Chapter 6
Conclusion: anomalies in the maximum penalty structure

Conclusion

6.55The particular examples of anomalies in the current maximum penalty structure we have highlighted in this chapter are merely an illustration of what is clearly a more general problem. The way in which maximum penalties have been developed has resulted in a large number of manifestly irrational and unjustified penalties that are, relatively speaking, both too high and too low. They provide very poor guidance to the courts as to the appropriate level of punishment in the worst class of case and, to the extent they guide day to day sentencing practice, may well be resulting in injustice.

6.56However, as we said at the beginning of this chapter, while we have done enough to enable us to draw the clear conclusion major reform is required, we have not done enough work to recommend the appropriate placement of offences within the hierarchy of seriousness. Among other things, that requires much more detailed analysis of recent sentencing patterns than we have been able to undertake. In order for appropriate penalty values to be attached to each penalty category, there is also a need for much wider public consultation.

6.57Once that work has been done, there are at least three options for incorporating proposed maxima into statute.

6.58First, the maximum penalty value for each offence could be placed within the offence statute and also within a separate penalty statute.33 This would allow for greater accessibility, since the penalty for an offence could be ascertained either by referring to the penalty statute, or by looking at the relevant clause in the principal statute. The drawback to this approach is that any future amendments to the maximum penalty for an offence will require amendment to two separate statutes.

6.59Secondly, an alternative approach would be to have penalty values set out solely in a separate penalty statute. The advantage of this approach is that legislative change to maximum penalties would become easier. In addition, debate would be less focussed only on the individual offences under consideration. However, accessibility of the law would be compromised in so far as reference to two statutes would be required in order to ascertain the maximum penalty for an offence.

6.60The third option would be to retain the status quo, ie to forgo a separate penalty statute and simply list the maximum penalty alongside the offence in the principal statute. The pros and cons of all three approaches would need to be weighed, together with a review of relevant overseas experiences.

33For something similar, see the Victorian legislation: Crimes Act 1958 (Vic) and Sentencing Act 1991 (Vic).