Jail terms would be cut by up to 30 per cent for an early guilty plea under a range of measures proposed by Victoria’s Director of Public Prosecutions to clear a pandemic-driven backlog of more than 150,000 court cases.
Criminal matters waiting to be finalised before the Magistrates Court have doubled due to the pandemic and about 1600 trials are waiting to start in the County Court after jury trials were suspended due to the COVID-19 risk, according to Department of Justice figures released this week.
Director of Public Prosecutions Kerri Judd’s proposals also include removing pre-trial hearings for sexual offences and special hearings to test cross-examinations before they happen.
Director of Public Prosecutions Kerri Judd. Credit:Paul Jeffers
In an exclusive interview with The Sunday Age, Ms Judd said her proposals were aimed at both reducing court delays and improving the court process for victims of sexual offences.
She suggests a temporary discount (such as 20 to 30 per cent) on sentences for criminals who plead guilty within a prescribed time, a proposal she acknowledged could lead to “an outcry”.
Ms Judd’s concern with the delay is that more accused criminals could spend more time on remand than the sentence they would otherwise serve; and more serious offenders could be released while awaiting trial due to the long time they would spend in prison without being found guilty.
“Some offenders who would otherwise be remanded will be granted bail based on projected delay,” Ms Judd said.
Pre-trial hearings, called committal hearings, for sexual offences would be abolished to speed up the court process and to prevent victims from having to be cross-examined twice.
Committal hearings take place in the Magistrates Court before a magistrate who tests whether there is enough evidence to go to trial before a jury in the higher courts.
Often questioning of victims and witnesses is harsher in these kinds of hearings, particularly from defence lawyers, because there’s no jury present. There’s an assumption that juries have an aversion to aggressive questioning.
Legislation prevented certain types of questioning, including about a victim’s sexual history, but inappropriate questions still happened, Ms Judd said.
She also said ground rules hearings, ordinarily used to decide how a child or someone with a cognitive impairment could be questioned, could be expanded to allow for cases involving vulnerable adult victims of sexual and family violence offences.
Ms Judd said judges could be given increased powers to indicate to an offender what their sentence would be when they were weighing up whether to plead guilty or press ahead with a trial, which could prompt more guilty pleas and reduce court lists.
At the moment, judges can indicate if they’d impose an immediate term of imprisonment, but not how long.
Some of the propositions could be unpopular with a judiciary wary of prescribed discounts in sentences, but allowing judges to indicate a sentencing range is popular among criminal lawyers.
Ms Judd said legislating a temporary discount in jail time, that would last for the next six to 12 months, in exchange for early guilty pleas might result in less time off sentences in the end. If prisoners had to wait longer for their day in court than their eventual sentence, that delay would be taken into account and result in significant reductions in jail terms.
“There might be an outcry about this, but I’d rather they get their discount now than they get that big discount at the end from the delay,” Ms Judd said.
Victorian offenders are already awarded a reduction in their sentence if they plead guilty, but there’s no set discount.
Criminal Bar Association chair David Hallowes, SC, said allowing judges to give a more explicit sentencing indication would help most with court delays.
“In terms of the backlog we have, that really would be a concrete way that could assist,” Mr Hallowes said.
However, he said abolishing committal hearings wouldn’t address the backlog.
“[Pre-trial hearings] can lead to either the prosecution discontinuing, the defence pleading or there being a resolution somewhere in the middle,” he said.
Victims of Crime Commissioner Fiona McLeay said she supported the permanent abolition of pre-trial committal hearings because they frequently traumatised victims and slowed the court process.
“My view is that the current backlog is a resourcing issue. Courts should be provided with funding to deal with the impact of COVID-19 without restricting victims’ access to justice,” Ms McLeay said.
On the issue of fixed sentence discounts for guilty pleas, Ms McLeay said it was important court processes did not leave victims feeling betrayed and further traumatised, and changes did not erode victims’ right to participate.
The heads of the courts and the government are grappling with how to tackle the unprecedented backlog, while in a separate piece of work, the Victorian Law Reform Commission is also investigating ways to improve the justice system’s response to sexual offences.
Ms Judd said the delay caused by the pandemic was already having an impact on victims of crime.
“The COVID delays are having a traumatic effect on many victims and witnesses. And this prolongs the duration of their distress and results in significant uncertainty,” she said.
Ashleigh Rae Cooper, who went through the court process after she was sexually assaulted, said the system could be improved if victims were allowed their own legal representation.Credit:Justin McManus
One woman, who was raped, said she was in the witness box for hours in her trial, which ended in a not guilty verdict about five years ago.
“To say I got hammered is probably an understatement to be honest,” she said.
“I walked into court feeling quite empowered, I walked out feeling completely shattered.”
Ashleigh Rae Cooper, who wasn’t forced to take the stand because her abuser pleaded guilty, said her experience could have been improved if victims were allowed to have legal representation, which is another proposal being considered by the Law Reform Commission.
“It’s not an easy choice (to go to court). It can have a really serious impact,” she said.
“But it helped me to restore my personal sense of agency and power.”
With Nicole Precel.
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