Professor Arie Freiberg
On Friday 11 January 2013 the Governor-General of Australia appointed a six-member Royal Commission to inquire into how institutions with a responsibility for children have managed and responded to allegations and instances of child sexual abuse. The Commission had wide-ranging terms of reference, sat for four years and released its Final Report in December 2017. The Report consisted of 17 volumes together with an executive summary. It produced 409 recommendations, many of them fundamental and far-reaching.
Eighty-five of the recommendations related to the criminal justice system generally and only three related directly to sentencing: one in relation to the exclusion of good character as a mitigating factor in sentencing in certain circumstances, one in relation to cumulative and concurrent sentencing and the third in relation to sentencing standards in historical cases.
This paper examines how Australian governments have responded through legislation to these recommendations, how the judiciary has responded to the Commission’s recommendations and to the statutory changes and, more generally, to the Commission’s findings on the harmful effects of sexual abuse and delay. Finally, it examines how sentencing standards have changed over the past few decades and whether they have changed since the publication of the Commission’s reports.
That child sexual abuse can have long term and serious effects on victims has long been known. However, the opening statement by the Chair of the Royal Commission in September 2013 drew public attention to the issue and since the Chair’s statement and the tabling of the report a number of judges have made specific reference to his statement. The courts have also made specific reference on a number of occasions to the Commission’s findings that long delays in complaints, on average around 20 years, are not only not unusual, but ‘a recognised concomitant of sexual abuse of this kind’.
The Commission’s sentencing recommendations were relatively cautious and generally built on existing legislative provisions.
In relation to the exclusion of good character as a mitigating factor in sentencing in certain circumstances it recommended that:
All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia.
Three jurisdictions had already passed laws to this effect (NSW, South Australia and Tasmania) and two followed soon after (Victoria and the ACT). The remainder are still considering the recommendation.
This recommendation has built on existing law and has encouraged or stimulated the emulation of these laws in jurisdictions that did not already have them. To the extent that the principles embodied in these provisions probably reflected the common law the recommendation did not signal a marked change in sentencing practices. Some courts have limited the effect of such provisions by holding that the relevance of good character in assisting the commission of an offence must be considered separately from the assessment of the role of good character in assessing the prospects of rehabilitation.
In relation to cumulative and concurrent sentences the Commission recommended that:
State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.
Most jurisdictions have accepted the recommendation in principle but have not taken any action because the law in relation to cumulacy, concurrency and totality is complex. It is likely to remain the case that most cases will be sentenced under the traditional legal regimes whereby individually imposed sentences are made concurrent, partly concurrent or are accumulated according to the circumstances of each individual case.
In relation to sentencing standards in historical cases the commission recommended that:
State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.
Three jurisdictions passed laws to this effect either before or after the Commission’s report (NSW, ACT, Tasmania) while the rest are considering their position. As with the application of the good character provisions a court will also take into account the offender’s subsequent behaviour over the succeeding decades, their age, health, prospects of rehabilitation, application of the principle of totality, particularly where the offender had been previously sentenced in relation to other offences committed at an earlier time, delay, risk to the community, which may be minimal. In view of these factors it has been difficult to discern from the decided cases that specifically advert to these provisions, whether they have made a significant difference to sentencing standards.
The 85 recommendations of the Commission in relation to the criminal justice system are extensive and important. If implemented in full, they would represent major improvements in the way that the system responds to child sexual abuse generally and to child sexual abuse that occurs in institutional contexts in particular. However, the three specific sentencing recommendations are relatively narrow and are likely to have limited effect on sentencing practices. An analysis of judicial responses to the changes shows that the courts have been relatively cautious in their responses, often construing them narrowly. Sentencing practices in relation to these offences have changed, but slowly and incrementally.