ANZCCC: The Australian and New Zealand Critical Criminology Conference 2010 (c) 2011 Institute of Criminology, Sydney Law School, The University of Sydney http://sydney.edu.au/law/criminology The Institute of Criminology would like to thank the University of Western Sydney as co-sponsors of the ANZCCC. 1 Jeopardising Justice for What? Keeping Sentence Indications in Victoria Asher Flynn 1 Abstract In 2004, the Office of the Victorian Attorney General released the Justice Statement Part I, which outlined a ten-year plan to modernise Victoria’s criminal justice system. A key initiative emerging from this idealistic reform agenda involved a sentence indication scheme for indictable offences, on the basis that it would increase clearance rates; thus in theory, benefiting all parties. In line with the recommendations of a report compiled by the Victorian Sentencing Advisory Council (VSAC) in 2007, a pilot sentence indication trial commenced in the County and Supreme Courts, with the sunset clause that it be evaluated after two years and either fully integrated into legislation or abolished (Criminal Procedure Act 2009 (Vic) ss 208–9, s 384). In February 2010, the VSAC released its evaluative report recommending the scheme be maintained in its current form. This paper critically analyses some potential flaws in the arguments of the VSAC report, with a particular focus on the ineffectiveness of the scheme, and its potential to result in unjust outcomes. Introduction In 2004, the Victorian Office of the Attorney General (2004:24) released its ten-year law reform plan, which focused on addressing issues of equality, accessibility, efficiency and effectiveness. In response, there have been a breadth of changes in Victoria, including the enactment of the Victims’ Charter Act 2006 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic), and reforms to various statutes (Crimes Act 1958 (Vic); Criminal Procedure Act 2009 (Vic); Evidence Act 2009 (Vic)). A key initiative emerging in the former government’s idealistic agenda involved a sentence indication scheme for indictable offences, on the premise that encouraging early guilty pleas can benefit all parties through increased clearance rates and reduced backlogs in the courts. Thus in line with the recommendations of a Victorian Sentencing Advisory Council (VSAC) report (2007), a pilot trial was implemented into Victoria’s County and Supreme Courts, governed by the Criminal Procedure Act 2009 (Vic) ss 208–9. 2 Indictable sentence indication schemes are not exclusive to Victoria. They operate by case law authority in the United Kingdom (R v Goodyear) and informally in New Zealand (New Zealand Law Reform Commission 2005). New South Wales (NSW) also employed a scheme for three years in the mid 1990s, although this was ultimately abandoned because inappropriate sentences were being indicated, and it failed to achieve its anticipated efficiency gains (Criminal Procedure (Sentence Indication) Amendment Act 1992 (NSW); Spears et al 1994; Weatherburn et al 1995; Weatherburn and Lind 1995). It was this failure of the NSW process, as well as concerns specific to the proposed Victorian scheme identified in parliamentary debates, which resulted in a sunset clause being included in the legislation to require the VSAC to review the scheme by July 2010, and a decision be made on its future (Criminal Procedure Act 2009 (Vic) s 384; Victorian Parliament 2007:4355). 1 Dr Asher Flynn, Lecturer in Legal Studies, School of Social Sciences, La Trobe University, Bundoora, Victoria 2 Prior to the enactment of the Criminal Procedure Act 2009 (Vic), the scheme was governed by s 23A of the Crimes (Criminal Trials) Act 1999 (Vic). A pilot sentence indication trial for summary offences was also implemented in the Magistrates’ Court in July 2008, governed by ss 60–1 of the Criminal Procedure Act 2009 (Vic). For a brief discussion of this scheme, see Flynn (2009, 2010).