For the last decade, only the defence make recommendations to judges on sentences – an unbalanced measure that leads to more appeals, ACT Labor MLA Dr Marisa Paterson believes.

She has introduced a Bill to the ACT Legislative Assembly to allow all parties to criminal proceedings to make sentencing submissions.

Last year’s discussions on sentencing identified this as a reform that could lead to more transparent sentencing and justification by judges for the sentences that they give, she remarked.

“Given the current situation where the prosecution cannot provide advice to the judge on sentencing, there are rightly concerns that sentencing is biased towards the defence,” Dr Paterson said.

“Introducing (or re-instating) sentencing submissions provides an equal opportunity for both defence and the prosecution to provide advice to the judge on sentencing range.”

The Crimes (Sentencing) Amendment Bill would override the High Court decision Barbaro v The Queen [2014], which limited the prosecution’s ability to make submissions regarding the appropriate sentencing range. Queensland is the only jurisdiction in Australia to override this ruling, and Dr Paterson hopes the ACT will be the second.

‘Sentencing submissions’ were a recommendation of the 2021 Sexual Assault Prevention and Response Reform Program Steering Committee report in respect to sexual assault cases. The law reform committee suggested that limiting such submissions leads to an unnecessary increase in appeals based on either inadequate or excessive sentences. The report stated that “protracted appeals may continue to traumatise victim survivors, and do not provide closure”. Data from the 2021/22 DPP Annual Report also points to an increase in appeals.

In April 2023, Dr Paterson released a discussion paper on sentencing submissions, and invited responses from stakeholders.

The ACT Council of Social Service (ACTCOSS), the Victims of Crime Commissioner, the Director of Public Prosecutions, the Australian Federal Police Association, Safer Roads ACT, Women’s Legal Service, the Domestic Violence Crisis Service, the Justice Reform Initiative, and ACT Policing all voiced support for the amendment.

 “I feel that this legislation would go some way providing a voice to victims on the aspect of sentencing through the prosecution’s presentation of advice to the judge,” Dr Paterson said.

“The legislation may also provide judges in the ACT with some context of differing opinions on sentencing and require more robust reasoning for the sentences that they deliver. Ultimately, the more information that a judge can take into consideration, the better the outcome.”