costs and sentencing disparity between sentencers from different courts.18 Stobbs, Hunter and Bagaric note the lack of transparency resulting from the prevention of the sentencer to ascribe the degree of weight to each sentencing variable as a considerable shortcoming because it compromises due process.19 In relation to costs, the use of AI would significantly save public expenditure which ran at over

10 Sarah Krasnostein and Arie Freiberg (n 3).

11 Gaye Lansdell et al, ‘Infringement Systems in Australia: A Precarious Blurring of Civil and Criminal Sanctions?’ (2012)

37 Alternative Law Journal 41; Mirko Bagaric, ‘Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with On the Spot’ (1998) 24 Monash University Law Review 231.

12 Stobbs, Hunter and Bagaric (n 5) 262.

13 Ibid at 272 the authors state US risk assessment tools focus on ‘measuring an individual’s chances of endangering public safety by re-offending;’ Terry Hewton, ‘Instinctive Synthesis, Structured Reasoning, and Punishment Guidelines: Judicial Discretion in the Modern Sentencing Process (2010) 31 Adelaide Law Review 79, 81.

14 Queensland Sentencing Advisory Council, ‘Queensland Sentencing Guide: Sentencing Process in Queensland’ (February, 2021) 8 https://www.sentencingcouncil.qld.gov.au/__data/assets/pdf_file/0004/572161/queensland-sentencing-guide.pdf

15 (2005) 228 CLR 357 [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ) (‘Markarian’), affd Barbaro v R; Zirilli v R [2014] HCA 2 [34] (French CJ, Hayne, Kiefel, Bell JJ) stated sentencing is not a mathematical exercise that ‘cannot, and should not, be broken down into some set of component parts.’

16 Note the Markarian majority court neither identified what a ‘complex’ case is.

17 Stobbs, Hunter and Bagaric (n 5) at 266 argue that the sentencing process is obscured by the fact that sentencing courts are not permitted to set out the degree of weight ascribed to each variable.

18 Kevin Anderson, 'Sentencing in Magistrates' Courts' in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987.

19 Stobbs, Hunter and Bagaric (n 5) 262.

$1.105 billion in 202220 comprising mostly sentencing, according to the latest figures from the Australian Bureau of Statistics.21

In addition, subconscious bias may account for significant variations in sentencing between groups and the courts. For example, Indigenous offenders are significantly over-represented in Australian prisons and, in some cases, twice as likely to be imprisoned as similarly placed non-Indigenous offenders.22 A further example of subconscious bias was the result of a US study finding 77% of unattractive defendants received a prison term while only 46% of attractive defendants were subjected to the same penalty.23 Sentencing disparity was found in the courts following a study involving identical facts given to 18 NSW magistrates with significant variation in outcomes.24

AI has long been used to inform legal practice25 and currently infuses a range of complex areas of law.26 For indictable offences, AI could be used to efficiently calibrate all relevant mitigating and aggravating factors and sentencing variables27 while also predicting the likelihood of re-offending.28 Stobbs, Hunter and Bagaric propose the development of an algorithm for use at two reference points: at the final stage of sentencing, and then applied to all subsequent sentencing matters. The authors assert AI could be used to analyse a large volume of decisions ‘ascertaining the emphasis and weight courts currently place on key factors that contribute to the formulation of a criminal sanction, namely, the maximum penalty, offence tariff (if one exists for the offence in question), sentencing objectives and aggravating and mitigating considerations.’29 Then the algorithm could be applied to all subsequent matters with the ‘advantage of making sentencing determinations quicker and more transparent, predictable and consistent.’30 The use of AI additionally benefits public expenditure by reducing court time and resources. AI’s primary disadvantage, however, is its

20 Australian Government Productivity Commission, Report on Government Services (2022) (Part C Section 7 Released 28 January 2022) Ch 7, table 7.3 ‘courts recurrent expenditure’https://www.pc.gov.au/ongoing/report-on-government-services/ 2022/justice/courts#downloads predicted impact on the scope of subjectivity inherent in ‘individualised justice.’ Nonetheless, notwithstanding judicial resistance,31 AI-driven risk assessment guidelines could be trialled in increments as a sentencing tool to compare and contrast results with those of the sentencer prior to determination.

21 Australian Bureau of Statistics, Criminal Courts, Australia (2020-21 financial year) https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release. The ABS data shows 508,748 defendants were finalised in Australia’s criminal courts in 2020-2021 with 97% found guilty.

22 Mirko Bagaric, ‘Three Things That a Baseline Study Shows Do Not Cause Indigenous Over-imprisonment; Three Things That Might (but Shouldn’t) and Three Reforms That Will Reduce Indigenous Over-imprisonment’ (2016) 32 Harvard Journal on Racial and Ethnic Justice 1.

23 John E Stewart, ‘Defendant’s Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study’ (1980) 10 Journal of Applied Social Psychology 348, 354.

24 Anderson (n 18).

25 Mary Ann Neary and Sherry Xin Chen, ‘Artificial Intelligence: Legal Research and Law Librarians’ AALL Spectrum 21(5) (2017) 16-20.

26 See, eg, the Australian government’s Department of Immigration and Border Protection which fully automates Tourist Visas and Working Holiday Visas while categories of visas issued considering human judgment include Partner Visas and Skilled Migration Visas.

27 Stobbs, Hunter and Bagaric (n 5) 261 contend there are more than 200 factors; s 9 of the Sentencing and Penalties Act 1992 (Qld) (‘PSA’) lists the sentencing factors the court must consider when deciding an appropriate sentence.

28 MacKenzie (n 8) 290 the author states that for judges predicting dangerousness is a particular concern in determining deterrence.

29 Stobbs, Hunter and Bagaric (n 5) 262.

30 Ibid.

Stobbs, Hunter and Bagaric report the primary criticisms of AI’s use in some United States jurisdictions is it leads to ‘harsher assessments for minority groups’ and lacks confidentiality.32 However, the authors contend that subconscious bias may be eliminated from an algorithm’s sentencing decisions33 and confidentiality concerns can be similarly jettisoned if the court, parties to the proceedings and the wider community, are made aware of all the algorithm’s integers.34

Iii Extent Of Judicial Discretion

The tension inherent in the judicial balancing act is reflected in the potential difference between a decision based on the unique circumstances of an individual case and one based on objective comparison with similar cases. The underlying rationale of the ‘instinctive synthesis,’ the High Court’s preferred sentencing method is sentencers are uniquely placed to apply Aristotelian logic to decide like cases alike and different cases differently to attain true equality in outcome.35 However, it is asserted that because judicial discretion in sentencing is a matter of degree ranging from broad discretion at one end to fixed penalties as in mandatory minimums and maximums at the other, there is room for a more structured approach from consistency-promoting measures such as computer-based sentencing in between.

While Australia’s sentencing law is a mix of common law and statute, and rightly a matter for the judiciary rather than juries,36 it requires sentencers to scrutinize each unique set of facts. Because decisions may result in significant restrictions on liberty, money or other assets, it is unequivocally correct that the rule of law should be applied to the maximum extent possible.37 Sentencing decisions, therefore, should be approached within a framework of guidelines, rules and principles established in advance so decisions are approached consistently and with reasonable predictability.38

31 See e.g, Markarian (n 15) [130] McHugh J disagreed with Kirby J’s criticism of the ‘instinct’ or ‘intuition’ of ‘instinctive synthesis’ to contend the alternative ‘two-tier sentencing’ is no more than ‘junk science.’

32 Stobbs, Hunter and Bagaric (n 5) 274.

33 Ibid.

34 Ibid.

35 Jurisic (n 8) at 221-224 (Spigelman CJ) stated: ‘It is generally desirable that cases which are broadly similar should be treated similarly and cases which are broadly different should be treated differently. As Aristotle observed: ‘True equality exists in the treatment of unequal things unequally.’

36 Eric Colvin, John McKechnie and Jodie O’Leary, Criminal Law in Queensland and Western Australia (LexisNexis, 8th ed, 2018) at 903 state while a judge may inform themselves as they wish, they ‘may not take the view of facts inconsistent with the verdict of a jury.’

37 Andrew Ashworth, Sentencing and criminal justice (Cambridge University Press, 5th ed, 2010) 417.

38 Ibid.

Statutory limitations,39 including sentencing guidance40 currently operate to varying degrees across Australia’s sentencing laws and practices to circumscribe judicial discretion’s aim to ensure individualised justice41 including adherence to the principles of parity,42 proportionality43 and totality.44 Orthodox sentencing discourse contends that sentencing decisions require account of a wide variation in circumstances in relation to both the offence and the offender.45 The High Court’s view is that the greater the scope of judicial discretion the less likelihood of a successful appeal.46 The argument is the broad discretion to choose between sentencing purposes, options and rules to safeguard justice in each individual case is ‘vital’47 to fair sentencing as justification for no further interference or restriction. 48 This principle was laid down by the majority Markarian High Court which stated that although ‘sentencing judges have discretion across a range of possible sentences’49 there is ‘no single correct sentence.’50 The High Court in Wong v The Queen (‘Wong’) had similarly indicated that while statements by appellate courts of principles affecting sentencing discretion can constitute precedents, sentences themselves are not precedents.51 However, the High Court’s favoured individualist approach is criticized as divisive because it ‘tends to regard consistency as a threat to the exercise of discretion.’52 The argument is that rather than identifying the contribution that individualism (individualised approach) and comparativism (the consistency approach) make, ‘Australian authorities often view individualism and comparativism as incompatible paradigms.’53

Depending on the jurisdiction, judicial constraints on individualism may arise from determinate measures such as guideline judgements from appeal courts,54 computerised

39 See, eg, Penalties and Sentencing Act 1992 (Qld) (‘PSA’) ss 9─14 and sentencing restrictions outlined in Queensland Sentencing Council, ‘Queensland Sentencing Guidelines’ (2021) https://www.sentencingcouncil.qld.gov.au/education-andresources/queensland-sentencing-guide

40 Note guidance in the Queensland context means factors to be taken into account in s 9 of the PSA. While the Queensland Court of Appeal has, from 2010, been granted statutory authorisation to issue guidelines in PSA ss 15AA-15AL they are yet to be delivered.

41 Elias v The Queen [2013] HCA 31, [27]; Bugmy v The Queen [2013] HCA 37, [36], [47] these High Court judgments emphasise the importance of individualised justice.

42 R v Nagy [2004] 1 Qd 63 [49] (Williams, Jerrard JJA, Muir JJ) cited the reasoning of the High Court in Lowe v The Queen (1984) 154 CLR 606 [which] recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance.’

43 PSA s 9(11) provides that, despite a court being permitted to treat a prior conviction as an aggravating factor, ‘the sentence imposed must not be disproportionate to the gravity of the offence.’

44 Nguyen v R (2016) 256 CLR 656, 677 (Bell, Gageler, Keane, Nettle, Gordon JJ) stated: ‘Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences.’ information retrieval systems,55 sentencing grids,56 and mandatory sentencing57 serving to narrow its scope.58 Measures such as judicial guidelines allow weighted factors for matters relevant to the offender and the offence.59 In Queensland, however, judges are unconstrained by these despite their potential benefits.60 The instinctive synthesis has no visible influence in that jurisdiction because sentencers adopt an informal ‘range-based’ strategy for sentencing for indictable offences.61 In applying this comparative sentencing methodology, the Queensland courts adopt the two-stage, structured approach whereby the sentence range is a starting point from which mitigating factors are discounted.62 Further, the Queensland Sentencing Information System is a statistical information source used to inform the general pattern of sentences for a particular offence which can specify key factors such as the offender’s age, guilty plea and prior conviction to more accurately match the statistics required for the case before them.63

45 Justice James Spigelman (n 2) 450, 450.

46 Markarian (n 15) [39] (Kirby J) stated: ‘so long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference’ in determining whether the sentence is manifestly excessive or manifestly inadequate.

47 Lowndes v The Queen (1999) 195 CLR 665, 672; R v MacNeil-Brown (2008) 20 VR 677, 681. Note, both judgments stated it was vital for individualised justice that judicial discretion be broad.

48 Mackenzie (n 7).

49 Markarian (n 15).

50 Ibid [27] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

51 Wong (n 6) 584.

52 Krasnostein and Freiberg (n 3) at 268.

53 Ibid.

54 Note that from 2010 the Queensland Court of Appeal has had statutory authorisation to issue guidelines in PSA ss 15AA15AL but is yet to be delivered.

In Queensland, the statutory starting point for sentencing is ss 9─14 of the Sentencing and Penalties Act 1992 (Qld) (‘PSA’) which sets out the governing principles to which the court must have regard. For example, ss 9(1)(a)─(f) sets out the purposes for which a sentence may be imposed, including rehabilitation, general and specific deterrence, denunciation, protection of the community, or a combination of these. Section 9(2) sets out the factors the court must regard in sentencing most offenders. These factors fall into distinct groupings, such as s 9(2) (a) a sentence of imprisonment as a last resort; the gravity of the offence under ss 9(2)(b)─(e) and s 9(10A), including the maximum and minimum penalties for an offence, the nature and seriousness of the offence; harm to the victim, and the extent of moral blameworthiness. Queensland sentencers also must have regard to mitigating factors as set out in ss 9(2) (f)─(ga) including age, the offender’s character and intellectual capacity. The interests of the justice system are also canvassed according to the offence’s prevalence, and any assistance the offender gave to authorities. Other factors to which the court must have regard include the totality of the offence in ss 9(2)(j)─(m), and miscellaneous aspects such as compliance with a community-based order.

Other than in Queensland and Western Australia,64 the use of computer-based sentencing guidelines and statistics as part of the determinate suite of sentencing systems has been largely eschewed by sentencing courts applying common law methodologies because of the orthodox view they unjustifiably interfere with judicial discretion. Colvin, McKechnie and O’Leary point out that in Barbaro v R; Zirilli v R65 the High Court clarified that while

55 See, eg, Stobbs, Hunter and Bagaric (n 5).

56 See, eg, Michael Kirby, ‘The Sentencing Council Re-visited’ in Ivan Potas (ed), Sentencing: Problems and Prospects, Proceedings of a Seminar held at Australian Institute of Criminology, 18-21 March 1986, Canberra, 1987. His honour states sentencing grids are primarily used in most US jurisdictions.

57 See, eg, Australian Institute of Criminology (‘AIC’), Mandatory Sentencing: Trends and Issues (Report 138)

58 George Zdenkowski, 'Sentencing Trends: Past, Present and Prospective' in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond (Butterworths, 2000) 173-180.

59 Colvin, McKechnie and O’Leary (n 36) 916.

60 MacKenzie (n 8) 289.

61 Colvin, McKechnie and O’Leary (n 36) 917.

62 R v Houghton [2002] QCA 159 [30] (Fryberg J) stated comparable sentencing is “’the norm’, or perhaps, in accordance with Queensland practice, the range within which the norm falls’.

63 Supreme Court Library Queensland, ‘Queensland Sentencing Information Service’ (2018) https://www.sclqld.org.au/caselaw/queensland-sentencing-information-service

64 Colvin, McKechnie and O’Leary (n 36) 917.

65 (2014) 253 CLR 58 [40] (French CJ, Hayne, Kiefel, Bell, Gageler JJ) stated: ‘The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics comparable sentences were acceptable and acknowledged, they ‘cast doubt on the use of any indicated range of sentences as limiting the scope of sentencing discretion or being determinative as to whether a sentence is manifestly excessive or inadequate.’ 66 However, this individualism argument is unpersuasive against systems which operate within the structured, two-tier framework to provide a more consistent and objective approach in tandem with reasonable predictability.67 Furthermore, as Stobbs, Hunter and Bagaric argue, there is a paucity of evidence that widening judicial discretion necessarily equates to enhanced fairness.68

Iv No Role For Mandatory Sentencing

Mandatory sentencing laws refer to legislation which sets fixed penalties69 ranging across various offences.70 While Queensland’s sentencing law as set out in ss 9-14 of the PSA71 provides a limited number of sentencing principles, it does not provide for mandatory minimum sentences of imprisonment. Sentencing is a highly politicized area of law with mandatory sentencing schemes representing overt legislative control. Arguments for these schemes are they introduce certainty in sentencing;72 promote efficiency by streamlining the process; and their specific and general deterrence reflect public condemnation of crime.73 While one of their primary purposes is to eliminate inconsistency, the Australian Institute of Criminology (AIC) argue while judicial sentencing may be more consistent,74 clear justification is required for their high public cost.75 Furthermore, mandatory sentencing schemes are problematic for privileging bureaucratic interests over the values of due process and human rights76 by fixing heavier penalties than justified on the facts,77 and disproportionately impact upon poor and marginalised groups.78

The argument for introducing mandatory sentencing schemes is their significant penalties prevent crime by deterring offenders from future offending (specific deterrence), and deter others in the community (general deterrence). However, the AIC argue these schemes rely on and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

66 Colvin, McKechnie and O’Leary (n 36) 916.

67 Ashworth (n 37) 417.

68 Stobbs, Hunter and Bagaric (n 4) at 268 the authors argue while ‘discretion leaves open the greater prospect of a wider range of decisions [these are] not necessarily better decisions.’ invalid assumptions that people weigh the costs of crime before committing them. 79 Criminological research from the US indicates an extended prison stay for those with few other options is more attractive than for ‘a well-employed person with a family’. 80 Further, instead of incapacitating dangerous offenders, mandatory sentencing schemes are biased against the poor and marginalised because they are ‘more likely to commit the sorts of offences’ they cover.81 For example, the Northern Territory’s Office of Crime Prevention, s 53AE of the Northern Territory’s Youth Offenders Act 1994 (NT), which provided for mandatory sentences for repeat offenders in some categories, found no observable deterrent effect on property crime in the community between its introduction in 1997 and repeal in 2001.82

69 AIC (n 57) 1.

70 The Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper, 84, 2022) at [4.4] mandatory sentencing laws are those requiring ‘a minimum or fixed penalty…upon conviction of an offender;’ Migration Act 1958 (Cth) s 236B; Crimes Act 1900 (NSW) 1900 s 19B(4); Criminal Law Consolidation Act 1935 (SA) s 11; Misuse of Drugs Act 1990 (NT) s 37(2); Sentencing Act 1995 (NT) s 78F; Domestic and Family Violence Act 2007 (NT) s 121(2); Crimes Act 1958 (Vic) ss 15A, 15B; Road Traffic Act 1974 (WA) ss 60, 60B(3); Criminal Code Act Compilation Act 1913 (WA) ss 297, 318.

71 PSA (n 26) ss 9─14.

72 AIC (n 57) 4.

73 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 48.

74 AIC (n 57) 4.

75 Neil Morgan, 'Why We Should Not Have Mandatory Penalties: Theoretical Structures and Political Realities' (2002) 23(1) Adelaide Law Review 141, 154.

76 See, eg, Law Council of Australia, ‘Policy Discussion Paper on Mandatory Sentencing in Australia’ (May, 2014) sets out Australia’s international and domestic human rights obligations; Human Rights Commission, ‘Mandatory Sentencing Laws in the Northern Territory and Western Australia’ Social Justice Report 2001 Ch 5 https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/submissions_un_hr_committee/ 5_mandatory_sentencing.pdf.

77 See, eg, Terry Ernest Curnow v Leonard David Price [1999] NTSC 116, [112] (Mildren J).

78 AIC (n 57) 3.

The AIC asserts any reductions in crime must be weighed against public expenditure because mandatory sentencing schemes are comparatively costly compared with other crime reduction measures such as diversionary programs.83 Comparing the expense of imprisonment with community corrections orders, the AIC found the cost to keep a single prisoner imprisoned for a year is more than $61,000 compared with about $6,500 a year for those given a community corrections order. 84 Imprisonment further increases pressure on time and court resources such as legal aid. Tonry argues there are more effective, less costly measures available to prevent crime both within and outside the criminal justice system. 85 Increased expenditure on detection and other crime prevention policies in Australia is a more effective deterrent than mandatory sentencing as these represent a greater return on public investment.86

Furthermore, because more defendants contest charges to try to avoid the mandatory penalty, there are increased costs in the court system because they ‘otherwise may have entered a plea of guilty.’87 Findlay, Odgers and Yeo similarly argue these schemes provide the ‘prosecution with too much bargaining power with which to influence defendants into pleading guilty to lesser offences when there is a substantial chance of acquittal of the original charge.’88

There is a common misconception that public opinion is the primary reason for mandatory sentencing regimes and laws such as Western Australia’s ‘three strikes legislation,’89’border control’ legislation under the Migration Act 1958 (Cth);90 and retention of mandatory sentences of life imprisonment for murder in Queensland. 91 Their underlying rationale is the

79 Ibid 4.

80 Alfred Blumstein, ‘Prisons’ in James Q Wilson and Joan Petersilia (eds), Crime (San Fransisco, Institute for Contemporary Studies Press, 1994) cited in Michael Tonry, Sentencing Matters (Oxford University Press, 1998) 138.

81 AIC (n 57) 3.

82 C Whyte, et al, ‘Review of the Northern Territory Sentencing Amendment (Mandatory Minimum Sentences) Act 2013’ (2013) Department of the Attorney General and Justice, Darwin 8.

83 AIC (n 57) 3.

84 Australian Institute of Criminology, How Much Does Prison Really Cost? Comparing the Cost of Imprisonment with Community Corrections (Research Report 05, 2018) x-xi.

85 Michael Tonry, Sentencing Matters (Oxford University Press, 1998) 135.

86 Ibid.

87 Ibid 4.

88 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian criminal justice (Oxford University Press, 5th ed, 2014) 287.

89 Ibid at 286 the authors state it is mandatory for a judicial officer to sentence a repeat offender convicted of home burglary to a minimum of 12 months’ imprisonment for adults or detention for juveniles.

90 Note this legislation imposes mandatory minimum penalties of 5 years imprisonment for a number of offences involving illegal entry into Australia of five or more unauthorised people.

91 Criminal Code 1899 (Qld) s 305.

‘tough on crime’ approach appeals to voters driven by retribution.92 However, a review of international research reveals public opinion on sentencing issues are influenced by the types of survey questions asked and the degree of context provided.93 For example, when asked generalised questions about mandatory sentencing, without specific detail on the circumstances for the offence, public support for mandatory sentencing is at its highest. 94 A comprehensive study of jury opinion from 124 Victorian County Court trials from 2013 to 2015 showed ‘simple and generalised questions in polls and representative surveys may elicit support for mandatory sentences but more informed, contextual and considered lay views are against it.’95 However, even if people feel sentencing in general is too lenient, there is strong attachment to judicial discretion.96 This is a primary criticism of mandatory sentencing schemes; they remove the sentencing principle that offenders must be examined individually and penalties mitigated in some cases depending on the outcome of judicial scrutiny. However, UK research indicates that rather than eliminating judicial discretion, mandatory sentencing schemes ‘simply transfer or displace that discretion to an earlier part of the criminal justice system.’97

Moreover, Monterosso argues there is a broader interplay between policy and the media’s discursive practices which manipulates punitive sentiment to maintain the public castigatory view that crime and anti-social behaviour are more effectively controlled by harsh and authoritarian measures.98 While mandatory sentencing schemes claim to prevent crime with an injection of certainty and consistency into criminal justice systems to better reflect community condemnation, the AIC argues they result in only modest crime reductions.99 However, the AIC acknowledge the difficulty in gauging the actual effectiveness of these schemes as a crime prevention method due to the lack of systematic testing.

V Conclusion

The traditional common law methodological approach to sentencing is for courts to impose individualised sentences to ensure the punishment fits the offender and the crime. This essay has argued greater objectivity should be injected for indictable offences from algorithmicallydriven computerised guidelines as part of a more structured and consistent approach. There is little evidence that further widening judicial discretion would lead to better outcomes for the offender, victims or the community. By applying a structured, comparative methodology in Queensland, however, further restricting this highly circumscribed process may be inappropriate. Mandatory sentencing schemes, on the other hand, are not only a largely unjustifiable interference in the sentencing task, there was little evidence they are an effective crime prevention strategy. While the public may hold the view that sentences are too lenient, research indicated there is no correlative opinion which favours mandatory sentencing over judicial discretion.

92 Nicholas Cowdery, 'Mandatory Life Sentences in New South Wales' (1999) 22(1) University of New South Wales Law Journal 290, 291.

93 Julian V Roberts, 'Public Opinion and Mandatory Sentencing: A Review of the International Findings' (2003) 30(4) Criminal Justice and Behaviour 483.

94 Ibid.

95 Kate Warner et al, 'Mandatory Sentencing: Use [with] Discretion' (2018) 43(4) Alternative Law Journal 289.

96 Barry Mitchell and Julian V Roberts, 'Sentencing for Murder: Exploring Public Knowledge and Public Opinion in England and Wales' (2012) 52(l) British Journal of Criminology 141, 142.

97 Ibid 5.

98 Stephen Monterosso, 'Punitive Criminal Justice and Policy in Contemporary Society' (2009) 9(1) Queensland University of Technology Law and Justice Journal 13, 13.

99 AIC (n 57) 4.

COULD THE FEUDAL SYSTEM OF LAND TENURE BE RECONCILED WITH THE RECOGNITION OF NATIVE TITLE FOLLOWING MABO?

YOON KIM

ABSTRACT: Following the High Court of Australia’s decision in Mabo, the feudal-based tenure system in relation to the native title was substantially shifted to respect the native title. This paper explores different views arising from potential implications or ramifications of the decision and a potential opportunity to reconcile between the Aboriginal peoples and the European settlers with respect to a land and associated rights and interests under the common law or an alternative legal framework.

I Introduction

In 1992, the High Court of Australia (‘the Court’) rendered its decision with respect to Mabo v Queensland (No 2)100 (‘Mabo’) concerning, among other things, the native title, which is considered the historic milestone Court decision defining ‘pre-Mabo’ (before the Court decision) and ‘post-Mabo’ (after the Court decision).101 It seems that, before Mabo or in ‘preMabo era’, the tenure system or feudal-based common law with respect to land including the native title and aboriginal land was mainly or exclusively relied upon in Australia as the English colonial legacy.102 However, after the Court decision in Mabo or ‘post-Mabo’, the old feudal-based tenure system in relation to the native title seems to have been substantially shifted in order to reflect or respect the native title, while there seems to be some different or alternative view of how to see Mabo in terms of the English common law application or something other than the common law.103

II ENGLISH COMMON LAW (FEUDAL-TENURE SYSTEM

In Mabo, the Court discussed about whether it could hear a case regarding the acquisition of a territory by a sovereign state, where the judicial branch might defer to the executive branch. However, the Court seems to have concluded that it would be able to hear the case on the basis that ‘the municipal courts have jurisdiction to determine consequences of an acquisition under municipal law‘, while there might have been some elements of international law attached to the common law to some degree.104

When Europeans expanded to and settled in the new colonial territories at the times of ‘the great voyages of European discovery’, they viewed the new land as terra nullius or an uninhabited land.105 The problem with this view of terra nullius by European settlers is that the new land they found was not uninhabited.106 There were already the Indigenous people who made a living in the land, though their culture or society was quite different from that of the European settlers, while the settlers viewed that as unorganized and inferior or ‘backward peoples’.107 The term of ‘backward peoples’, while obviously insulting to the native people and seems to have been attributable to lack of understanding and knowledge about the native

100 (1992) peoples and their cultures at that time, it seems to have been used as justification for the European settlers to take the native peoples’ land or territory for the acquisition of sovereignty over that land.108

107 ALR 1 (‘Mabo’).

101 Ulla Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction”’ (2006) 13(1) Australian Property Law Journal 107, 140 (‘Secher’).

102 Ibid.

103 Ibid.

104 Mabo (n 1) 32.

105 Ibid.

106 Ibid.

107 Ibid.

The notion of tenure or ‘the doctrine of tenure’, the origin of which came from the old English common law and being in force in England, was applied to the colonial territories, despite the fact or possibility that it was more likely that the tenure system might not work nor be applicable to the colonial territories in practice.109 Though the colonial territories might be a land that the Crown assumed sovereignty over via a radical title, however, the radical title could be more effectively applied in cases of terra nullius or an uninhabited land than in cases of an inhabited land. Specifically, the native lands, where the Indigenous peoples already made a living and vested at least some kind of rights and interests in the land before the Europeans settled in the land, would not be directly applied or applicable to a radical title, since such cases of not uninhabited lands do not need a grant from the Crown for their preexisting life such as rights and interests in the land.110 For example, as illustrated in Mabo, in the cases of both Ireland and Wales following the English conquest in their lands, the Irish and the Welsh, the original inhabitants who made a living and vested their interests and rights in their territories, did not need a new grant from the Crown to keep their land, rights and interests under the common law.111 Hence, there seems to be room under the common law that may be able to recognize the native title. And, if so, this can be done without introducing a new legal framework drastically different from the common law, despite the common belief or misconception that the feudal-based tenure automatically attaches interests and rights to a new territory acquired by the Crown over its sovereignty.112

In Canada, there is a legal interpretation or approach seemingly subtly different from and yet similar to the above, when the Crown assumed the sovereignty of a land, that title to land can be distinguished from the Crown’s assumption of the sovereignty.113 This means that the Crown cannot extinguish or infringe Aboriginal title, unless the title is transferred to the Crown (separated from the assumption of the sovereignty) or the title holders die intestate without heirs.114

Iii Alternative Views To Feudal Tenure

While the Court in Mabo seems to have rendered its decision based on or within the boundary of the tenure under the common law, the native title in terms of its full possible effect enjoyed by the Indigenous peoples may not be fully explained or justified in the eyes of the tenure system or the common law.115 In other words, the common law has its own implications or limitations with respect to the full recognition of the native title due to the different nature and characteristics between the English tenure system based on European feudalism and Indigenous customary rules.116 For example, while alienability in relation to a land or territory is one of the factors defining a private or proprietary right based on the tenure system, it may not be so black and white to the Indigenous peoples or at least not in the same way. 117 While the Australian tenure system may have made substantial progress in terms of recognizing native title following Mabo, it may still have some challenges and implications in cases where un-alienability is involved with respect to a land that the Aboriginal people or Indigenous peoples occupy and yet cannot meet the definition of native title.118 To address the limitation or to reconcile the limitation and the feudal system of land tenure, native title may be treated as an exception to the tenure or allodial system, which differs from the tenure under the common law or 'Aboriginal customary law title' as suggested by Secher.119

108 Ibid.

109 Ibid 46-47.

110 Ibid 48.

111 Ibid 49.

112 Ibid.

113 Kent McNeil, ‘The Source, Nature, and Content of the Crown’s Underlying Title to Aboriginal Title Lands’ (2018) 96 Canadian Bar Review 277, 289 (‘McNeil’).

114 Ibid.

115 Secher (n 2) 177.

116 Ibid.

117 Ibid.

While there may be some middle ground between the tenure system (the common law) and Mabo with respect to native title recognition, there is a more drastically different approach to applicability (or inapplicability) of the tenure, which is completely ignoring the feudal system and changing to or replacing with an allodial land system.120 This rather drastic view is attributable to the fact that the feudal tenure system is more of the historical contexts rather than of ‘a legitimate land system’ in Australia.121 In order to better understand and assess native title more objectively, a neutral lens independent of the tenure is required, which seems to lead to an allodial land system that can be ‘reconciling fundamentally different cultural perspectives to land ownership’.122

Along the same line of the above rather drastic view, there also seems to be ‘a pluralist property perspective’, other than the old or outdated feudal tenure, that may better assess or determine the native title (and non-native titles for that matter), as the society progresses.123 To this end, Hepburn states that:124

The introduction of native title rights has, however, fundamentally altered Australian land culture. In accepting native title as a valid and enforceable property interest, Australian land law has now embraced a pluralist property perspective. Within such an environment, it is no longer legitimate or justifiable to perpetuate a feudal fiction intrinsically inconsistent with native title perspectives. The longevity of feudal tenure must not inure it against the demands of social progression.

Based on the foregoing, Hepburn seems to suggest that due to inevitable incompatibility between the feudal tenure and native title, or anything that may arise from a different cultural background with respect to a land property, ‘a pluralist property perspective’ allowing different views or perspectives of a land, whether it is based on an allodial system or something else, needs to be explored and adopted.

Iv Recognition And Coexistence

Whether native title in Australia can be reconciled with the feudal system of land tenure or needs to invite a new legal framework drastically different from the tenure, such as an allodial land system as aforementioned, there are real issues to be dealt with following Mabo. For example, there may have been already some form of coexistence between the European settlers (the pastoralists) and Aboriginal and Indigenous peoples on a land that would or should have been subject to native title where the settlers made substantial efforts to improve the land by farming, building a shelter like a house and doing a business with or without recognizing native title.125 Specifically, if the land was under native title despite the fact that it was not properly recognized, due to a biased application of the tenure arising from the different cultural contexts, then the settlers or pastoralists’ right in relation to the land was technically more or less of a lease in nature that was in effect along with the Indigenous peoples’ title or original ownership.126

118 Ibid.

119 Ibid 178.

120 Samantha Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure PostMabo’ (2005) 29 Melbourne University Law Review 37(1) (‘Hepburn’).

121 Ibid.

122 Ibid 38.

123 Samantha Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27(1) Sydney Law Review 49.

124 Ibid.

Some of the settlers may find discomfort in finding that they do not exactly have full ownership or possession of land they initially thought they would depending on whether there is native title with respect to the land that can be in effect following Mabo 127 However, there also can be an opportunity for both interests of native title and of settlers to coexist or be in harmony with each other in different forms that can be either monetary or non-monetary. For example, it can be some kind of showing of respect for ‘the first owners’, joint management of the land or/and transferring the land interests with appropriate compensations.128

V Conclusion

In summary, the Mabo decision has seemingly opened the door for reconciliation between the Aboriginal peoples and the settlers with respect to a land and associated rights and interests. While Mabo can be viewed within the boundary of the tenure originally from the English common law that may or may not have compatibility with Mabo to the full extent129, it is hard to deny the fact that Mabo has established its own law, or arguably Australia’s version of the common law, reflecting its unique circumstances with respect to native title matters and subsequent opportunities for reconciliation.

125 Mason, Anthony, ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’ (1997) 46 International and Comparative Law Quarterly 812, 830.

126 Ibid.

127 Ibid.

128 Ibid.

129 Hepburn (n 24).