18 September 2013

Sentencing and Hate Crimes

I have been catching up with the NSW Law Reform Commission's major report [PDF] on Sentencing (Report 139), including discussion of hate crimes.

The report is accompanied by a companion volume titled Sentencing - Patterns and Statistics [PDF], a "comprehensive summary of the research on sentencing as well as an overview of sentencing statistics".

The Commission indicates that its aim is to:
  • achieve a sentencing regime that is fair for offenders, victims and the community as a whole; 
  • reduce the complexity of sentencing law and deliver transparency and consistency in approach; and 
  • develop a range of sentencing options that are flexible to the circumstances of the case and that promote prevention and reduction of reoffending. 
We have also focussed in this review on the government’s objectives of preventing and reducing crime and reducing the level of offending as set out in NSW 2021
In response it proposes a revised Crimes (Sentencing) Act to replace the Crimes (Sentencing Procedure) Act 1999 (NSW), albeit preserve many  provisions of the current statute. The revised enactment would -
  • ensure that the offender is punished for the offence and is held accountable for his or her actions, 
  • denounce the conduct of the offender,
  • recognise the harm done to the victim of the crime and the community,
  • protect the community from the offender,
  • deter the offender and others from committing offences,
  • promote the rehabilitation of the offender, and
  • reduce crime.
The report notes that
Section 21A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) currently lists 22 aggravating and 13 mitigating factors that courts must take into account when formulating an appropriate sentence, even though the common law already addresses many of these. The large number of s 21A factors and their division into “aggravating” and “mitigating” factors has made them difficult to apply.
To simplify the sentencing process, while at the same time increasing the level of transparency and consistency in the factors the courts apply, we propose the replacement of s 21A by a new provision that lists six general factors that a court should consider in sentencing, leaving the detail to the common law. These factors include the nature, circumstances and seriousness of the offence, the personal circumstances and vulnerability of the victim, the extent of the harm caused, the offender’s character, background and offending history, the extent of any remorse shown and the offender’s prospects of rehabilitation. (Recommendations 4.1 and 4.2)
We also propose a series of stand-alone provisions that would require the court to take into account circumstances where the offence: was committed while the offender was on conditional liberty; was motivated by group hatred or prejudice; or was committed while the offender was subject to a criminal organisations control order. These address important issues that generally aggravate the seriousness of the offence and consequently the sentence. (Recommendations 4.7-4.9)
Additionally, we propose that several stand-alone provisions should continue to require the court to disregard, as a potential mitigating factor: the consequences arising from conviction as a sex offender and high risk violent offender; the consequences arising from the confiscation of assets or forfeiture of the proceeds of crime; and good character in child sexual offences (Recommendations 4.4 - 4.6)
A revised Crimes (Sentencing) Act should also replicate the current discounts for guilty pleas, assistance to the authorities and assistance in facilitating the conduct of the trial. We recommend clarifying that a guilty plea discount reflects only the utilitarian value of the plea and requiring that the court quantify it. These factors have an important role to play in improving the efficiency and effectiveness of the criminal justice system. (Recommendations 5.1-5.3)
The rules that courts must follow when setting a term of imprisonment have become overly complicated and difficult to implement. We recommend improvements to simplify these rules, including:
  • A return to the top down approach which requires the court to set the head sentence first followed by the non-parole period, except where the court imposes a fixed term sentence. (Recommendation 6.1) 
  • The adoption of a presumptive ratio that the non-parole period should be two- thirds of the head sentence. The court should be able to depart from the ratio only if, having regard to all the purposes of sentencing, it is satisfied that there are good reasons for such a departure. This would replace the over-used and much criticised “special circumstances” test. (Recommendation 6.2) 
  • The preservation and clarification of the operation of aggregate sentencing, and the introduction of new provisions (as an alternative) to permit a court to accumulate sentences into an overall effective head sentence and then to fix a single non-parole period. (Recommendation 6.4-6.6)
We do not propose abolishing sentences of imprisonment of six months or less and consider that the courts should continue to be precluded from setting a non-parole period in these cases. While short sentences have a number of problems, including the potential to increase the risk of reoffending, they are nonetheless part of the continuum of sentencing. We have focussed on improving community-based custodial options as a way of discouraging the use of short sentences. (Recommendations 6.8 and 6.9)
We also oppose combining imprisonment with any community-based sentences, although we will give further consideration to the option of back-end home detention as part of our review of parole in NSW.
In discussing hate crimes the report states that
A revised Crimes (Sentencing) Act should contain a stand-alone provision to the effect that the court, when sentencing for an offence that was motivated wholly or partly by hatred for or prejudice against a group of people to which the offender believed the victim belonged or with which the offender believed the victim was associated (being people of a particular religious belief, racial, ethnic or national origin, age, sexual orientation, transgender status or having a particular disability or illness), should take that motivation into account when assessing the need for the sentence to contain an additional element of deterrence, denunciation and/or community protection from the offender, and also when assessing the offender’s prospects of rehabilitation.
It goes on to comment that
Section 21A of the CSPA currently includes, as an aggravating factor, that the offence was: motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability). 
The extent to which the common law regarded a motivation of this kind as a factor elevating the seriousness of an offence is not entirely clear, although some Australian decisions appear to have accepted it as a relevant consideration going either to the objective criminality of the offending, or to deterrence. 
Arguably the common law in Australia would have regarded this form of offending as justifying special consideration, by reference to foreseeability of harm and general deterrence factors, without the need to resort to racial or group hatred reasoning. To a significant extent, however, legislative intervention, similar to that in place in NSW, has put to rest any such issue in the other Australian jurisdictions. 
Hate legislation of this kind has tended to fall into three separate models. 
Aggravating factor model 
This is the approach adopted in NSW. It is mirrored in the legislation in force in the Northern Territory which provides that the circumstances relating to the commission of an offence that can be regarded as an aggravating factor include that “the offence was motivated by hate against a group of people”. 
Although not specifically described as an aggravating factor, Victorian legislation requires the court, when sentencing an offender, to have regard to whether the offence was: motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated. 
The sentencing legislation of several other jurisdictions treats hostility bias or hatred towards a group with a common characteristic (for example of race, colour, nationality, religion, gender identity, sexual orientation, age or disability) as an aggravating factor where it was the motivation for committing an offence. The Tasmania Law Reform Institute also recommended the model in relation to racist aggravation. 
Aggravated offences – sentence enhancement model 
An alternative approach has been to enact an aggravated form of an offence carrying an increased maximum sentence. An example can be seen in the Crime and Disorder Act 1998 (UK). Under that Act, aggravated forms of the offences of assault, criminal damage, public order or harassment, are available where the offender demonstrates hostility towards the victim based on the victim’s membership (or presumed membership) of a racial group, or where the offence, was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. 
Similarly the Criminal Code (WA) provides for aggravated offences of assault (in its various forms) where the offence is committed in “circumstances of racial aggravation”. Similar provisions apply in relation to offences involving threats, and criminal damage. For the purpose of these provisions circumstances of racial aggravation are defined to mean circumstances in which: (a) immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or (b) the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.
Vilification offences 
In NSW it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group on the ground of either the race, sexual orientation, or disability of that person or members of that group.  Offences of serious vilification have been introduced that will apply where that form of conduct includes threatening or inciting others to threaten physical harm towards, or towards any property of, the person or group. 
Similar substantive offences of serious vilification have been introduced elsewhere in Australia, either in the form of anti-discrimination legislation;  or in the form of racial vilification legislation;  or as part of a general criminal code. 
These provisions give rise to stand alone offences. Although they may overlap with another offence which was aggravated because of some form of group hatred or prejudice, in accordance with the De Simoni principle, these provisions will not of themselves be relevant when the offender is sentenced for that other offence. 
Adoption of a stand-alone provision 
In this report we have confined our attention to the way in which a motivation of hatred for, or prejudice against, a group of which the victim is a member or presumed member, should be taken into account under a revised Crimes (Sentencing) Act. We have not considered the offence of serious vilification, although we note that the Law and Justice Committee of the NSW Legislative Council is conducting an inquiry into racial vilification law. Nor have we considered the introduction of aggravated forms of offences, such as assault, that can be seen in the offence enhancement model. 
The reason for singling out hate crime motivation as a sentencing factor is clear. Criminal conduct associated with hostility or hatred towards or prejudice against marginalised or vulnerable or disadvantaged groups deserves special consideration because of:
  • the harm and humiliation and reduced self worth experienced by a victim who already feels marginalised and at risk, and to the increased feeling of vulnerability among the community to which that person belongs; 
  • its effect in undermining the benefits of a multicultural or diverse society; 
  • the need for a public reaffirmation of the values of tolerance and respect, and the unacceptability of irrational prejudices;  and 
  • the need to denounce and to deter criminal conduct motivated by racism, religious intolerance, homophobia, and other forms of prejudice.
The decisions in relation to the s 21A(2)(h) factor to date suggest that:
  • Simple hatred of a victim will not suffice. The provision is concerned with offences that are motivated by hatred or prejudice against a group. 
  • The offence must be motivated by actual hatred or prejudice towards a group, and not simply because of an opportunistic belief, for example, that members of  a particular group are likely to keep property in their home that is worth stealing.  
  • Intra-racial or intra-religious group hatred or prejudice will qualify. It is not necessary that the offence be motivated by inter-racial or inter-religious hatred or prejudice. 
  • The fact that the offence was motivated by hatred for or against a person believed to be a member of a group (paedophiles) that was not one that has traditionally been recognised as a category of vulnerable persons protected under hate laws, does not exclude its application.  
There is nothing controversial in the first three decisions, but the fourth is troubling, in giving a broad interpretation to the expression “group” in s 21A(2)(h), that extends beyond those mentioned in parenthesis.
We consider that a revised Crimes (Sentencing) Act should contain a stand-alone provision that requires the court, where appropriate, to take into account the fact that an offence was motivated by, or associated with, a hatred for or prejudice of the kind that has become the subject of hate crime laws. Taking it into account (as elevating the seriousness of the offence, and as justifying additional weight to specific and general deterrence) is in our view preferable to the sentence enhancement model. 
In particular, this approach calls for a more direct consideration of the objective culpability, and need for deterrence associated with this form of criminality, than the indirect approach associated with an increase in the maximum available penalty for individual offences. It is a provision that will apply across the board without the need to identify and amend each section that creates an offence which might be committed in circumstances amounting to a hate crime. 
Adoption of a provision of this kind in place of s 21A(2)(h), as a stand-alone section, would assist in addressing concerns of the kind that have led to the current inquiry of the Law and Justice Committee of the NSW Legislative Council into racial vilification laws. Although that inquiry is confined to racial vilification, similar considerations apply in relation to the other forms of serious vilification which give rise to offences under the Anti-Discrimination Act 1977 (NSW), and which might sit more comfortably in the Crimes Act 1900 (NSW). 
As has been noted in several law reform reports, sentencing law needs to provide a response to hate crimes that: 
  • reinforces the existence of a tolerant multi-cultural society; 
  • respects minority groups;   
  • recognises the particular form of criminality and harm both direct and indirect that is associated with this form of criminality; and 
  • makes a public symbolic statement of the abhorrence with which it is viewed and that encourages its denunciation.
The test 
The various models of hate crime laws mentioned above employ either a “motive test” or a “group selection test”, or a test that simply depends on a “demonstration of hostility test” that, despite their diversity, are linked by a common purpose to specifically and publicly target crime that is motivated or otherwise shaped by prejudice. 
We propose adopting the motivation test, as it more precisely focuses attention on the fact that the offending is related to group hatred or prejudice. The selection test would extend application of the section to cases where the offending was unrelated to hatred or prejudice, that is to cases where, for example the victim was selected because of a stereotype that a particular group of people was an easy target, being wealthy or being likely to have readily accessible assets worth stealing. Our approach in this respect would accord with that taken in respect of the current s 21A(2)(h); although it would differ from that taken in the Victorian decision of R v Gouros
We do not favour the demonstration of a hostility test. In many cases evidence of the demonstration of hostility immediately before, during or immediately after the offending conduct, for example, through speech, will be available to make good the motivation test. In other cases however that behaviour may be unrelated to the reason for the offence, and involve little more than spontaneous insult. 
Although it would be possible to introduce a provision that incorporates all three tests, as the Tasmania Law Reform Institute proposed, we prefer to confine the test to that of motivation. This test links the aggravating circumstance directly to the reason for its introduction as a response to hate-motivated crime. 
We propose a revision of the formulation in s 21A(2)(h) that would permit courts to apply the provision where the offence was motivated “wholly or partly” by the hatred or prejudice. This would facilitate proof and address those cases where there was a mixed motivation for the offence. It would also accord with the approach taken in legislation in Victoria and New Zealand. 
The groups 
In our view the focus of the legislation should be on the minority and vulnerable or subjugated groups in whose interest hate crime laws have traditionally been developed. This would require a departure from the CCA’s approach in Dunn v R where the interpretation that it gave to s 21A(2)(h) would effectively extend its reach to hatred or prejudice in relation to any group with common characteristics, for example, cyclists or lawyers. On this basis we would confine the provision to those cases where the hatred or prejudice related to “a group of people to which the offender believed or perceived the victim belonged, comprising people of a particular religious belief, racial, ethnic or national origin, age, sexual orientation, transgender status or having a particular disability or illness”. 
In this formulation we have deleted “language” as a group unifying factor compared to the existing list in s 21A(2)(h). It has an indeterminate reach, it does not necessarily denote minority or vulnerable status, and it is likely to add little to the “racial, ethnic or national” origin criterion. We have added “illness” as well as disability, which is intended to capture issues such as HIV/AIDS status. We have also added “transgender status” on the suggestion of stakeholders and in conformity with the Anti-Discrimination Act 1977 (NSW). 
It is implicit in the foregoing that the fact of simple hatred towards a victim unassociated with that person’s perceived membership of a relevant group will not suffice. This is consistent with existing authority in NSW.   
Extended reach – association 
Potentially there are circumstances in which the victim may be indirectly caught up in a hate-related crime, for example, where that person is assaulted when going to the assistance of another person who would fall directly within the reach of the proposed provision. Similarly the perceived association of the victim with a “protected group”, not because of membership of that group, but because the fact that the victim provided advocacy or support services for that group, may have been the factor motivating an attack. 
Situations of this kind have been accommodated in the Sentencing Act 1991 (Vic),  and we consider it desirable to revise the formulation contained in s 21A(2)(h) by adding association as a criterion.