Judicial Supervision of Criminal Offenders: Implications for practice

Magistrate Pauline Spencer
1Dandenong Magistrates Court

Bail and sentencing legislation in Victoria, Australia allows for judicial officers to require offenders to return to court for regular reviews before the same judicial officer.  This practice of ‘judicial supervision’ evolved out of the interdisciplinary legal philosophy of therapeutic jurisprudence and has been a common feature of specialist or problem-solving courts such as drug court and mental health courts. In mainstream Victorian criminal courts judicial supervision may be employed pre-plea (on bail), post plea (on deferral) and post sentence (as a judicial monitoring condition of a Community Corrections Order). Despite the existence of the legal framework, the approach to judicial supervision in practice varies.  Judicial officers have different purposes for judicial supervision, target different types of offenders, apply different approaches and methods.  Magistrate Pauline Spencer will reflect on the current state of research, the need for the development of a practice framework for judicial supervision and discuss implications for practice, judicial education and future research.


Magistrate Pauline Spencer sits at Dandenong Magistrates’ Court, Victoria, Australia.  She was appointed to the bench in 2006.  Prior to her appointment she worked as a private lawyer and then with community legal centres as a lawyer and in a policy role.  During this time she worked with people with addictions and wrote and spoke about the need for the justice system to find better ways of dealing with people who were committing offences as a result of addiction.  Since being appointed Magistrate Spencer has developed her interest in therapeutic jurisprudence and in particular its application in busy mainstream court setting.

Victorian Magistrates perceptions and use of judicial supervision in mainstream settings

Dr Benjamin Spivak1, Magistrate Pauline Spencer2, Professor James Ogloff1
1Centre for Forensic Behavioural Science, Swinburne University of Technology, 2Magistrates’ Court of Victoria

Judicial monitoring allows for an accused/offender to appear before the same magistrate on multiple occasions to encourage and monitor engagement in rehabilitation programs. While Victoria permits judicial supervision, the relevant law allows for extensive magisterial discretion in determining when the mechanism should be used (i.e. what are the characteristics of accused/offenders that are best targeted for judicial supervision), how it should be employed in practice, what techniques should be used in supervision hearings, how often review hearings take place, and what specific goals supervision should be aiming to meet.

This paper will outline the results of a research project aimed at addressing the lack of information around magistrates’ use and perceptions of judicial supervision. The research utilised surveys and semi-structured interviews to examine who was being targeted by judicial supervision and why, what types of supervision were utilised by magistrates (e.g. pre-plea, post plea, post sentence), what, if any, barriers to judicial supervision are perceived by magistrates, and what techniques are being used by magistrates in court review hearings when undertaking supervision.


Dr Benjamin Spivak is a lecturer at the Centre for Forensic Behavioural Science, Swinburne University of Technology. His research interests lie primarily in the field of legal decision-making and he has published in areas such as risk assessment, public health and jury decision-making.

A systematic review and meta-analysis of the effects of judicial supervision on recidivism, health, lifestyle factors of criminal offenders

Michael Trood1, Dr Benjamin Spivak1, Professor James Ogloff1
1Centre for Forensic Behavioural Science, Swinburne University of Technology

 Judicial supervision is a key component of problem-solving courts. Meta-analytic research investigating the effectiveness of interventions that utilize judicial supervision has found mixed results. Research has yet to synthesize effects of judicial supervision on offender health and well-being outcomes. This presentation will present the results of a recent systematic review and meta-analysis that synthesized extant recidivism and well-being outcomes from empirical research that compared judicially supervised offenders with non-supervised controls. Implications for judicial supervision practice in mainstream settings will be discussed.


Michael Trood is a PhD candidate at Swinburne University of Technology’s Centre for Forensic Behavioural Sciences. His general areas of interest are media effects on behaviour and therapeutic jurisprudence. His current research is investigating the utility of judicial supervision of improving offender outcomes across mainstream and specialty courts.

Silence Matters: Quantifying the use of the right to silence in the summary jurisdiction of NSW

Dr Eugene Schofield-Georgeson1
1University Of Technology Sydney (UTS), Broadway, Australia

There is a scant existing literature on the efficacy of the right to silence (privilege against self-incrimination) in securing successful prosecutions in Australia and comparable jurisdictions. Existing research has downplayed its significance, with one study going so far as to label this right, ‘a sacred cow’ – a time-honoured, technocratic and lawyerly fantasy of procedural fairness.  These observations have resulted in various ‘law and order’ interventions seeking to limit its operation, first by the Thatcher and Major Governments in the UK in the early 1990s and recently, the O’Farrell and Baird Governments in NSW.

My recent research surveyed over 350 files from three separate Legal Aid offices to empirically assess the use of the right to silence by criminal defendants within the summary jurisdiction of NSW. No similar studies have been conducted in this jurisdiction. Contrary to the opinion outlined in the existing literature, the findings of this study show that the use of the privilege against self-incrimination does indeed matter for criminal defendants. In fact, the exercise of the right to silence has a very strong relationship with rates of conviction as well as the mitigation of criminal sentencing. This study also illustrates how the right to silence and its legislative restriction impact more significantly upon marginalised social groups, overrepresented among the subjects of criminal law, within the summary jurisdiction.


Eugene is a lecturer at UTS Law School and has practised criminal law for over ten years. He is the author of, ‘By What Authority? Criminal law in colonial NSW, 1788-1861’ (2018), a monograph tracing the evolution of fair trial rights in colonial Australia.

Longitudinal Constitutional Trends in Clemency since Sebba (1977)

Dr Daniel Pascoe1, Dr Andrew Novak2
1School of Law, City University Of Hong Kong, Kowloon Tong, Hong Kong, 2Department of Criminology, Law and Society, George Mason University, Fairfax, United States

Nearly all legal systems throughout the world possess an executive clemency mechanism, though legal frameworks and empirical practice vary significantly between nation states.  The typical starting points for comparative legal research on executive clemency are Leslie Sebba’s now-dated 1977 articles comparing clemency mechanisms globally.  Forming part of a forthcoming edited collection, this co-authored paper will document changes in worldwide constitutional trends on executive clemency (and the reasons for these changes) since Sebba’s two original studies were published back in 1977,  based on a systematic collection of constitutional provisions from documents around the world.

Not only have the number of worldwide constitutions mushroomed since 1977 with the continued demise of colonialism and the breakup of the Soviet Union, but moreover there have been notable changes in the worldwide picture for the clemency categories that Sebba originally identified as relevant to his constitutional surveys.  These were the identity of the formal clemency decision-maker, any recommending or countersigning bodies, other advisory bodies, allowances for special categories of offender and offence, and the categories of clemency mentioned in each constitution.

Using the comparative constitutional law methodology, this paper will demonstrate that even at the constitutional level (let alone within legislation and formal administrative procedures), clemency decision-making has become increasingly bureaucratized since 1977 as a greater number of parties are afforded the opportunity to influence the final decision-maker.  Moreover, national constitutions now place greater restrictions on the head of state’s plenary power to grant clemency, as compared with the situation in 1977.


Dr Daniel Pascoe has been an Assistant Professor at the School of Law, City University of Hong Kong, since 2014.  Dr Pascoe completed his undergraduate degrees in Asian Studies and in Law at ANU, and his MPhil and DPhil at Oxford.  His research interests include punishment and pardon in comparative perspective, Southeast Asian law, Islamic Law, Transitional Justice and Legal Pedagogy.  His first monograph is forthcoming with OUP in late 2018.


Factors Contributing to Terrorism Sentencing Outcomes in Indonesia

Ms Milda Istiqomah1
1UNSW, Sydney, Australia, 2Brawijaya University, Malang, Indonesia

In terrorism prosecutions, some researchers have claimed that extra-legal factors tend to influence sentencing outcomes, however, there is no adequate evidence that this tendency exists in Indonesian terrorism trials. This thesis aims to examine what factors contribute to sentencing decisions in Indonesian terrorism prosecutions. Using quantitative approach, this thesis will examine approximately 150 terrorism verdicts in Indonesia in the last ten years. The extent to which the selected independent factors predict sentence length is tested in a multiple regression analysis. This analysis suggests that the sentence can be to a large extent predicted by legal criteria. The total number of people died is the strongest predictor of sentence length in the model.


Milda Istiqomah is a PhD candidate in Faculty of Law, UNSW. Her research interest is on terrorism and sentencing.


An integrated approach to designing, delivering and reporting research: Combining practitioner and academic perspectives within the field of sentencing research.

Professor Elena Marchetti2, Ms Anne Edwards1
1Queensland Sentencing Advisory Council, Brisbane, Australia, 2Griffith University, Brisbane, Australia

Since the re-establishment of the Queensland Sentencing Advisory Council in late 2016, the Council has strived to design and deliver a range of professional products to fulfil its legislated functions. To date the Council has completed a number of major public policy reviews and research publications designed to influence public, political and professional considerations about sentencing. The Council universally agreed that their capacity to establish and sustain a strong reputation and influence sentencing-related conversations required a commitment to designing and delivering quality research within the applied environment. This presentation provides an insight into how the Council combined the skills of its appointed academic adviser and Deputy Chair with the experience of practitioners attached to the Council and its Secretariat to design its research agenda. The presentation will use two Council initiatives to highlight its integrated approach.  The first initiative directly brings practitioners and academics together to discuss sentencing related research, policy issues and topics of interest to promote collaboration and the exchange of ideas in an open forum. The second initiative describes the approach adopted for one of the Council’s formal Terms of Reference, balancing the imperatives of the applied environment such as time and resource constraints, with the need to design a research approach that delivers a quality product that upholds the reputation of the Council as a serious and professional body within sentencing research and the broader criminal justice system.


Professor Marchetti – Elena is the Acting Chair of the Queensland Sentencing Advisory Council and is a Professor and ARC Future Fellow at Griffith Law School, Griffith University. She has a long history of research in relation to Indigenous criminal justice programs and sentencing courts and ample experience in conducting and supervising research projects that involve marginalised groups.  Elena has been awarded two ARC funded fellowships.  The first which was awarded in 2009 focused on the use of Indigenous sentencing courts for partner violence offending. The second which was awarded in 2015 and which is currently ongoing, focuses on better ways of evaluating Indigenous-focused criminal justice programs.


Building public and professional confidence in Queensland’s criminal justice system: The role of sentencing councils.

Judge John Robertson1
1Queensland Sentencing Advisory Council, Brisbane, Australia

As newly appointed Chair of the Queensland Sentencing Advisory Council, this presentation will discuss how assuming this role provides an opportunity for the Council to extend its experience and professional skillset. Bringing direct practical knowledge about the sentencing process and a wealth of experienced as a result of involvement in a range of academic and educational endeavours such as authorship of the Queensland Sentencing Manual, as well as  various outreach activities, Judge Robertson will outline his vision for the Council as it extends its reputation within Queensland’s criminal justice system. Judge Robertson will discuss his commitment to diversifying the products of the Council to meet the varied needs of its expanding client base throughout Queensland and more broadly. A number of key future initiatives will be discussed as well as his thoughts on how best the Council can continue its efforts to provide responsive and accurate information about sentencing to all Queenslanders.


Judge Robertson retired from the District Court in 2018, after being the first solicitor to be appointed to that court in 1994. He initially served as the first resident judge in Ipswich, moving to Maroochydore in 2001. He was a judge of the Childrens Court of Queensland throughout his judicial career and President of that court between 1999 and 2002. He was Deputy President of the Queensland Community Corrections Board between 1991 and 1994. Judge Robertson was regional convenor (Queensland) of the National Judicial College of Australia between 2002 and 2007. As a solicitor, he established the Brisbane-based firm JM Robertson & Co in 1978, which changed its name to Robertson O’Gorman in 1981. Throughout his legal career he has lectured and written extensively on criminal law issues including sentencing, juries, restorative justice and advocacy. In 2003 he was awarded an honorary doctorate of QUT for services to the law and legal education. Judge Robertson is the author of the Queensland Sentencing Manual, a practical resource designed for practitioners and students relating to sentencing principles in Queensland.


Measuring public attitudes to sentencing: A focus group approach to assessing public responses toward sentencing for child homicide by Queensland criminal courts.

Ms Marni Manning1, Ms Laura Hidderley1
1Queensland Sentencing Advisory Council, Brisbane, Australia

Laura Hidderley – Laura has designed and worked on major quantitative research projects in a variety of government departments. At the Australian Taxation Office, she worked on two surveys simultaneously which involved liaising with stakeholders, sample management, data analysis and report writing. Previously, Laura worked on the Longitudinal Study of Indigenous Children (Footprints in Time), where she managed survey development and data analysis. Laura is a key manager of data on behalf of the Queensland Sentencing Advisory Council and is well-versed in the obligations associated with the effective and ethical management of sensitive information. Laura has bachelor degrees in Criminology and Criminal Justice and in Behavioural Science and an honours degree in Criminology and Criminal Justice.

In October 2017, The Honourable Yvette D’Ath MP, Attorney-General and Minister for Justice and Leader of the House requested the Queensland Sentencing Advisory Council (the Council) to review ‘the penalties imposed on sentence for criminal offences arising from the death of a child’. The Government recognised community concern about sentences arising from offences involving the death of a child. The broader objectives of the Council’s work are to provide advice to the Attorney-General about:

  • Current penalties imposed on sentence for offence arising from the death of a child and current sentencing practices;
  • Whether the penalties imposed adequately reflect the particular vulnerabilities of these victims;
  • Whether current sentencing considerations are adequate for the purpose of sentencing this cohort of offenders, and identify if specific additional legislative guidance is required;
  • Ways to enhance knowledge and understanding of the community in relation to penalties imposed on sentence for criminal offences arising from the death of a child; and
  • Any legislative or other changes required to ensure the importation of appropriate sentences for criminal offences arising from the death of a child.

While much of the Council’s work was able to be addressed using administrative data, assessing community perceptions about appropriateness and adequacy as well as mechanisms for enhancing community knowledge about sentencing for these offences required a different approach. The Council adopted focus groups for assessing community attitudes. While not representative, this approach provided significant insights into public perceptions, and provided community input into this important public policy issue.


Marni Manning – Marni’s career began in the Queensland Police Service where she was awarded the Federal Bureau of Investigation National Academy scholarship to research internet-based crime. She has worked at the Department of the Premier and Cabinet and Griffith University, and is currently employed by the Queensland Sentencing Advisory Council. Marni also worked in criminal justice in the North Pacific and The Hague. She holds a Bachelor of International Business Relations, Graduate Certificate in Public Sector Leadership and Masters in Criminology and Criminal Justice. She is finalising the Fitzgerald PhD in police investigations.

Post-Provocation Sentencing in Domestic and Non-Domestic Homicides: The Role of Mental Illness and/or Impairment in Defence Narratives

Dr Danielle Tyson1, Professor Rosemary Hunter2
1Deakin University,  Burwood, Australia, 2Queen Mary University of London, London, England

In 2005 the Australian State of Victoria abolished the defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. In a systematic examination of post-provocation judicial sentencing decisions, we found that while elements of victim-blaming and arguments based on provocation certainly remained present in defendants’ pleas in mitigation, they were generally rejected by trial judges. Beyond this, we identified a greater emphasis by defence counsel and some judges on mental illness or disorder as an avenue for offenders to argue for reduced culpability or as mitigation in sentencing. While a small number of judges explicitly rejected these claims, the use of mental illness as an explanatory narrative in these cases requires further analysis. In this paper we present preliminary findings from a study of the role of mental illness and/or impairment in sentencing in cases of domestic and non-domestic homicide. Our analysis suggests that while the 2005 reforms have had some success in challenging the gendered assumptions underpinning provocation’s victim-blaming narratives, it is possible that in the absence of the provocation defence, these assumptions may be redeployed as part of the defendant’s mental health narrative.


Dr Danielle Tyson is Senior Lecturer in Criminology at Deakin University, co-director of the Monash/Deakin Filicide Research Hub and co-facilitator of the Addressing Filicide bi-annual conference series. Her research interests include legal responses to intimate partner homicide, homicide law reform, filicide in the context of separation and gender, justice and sentencing.



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