R v Robinson [1993] 2 All ER 1, 3.
A- G (Tas) v C [2003] TASSC 8 (sentence increased); G (Tas) v Gee [2003] TASSC 40 (sentence
4.2.1.1 Data coding issues
There were a number of instances where a decision had to be made as to how to code certain variables. This section explains the key instances where such determinations were made.
Offence classification
When creating the Supreme Court database, the terminology for offences employed by the judicial officer and the offence type groups in the TasinLaw database were employed, whereas the data later provided to me for the Magistrates’ Court classified all offences by the Australian Standard of Classification (ASOC) code. All offences imposed in the Supreme Court in 2002-2004 were therefore subsequently recoded with the appropriate ASOC code as set out in Appendix H.
In reconciling the two classification systems, however, I found a number of inconsistencies of approach. Robbery, for example, is grouped together with burglary under the Tasmanian classification (Burglary/stealing/like offences) but is a separate category under ASOC (06: Robbery, extortion and related offences), while the Tasmanian ‘miscellaneous’ group contains several offences which are not classified in the equivalent ASOC group, and vice versa. Furthermore, the ASOC codes do not distinguish between burglary and aggravated burglary (which are both classed as 0711: Unlawful entry with intent/burglary, break and enter) or between armed robbery, aggravated robbery and aggravated armed robbery (0611: Aggravated robbery), although this is distinguished from the simple offences of robbery (0612: Non-aggravated robbery).
At the time of sentence, the judges would obviously have had regard to the local terminology. The data presented in Warner’s influential Sentencing in Tasmania are also collated and presented on this basis. On the other hand, the Magistrates’ Court data are presented on the basis of ASOC codes, which were after all, developed to promote national consistency. The following hybrid approach to classification was
7 In this Chapter, each time an offender is sentenced is counted separately, in contrast with the
analysis in Chapters 6 and 7, where each offender is counted only once. There were two offenders sentenced three times in the reference period (6 sentences) and 41 offenders who were sentenced twice (82 separate sentences). The remaining 750 offenders were sentenced only once in the reference period, giving a total of 793 individual offenders dealt with by the Court.
8 See
160
adopted in the discussion of Supreme Court offences: in this Chapter, when presenting data on the use of suspended sentences by offence type, the ASOC classification for both the Supreme and Magistrates’ Court data is employed, but in Chapter 5, where case studies are presented, the discussion adopts the terminology used by the judicial officer when imposing the sentence.
Offence type
Because of the small numbers of some offence types within ASOC divisions, certain types of offences were grouped together in order to give data groups of sufficient size to be meaningful, as set out in Table 4-1.
Table 4-1: Offence types by ASOC code and offence group
ASOC division Offence type
01: Homicide and related offences (n=16) Violence (n=190) 02: Acts intended to cause injury (n=170) Violence (n=190) 03: Sexual assault and related offences (n=92) Sexual assault (n=92) 04: Dangerous or negligent acts endangering persons (n=4) Violence (n=190) 05: Abduction and related offences (n=0) Violence (n=190) 06: Robbery, extortion and related offences (n=77) Robbery (n=77) 07: Unlawful entry/burglary (n=169) Property (n=281) 08: Theft and related offences (n=78) Property (n=281) 09: Deception and related offences (n=34) Property (n=281)
10: Illicit drug offences (n=58) Drugs (n=58)
11: Weapons and explosives offences (n=2) Other (n=140) 12: Property damage and environmental offences (n=64) Other (n=140) 13: Public order offences (n=18) Other (n=140) 14: Road traffic and motor vehicle regulatory offences Other (n=140) 15: Offences against justice/government (n=46) Other (n=140) 16: Miscellaneous offences (n=10) Other (n=140) Offence seriousness
There is an extensive body of literature on ranking the seriousness of offences.9 For
the purposes of simplicity and consistency, the National Offence Index (NOI), which was developed by the Australian Bureau of Statistics and ranks offences by
9 See George Gescheider, Edgar Catlin and Anne Fontana, 'Psychophysical Measurement of the
Judged Seriousness of Crimes and Severity of Punishments' (1982) 19 Bulletin of the Psychonomic Society 275; Mark Warr, 'What is the Perceived Seriousness of Crimes?' (1989) 20 Criminology 185;
Richard Fox and Arie Freiberg, 'Ranking Offence Seriousness in Reviewing Statutory Maximum Penalties' (1990) 23 Australian and New Zealand Journal of Criminology 165; David Indermaur, Perceptions of Crime Seriousness and Sentencing, Criminology Research Council, Canberra (1990);
David Parton, Mark Hansel and John Stratton, 'Measuring Crime Seriousness' (1991) 31 British Journal of Criminology 72; Andrew von Hirsch and Nils Jareborg, 'Gauging Criminal Harm: A
Living-Standard Analysis' (1991) 11 Oxford Journal of Legal Studies 1; James Carlson and Tricia
Williams, 'Perspectives on the Seriousness of Crimes' (1993) 22 Social Science Research 190; Deirdre
Golash and James Lynch, 'Public Opinion, Crime Seriousness and Sentencing Policy' (1995) 22
American Journal of Criminal Law 703; Michael O'Connell and Anthony Whelan, 'Taking Wrongs
Seriously: Public Perceptions of Crime Seriousness' (1996) 36 British Journal of Criminology 299;
Stelios Stylianou, 'Measuring Crime Seriousness Perceptions - What Have We Learned and What Else Do We Want to Know?' (2003) 31 Journal of Criminal Justice 37 and Richard Edney and Mirko
Bagaric, Australian Sentencing: Principles and Practice, Cambridge University Press, Port
161
Australian Standard of Classification (ASOC) code, was adopted.10 ‘ASOC 0111:
Murder’ is ranked as the most serious (NOI=1) and ‘ASOC 1699: Miscellaneous offences’ as the least serious offence (NOI=155).11 This analysis employs the model
developed by the South Australian Office of Crime Statistics and Research,12 which
groups offences into three broad levels, as follows: Table 4-2: Offence seriousness
Offence seriousness
NOI Examples of offending
Serious 1 – 61 Homicide; most violent and sexual offences; burglary; conspiracy; perverting the course of justice.
Moderate 62 – 93 Fraud; theft; dangerous or negligent driving.
Minor 94 – 157 Breach of bail and other court orders; trespass; offensive language; various regulatory traffic offences.
Wholly vs partly suspended sentences
Most partly suspended sentences involve the judge ordering a sentence of, for example, six months, one month of which is yet to be served and the balance suspended. In some cases, however, the judge takes time spent in custody on remand into account and orders the sentence backdated to that date, with the balance of the sentence from the date of sentencing to be wholly suspended. In order to distinguish between these two sentences, where only one had time yet to be served by the offender, the latter was coded as a wholly suspended sentence of the length of sentence remaining. Accordingly, if, for example, the offender had been in custody for one month and received a six month partly suspended sentence backdated by one month, this was coded as a wholly suspended sentence of five months. This approach was adopted because the latter is a wholly suspended sentence from the time the sentence is ordered by the court, while time spent on remand, over which the judge has no control, is different in nature from the unsuspended portion of a partly suspended sentence.
4.2.1.2 Dataset
In this section, I set out the information obtained for the Supreme Court dataset. Table 4-3 sets out the information gathered for all offenders:
Table 4-3: General data fields for 2002-2004 dataset – Supreme Court
Data field Details and comments
Date of sentence Eg 01/02/2004
Sentencing judge Cox CJ, Crawford, Underwood, Blow, Evans or Slicer JJ Offender name Eg Smith, Tom
Offender age and age group Eg 23 and 18-24 Offender sex Male/female
10 For discussion, see Catherine Andersson, 'Development of a National Offence Index for the
Ranking of Offences' (Paper presented at the Evaluation in Crime and Justice: Trends and Methods Conference, Canberra, 24-25 March 2003).
11 The least serious categories listed are in fact ASOC 9998: No data provided’ (NOI=156) and
‘ASOC 9999: Inadequately described’ (NOI=157).
12 See Elissa Corlett, Grace Skrzypiec and Nichole Hunter,
Offending Profiles of SA Drug Court Pilot,
Office of Crime Statistics and Research, Adelaide (2005) and Grace Skrzypiec, Offending at 16 to 20 Years of Age, Office of Crime Statistics and Research, Adelaide (2005).
162
Data field Details and comments
Principal offence by name
and ASOC code13 Eg Armed Robbery and ASOC 0611
Principal offence type by name and ASOC division
Eg Property and ASOC 08: Theft and related offences Offence seriousness Minor, moderate or serious14
Number of counts and counts grouped
Eg 14 and 11-20
Prior convictions Not stated, nil, minor or significant
Most severe prior sentence Not stated, nil, non-custodial, suspended sentence or custody
Prior suspended sentence Yes/no
Plea Guilty/not guilty
Co-offender Yes/no Most severe sentence
imposed
Unsuspended, partly suspended or wholly suspended sentence or non-custodial order
Comments Text field for case details and comments
Where a non-custodial order was imposed, including in combination with a custodial order, the following details were recorded:
Table 4-4: Data fields for non-custodial orders
Data field Details and comments
Type of order Community service order, probation, compensation, fine, pecuniary penalty, unsupervised release, licence
disqualification, recognizance, other Fine/compensation/pecuniary
penalty
Quantum ($)/adjourned sine die (for compensation)
Probation Duration (months)
Probation with conditions Yes/no
Community service order Duration (hours)
Where a custodial order was imposed, the following details were recorded: Table 4-5: Data fields for custodial orders
Data field Details and comments
Type of sentence Unsuspended, partly suspended or wholly suspended Sentence length/grouped
length
Eg 7 months and 6<9 months Non-parole period Eg 18 months
For suspended sentences, the following details were recorded:
13 The Australian Standard Offence Classification (ASOC) was developed by the Australian Bureau of
Statistics (ABS) for use in the collection and publication of crime and justice statistics and provides a classificatory framework for the comparison of statistics on offences across Australia: see Australian Bureau of Statistics, Australian Standard Offence Classification (ASOC), Cat No 1234.0, Canberra
(1997). The classifications are presently under review: Australian Bureau of Statistics, Proposed Revisisions to the Australian Standard Offence Classification (ASOC), Final Draft, Canberra,
December 2007.
14 As set out in
163 Table 4-6: Data fields for suspended sentences
Data field Details and comments Suspended portion of
partly suspended sentence
Eg 3 months Period to be served of
partly suspended sentence
Eg 4 months Suspension on condition of
good behaviour (OCGB)
Yes/no
Other condition imposed Supervision by probation officer, not commit certain offences, supervision and not commit certain offences, other
Operational period Duration (years), eg 1.5 Reasons for suspension
given Yes/no
Details of the reasons for
suspension15 Eg remorse