In discussing the backlog in criminal appeals the report states that -
Data from the Productivity Commission show that, in recent years, there has been a large backlog of pending criminal appeals in the Court of Appeal. Since 2003–04, the backlog of criminal appeals has grown, although data from the Court of Appeal’s CourtView database show that the number of pending criminal appeals has substantially reduced in 2010–11.The report goes on to comment that
At the peak of the backlog, in 2009–10, the number of pending criminal appeals was 548. Based on the number of criminal appeals finalised in that year (506), even if no new criminal appeals were lodged, it would have taken over one year to clear this backlog. In 2009–10, Victoria had the largest criminal appeal backlog compared with all other Australian states and territories.
The immediate cause of the backlog, as it stood in Victoria in 2009–10, is that, until very recently, increases in the number of criminal appeals lodged have outnumbered the criminal appeals finalised each year. There have been strong increases in the number of criminal appeals lodged in Victoria, in particular from 2005–06 to 2009–10. Although interstate comparisons must be made with caution, criminal lodgements fell in New South Wales between 2005–06 and 2009–10, while the opposite trend is evident in Victoria. Although finalisations of criminal appeals have also increased in Victoria over the same period, these have not been sufficient to allow the Court of Appeal to cope with the appeals that were lodged.
The most recent data available from the Court of Appeal’s CourtView database show that the backlog of criminal appeals in Victoria has dropped substantially. The number of pending criminal appeals reduced from 548 in 2009–10 to 404 in 2010–11, as criminal appeal lodgements dropped from 518 in 2009–10 to 397 2010–11 and criminal appeal finalisations substantially increased from 506 in 2009–10 to 623 in 2010–11. While there is still a backlog of pending criminal appeals of 404 as at 2010–11, CourtView data on criminal appeals for the first half of 2011–12 show further reductions in the number of pending criminal appeals. The number of pending criminal appeals as at 31 December 2011 was 259, a reduction of 145 criminal appeals from the 404 appeals that were pending as at the end of 2010–11.
These data suggest an early positive sign of a change to the previously increasing trends in criminal appeal lodgements and pending criminal appeals, although further trend data are required before fixed conclusions may be drawn. Although the backlog has been substantially reduced in 2010–11, it is unclear what other factors caused this backlog, which, up to 2009–10, had been large and increasing. This report examines a number of possible reasons for the observed increases in criminal appeal lodgements and the criminal appeal backlog.
One possible reason is that the increase in criminal appeals lodged between 2005–06 and 2009–10 may reflect an increase in the number of cases dealt with in the trial courts. Although the data suggest some relationship between trends in criminal case lodgements in the higher courts and criminal appeal lodgements, the increase in the number of criminal appeal lodgements cannot simply be attributed to any significant increase in the number of criminal cases.
Another possible reason is that there has been a change in the rate at which criminal cases are appealed. The data indicate that since 2005–06, in Victoria there has been an increase in the rate at which criminal cases are appealed. This can be compared with New South Wales, where the rate at which criminal cases are appealed has decreased. Similarly, while there is no discernable trend in the number of cases sentenced in the higher courts since 2001–02, the data also show an increase in the rate at which sentenced cases are appealed in Victoria between 2005–06 and 2009–10.
There may have also been changes to sentencing practices that may have led to more appeals against sentence by offenders. There is some evidence of an increase in sentence severity in the period from 2003–04 to 2008–09; however, investigation of the relationship between sentencing practices and the rate at which sentences are appealed has been inconclusive.In relation to Crown appeals against sentence the report indicates that -
Further, it is possible that reforms to sexual assault laws since 2006–07 have contributed to the increase in criminal appeal lodgements from 2005–06 to 2009–10. This report finds that in 2007–08 and 2008–09, sexual offences comprised a substantial proportion of the Court of Appeal’s workload. In particular, rape is over-represented in both offender and Crown sentence appeals, compared with all cases sentenced in the higher courts. However, although there has been an increase in the proportion of criminal appeals that involve sexual offences, it is unclear whether these reforms have directly contributed to the increase in criminal appeal lodgements.
The data and analysis in this report shed light on these factors. The report does not seek to determine conclusively the precise roles of these factors and the complex interrelationships between them in contributing to trends in criminal appeal lodgements. The Council recognises that other factors may also have contributed to the increases in criminal appeal lodgements between 2005–06 and 2009–10.
It has not been possible to separate the criminal appeal trend data into sentence appeals; however, there is some indication of increases in sentence appeal lodgements, given the substantial proportion of criminal appeals that are referable to sentencing matters. Since 2008, the number of applications for leave to appeal against sentence and substantive offender sentence appeals listed and heard by the Court of Appeal has increased. These data could also be indicative of the effect that recent reforms introduced to target delay may be having on the Court of Appeal’s increased capacity to hear and determine more applications for leave to appeal and sentence appeals. The data also show that, until recently, success rates of applications for leave to appeal and substantive offender sentence appeals have increased over time, although there has been a downward trend in the number of applications for leave to appeal against sentence allowed since 2007. The success rates for substantive offender sentence appeals fluctuated between 2008 and 2010. The number of Crown sentence appeals listed and heard and their success rates have also fluctuated.
Data on the timing of sentence appeals in sentence appeal cases prior to the implementation of recent measures introduced by the Supreme Court and the Court of Appeal to address delay confirm the need for such measures. In 2007–08 and 2008–09, almost 60% of sentence appeals took more than 12 months to reach an outcome after the date of sentence. Analysis comparing the time taken to reach sentence appeal outcomes with sentence lengths shows that in almost one-third of cases offenders had served more than half of the non-parole period when the sentence appeal was determined.
Since 2007–08, the Court of Appeal has continued to increase the substantial proportion of sentence appeal judgments delivered on the same day as, or close to the day of, hearing the appeal. This, together with the most recent data available on criminal appeal lodgements and sentence appeals, provides further early indications of the effect that recent reforms may be having on addressing delay and reducing the criminal appeals backlog. Continued changes to these trends and reductions in delay may be expected in future under the significant legislative and procedural reforms to criminal appeals in Victoria, although it is too early to conclusively determine exactly what impact these reforms and changes will continue to have in further reducing the backlog of criminal appeals.
Crown appeals against sentence in Victoria have traditionally been considered to be rare and exceptional. The data show that, in the past decade to 2009–10, the number of Crown appeals against sentence has increased. While Crown sentence appeals are far from common when compared with offender sentence appeals, they can no longer be described as a ‘rarity’.Regarding substantive issues in sentence appeals it comments that
Data on success rates of Crown sentence appeals show that they have fluctuated between 2000–01 and 2009–10; thus, it is unclear whether success rates of Crown appeals have had a role in the increasing number of Crown appeals against sentence.
Although there have been a number of recent changes to the laws governing Crown sentence appeals, in particular the removal of the double jeopardy principle, recent consideration of these principles by the Court of Appeal suggests that these should not affect the frequency with which sentence appeals are brought by the Director of Public Prosecutions.
The instinctive synthesis approach to sentencing in Victoria means that the scope for appellate intervention is narrowly confined. Gaining an accurate knowledge of the nature of the errors being argued and found by the Court of Appeal and of the changes made to sentences in resentencing can lead to a better understanding and informed debate about the concerns surrounding the broader operation of substantive issues in sentence appeals.
Data on the grounds of appeal argued and found to be successful in sentence appeals show con- sistent trends in the types of sentencing errors being argued and found to be successful on appeal. The data comprise two datasets collected over two discrete time periods using slightly different methodologies and thus the two datasets are not directly comparable. However, the data in each dataset indicate that the most prevalent grounds of appeal found to have been successful by the Court of Appeal relate to manifest excess or manifest inadequacy of sentence and errors relating to the weight given to sentencing factors and principles.
In resentencing, the Court of Appeal may make changes to the individual sentences imposed, orders for cumulation and/or concurrency and the non-parole period. In some cases, substantial changes may be made to individual sentences, but the overall effect on the total effective sentence may be minimal. In other cases, significant changes may be made to the non-parole period, but the individual sentences and thus the total effective sentence may remain unchanged. The implications of the minimal impact that resentencing can have on the total effective sentence have recently been considered by the Court of Appeal.
The data show that in 19.5% of successful offender sentence appeals, resentencing resulted in no change being made to the original total effective sentence. In 13.1% of successful offender sentence appeals, resentencing resulted in no change being made to the original non-parole period. In relation to Crown sentence appeals, the data show that where such appeals were successful, resentencing resulted in substantial changes being made to the total effective sentence and non-parole period. The data show that in the vast majority (74.1%) of successful Crown sentence appeals between 2007–08 and 2008–09, the increase in total effective sentence in resentencing was over 30.0%. In 44.4% of successful Crown sentence appeals, resentencing resulted in increases of more than 50.0% in the non-parole period.