As published in the Courier Mail today, Dan Rogers comments on how studies in to sentencing show the ‘lenient judge’ is a myth. Original article available here, with the body of the article below. 

SENTENCING occupies a significant space in public debate.

When a criminal court imposes punishment on an offender, the state exerts its authority upon a person who has broken the law.

Fortunately, corporal punishment no longer features in our land. However, every day in Queensland members of our community, from all walks of life, anxiously await sentencing by a criminal court.

The circumstances of the offence and the offender are infinitely varied. On a daily basis, judges and magistrates confront the enormous task of applying intellectual rigour and careful consideration to determine a sentence that is just and fair in the particular circumstances of each individual case.

The judiciary is assisted by a prosecutor (representing the state) and almost always in serious criminal cases, a defence lawyer (representing the individual).

Both roles are vitally important to ensure the process is fair. Last year, there were 236,233 cases finalised as sentences in Queensland’s criminal courts.

In every case, both the prosecution and the defendant may appeal the sentence. The appeal process is a safeguard against a sentence outcome that is manifestly wrong; a penalty that shocks the public conscience.

Only a very small number of sentences are appealed each year. In the same period last year there were only 844 appeals, which represents just 0.4 per cent of finalised cases.

Of those, a much lesser number were successful.

The number of successful sentence appeals is so low because, by and large, the courts get it right.

The law is complex but Queensland’s criminal justice system operates to ensure that, in the vast majority of cases, a just and fair penalty is imposed.

As a community, we only get snippets of this complex process. That is because media reports (or perhaps our attention span) can only be so long.

Time and again, headlines suggest courts are too lenient or judges too soft. These claims encourage “law and order” politics, where unfair and ineffective sentencing policies result from a government’s desire to achieve popularity by appearing “tough on crime”.

When courts are criticised, judges are not allowed to respond or participate in public debate.

This protocol is an important safeguard of judicial independence. By taking on the duty of judicial office, judges forego their right to participate in public debate.

The reality, underpinned by credible research, is that judges and magistrates typically impose harsher sentences than members of the community with full knowledge of the facts.

Kate Warner, a law professor and now Governor of Tasmania, has led important sentencing research in this country.

Her work as the director of the Tasmanian Law Reform Institute asked real jurors, who had convicted a person in a real criminal trial, to deliver a sentence.

The research project was large: 987 jurors from 124 criminal trials from the County Court of Victoria in the period 2013 to 2015.

It followed a previous study conducted in Tasmania between 2007 and 2009 with 698 jurors.

The jurors in the study had the opportunity to know all of the circumstances of the offence and of the offender.

The study found that 62 per cent of jurors would have imposed a more lenient sentence than the sentence ultimately imposed by the court.

In child sex offending trials, there was a more even split between the sentences imposed by the jurors and the court.

Jurors were less likely to be more lenient in sentencing cases involving victims aged under 12 years.

However, jurors were more likely to be lenient in violent trials, with 71 per cent submitting softer sentences than judges.

This research challenges prevailing community perceptions that sentences are overly lenient and out of step with community expectations.

This research is also very helpful to governments who are asked to consider policy decisions that result in sending more people to prison and for longer.

Above all else, this research shows clearly the need to educate and inform the community around sentencing practices.

And this is one of the key tasks of the Queensland Sentencing Advisory Council, newly reinstated by the State Government.Dan Rogers is the Legal Director of Robertson O’Gorman Solicitors and a member of the Queensland Sentencing Advisory Council.

Dan Rogers