MR DIMOPOULOS (Oakleigh) — It gives me pleasure to speak on the Sentencing Amendment (Correction of Sentencing Error) Bill 2015. As has been stated, courts are busy places. Judges are busy people, and generally they work very hard. Courts are increasingly congested. This is a formula for good work but also mistakes. This bill seeks to address those mistakes in a way that is efficient and fair. There are a range of errors, and I think it is important to clarify what those errors are and to talk about what the bill addresses. There are potentially some concerns about the administration of justice and the fact that there is a legal process of court appeals which covers more significant matters.
This bill does not seek to address those significant matters. Errors can generally be categorised into three areas: minor clerical errors — for example, miscounting the number of days the offender has already served pursuant to the sentence; jurisdictional errors — for example, imposing a sentence where the court has no power to impose such a sentence, such as imposing a suspended sentence after the abolition of those sentences, as we heard from the member for Hawthorn and others; and, finally, errors in how sentencing discretion is exercised — for example, imposing a sentence that is manifestly excessive or inadequate. It is important to make the point that this bill seeks to address the first and second but not the third category of errors.
As I have said, courts are busy places. In my previous job I worked in the courts in an administrative capacity and saw firsthand the level of energy of judges and the amount of work they do. There is not only the complexity of the content of material — the laws, the regulations and the precedents judges need to take into account — but also the mayhem of a judge’s life in the sense that they could be dealing with a matter today which they will not return to for a few weeks or months if it is adjourned. There is a range of intervening factors — for example, parties may not be ready or witnesses may not be available. By the time judges get to sentencing, they probably would have dealt with a handful of other trials in between. While judges do an outstanding job, it is easy to see how errors can be made in such a busy environment, with different cases coming before them at different times.
The consequences of errors are that if they are not picked up within the 14 days under section 104A of the Sentencing Act 1991, the only avenue for redress is formal appeal to a superior court. That is a problem. I worked for a time in the transcript services area of the courts. From memory the service delivery time frame for the transcripts of sentences to be provided to the County Court of Victoria was three days. So three days are already lost before the 14-day period begins. If you want to have a look at the spoken word in the courtroom according to the formal transcript of the Victorian Government Reporting Service, you may not get it for three days anyway. The 14 days is quickly eaten up.
Judges make sentencing remarks on their PCs in their own offices, but I tell that anecdote as an example of how easily the 14 days can be missed. Appeal time frames for superior courts are generally in excess of 14 days, so by the time parties get to look at the sentence in more detail and pick up those errors it is often after 14 days because their appeal time frames are longer and that is what they look at rather than paying attention to the time limit in section 104A. As has been said before, the consequences are significant costs because appeals cost money. There are also some real justice concerns for an accused or a convicted person who may, for example, spend more time in incarceration than they would otherwise have done, waiting for an appeal to reduce the sentence.
This bill seeks to address those concerns and the consequence of those concerns — costs and potential consequences in relation to negative justice outcomes — by providing two key provisions. One provision is getting rid of the 14-day limit under current section 104A and giving the original court more discretion in relation to how it is prepared to deal with clerical and minor errors. Another is giving the court the power to reopen proceedings to correct penalties imposed that may be contrary to the law. That is an important element.
Basically this provision gives a court, either on application by a party or on its own motion — after giving the parties an opportunity to be heard, which I think is an important element — the ability to reopen proceedings. Under this provision, if passed, the court may impose a penalty that is in accordance with the law and amend any conviction order under section 7. Importantly, in determining whether to reopen a proceeding under this section the court must have regard to the time that has elapsed since the imposition of, or the failure to impose, the original penalty. As we have heard, it gives the court some power not to be bound to a party using these provisions in a way that is perhaps unnecessary.
Finally, in determining a new penalty on the reopening of a proceeding in which a court has imposed a penalty, the court must take into account the extent to which a person to whom the proceeding relates has served, paid, complied with or otherwise suffered the consequence of the original penalty. There are some key protections in terms of justice and in terms of people who are at the negative end of such a proceeding. I think these are important fixes — smart, prudent, cost-effective fixes — to some significant problems.
It is important to note that this bill does not seek to do away with or trump the normal process of appeal inherent in criminal trials in Victoria or in our judicial system. Errors that are made by a judge because of factual inaccuracies or because a judge has erred in terms of reasoning are material, significant matters that should really only be the subject of appeal to a higher court. This bill protects the integrity of that very basic tenet of our criminal justice and judicial system.
The bill still provides a basis for finality of proceedings. When the time limits for correcting mistakes are taken away, there is still discretion for the court and, as I said, the discretion will be based on time elapsed. This will create a more efficient operating system for the hardworking courts that in my view are increasingly expected to have higher and higher legal standards and to meet community expectations. Now, through Court Services Victoria, they will be masters of their own financial and expenditure operating environment. I understand the courts brought this to the government as a concern in order for them to be able to govern their resources in a more effective way, and it is pleasing that the government has been able to provide not only an avenue for them to address those concerns but also one that protects the integrity of our judicial system. This is an important bill which is intelligent and effective, and I commend it to the house.