Introduction to Sentencing

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 1075-76; 1080-84.

Introduction

[1] There are many factors and theories influencing the sentence and punishment which an offender should receive.

  • A notable trend in criminal sentencing has also been the rise of the victim, where concern that individual victims are not being heard has led to a Charter of Victim’s Rights in NSW.
  • However, there are still many problems with involving individual victims.

There is also an ongoing power struggle concerning judicial discretion in sentencing, between the judiciary and the legislature.

Objectives and Purposes of Sentencing

ALRC

[2] There are two main theories for punishments: the utilitarian theory, which says that punishment is justified because it has a material benefit in preventing further crime, and the retributive theory, which simply says that punishment is a justified moral response to a crime. These can be broken down into more specific idea behind punishment and sentencing:

  • Retribution:
    • Those who engage in criminal activity deserve to suffer for it. Retribution does not concern itself with rehabilitation, or whether the punishment has a positive effect on crime etc.
    • This is the oldest, most basic idea of punishment - an eye for an eye.
    • It is not a dominant approach in Australia.
    • In the US, they have a ‘just deserts’ idea (the person gets what he deserved, according to culpability and gravity of the offence) which is a theory based on retribution.
  • Deterrence:
    • This is the utilitarian perspective: punishment is used as an instrument to deter others from committing more crimes.
    • There are two types of approaching deterrence:
      • General deterrence is the general idea of giving a big punishment for an offence so the public in general will be deterred from committing it. It is more about the offence than individual persons (ie, murder has a big sentence to deter the whole population from committing murder).
        • Opponents of this theory claim that that it is unfair to give harsher punishment (making it disproportionate to the crime) just to deter people the criminal has not met at all, and that many crimes happen in the spur of the moment (without a chance for rational thought) and therefore the general deterrence would have no impact on them. Also little impact of offences of habit (drugs etc).
      • Specific deterrence is the idea that the punishment is specifically tailored to the actual offender in this particular case - the court considers what punishment is necessary to prevent this person from committing a crime again.
        • In some cases, the court may conclude that this person is so remorseful and of such good character that he does not need a harsh punishment in order to deter him from committing further crimes.
  • Rehabilitation:
    • Programs altering an offender’s personality and attitudes etc in order to restore him or her as a law-abiding member of society.
    • Makes use of corrective services for incarcerated offenders, provides education, work programs, sexual assault programs, anger management programs etc.
    • The aim is to give offenders some useful skills when they finish their imprisonment term.
  • Incapacitation:
    • The imposition of some form of restraint on an offender in order to render them incapable of re-offending (eg, prisons, restraining order, house arrest, even suspension of driver's license).
    • Opponents of this theory argue that it is relatively short term and very costly ($60 000 per prisoner per year). Also, the majority of the prisoners are in for minor offences and thus have short sentences, which means that it is ineffective.
    • Proponents of the theory argue that it provides protection to society from people that are seriously dangerous.
  • Denunciation:
    • The Court communicates a message to the offender and the community that the law is not to be flouted.
  • Restoration:
    • This theory focuses on repairing the harm caused by criminal activity by addressing the underlying causes of criminal behaviour.
    • It encourages offenders to accept responsibility and help repair the damage to the social fabric that has been caused by their conduct.
    • Examples include victim-offender mediation, conferencing and circle sentencing.
    • Initially applied to young offenders, but increasingly being made available to adult offenders.
    • Opponents claim that there are situations in which this approach cannot be applied – particularly more serious offences (eg, murder, serious assaults). Most sexual assault victims would not wish to see the offender again, and certainly would not wish to sit and discuss with an offender for the latter’s benefit.

NSW Legislation

[3] The purposes of sentencing in NSW legislation are derived from Veen (No 2)[4] and found in s 3A of the Crimes (Sentencing Procedure) Act 1999:

The purposes for which a court may impose a sentence on an offender are as follows: 
 (a) to ensure that the offender is adequately punished for the offence, 
 (b) to prevent crime by deterring the offender and other persons from committing similar offences, 
 (c) to protect the community from the offender, 
 (d) to promote the rehabilitation of the offender, 
 (e) to make the offender accountable for his or her actions, 
 (f) to denounce the conduct of the offender, 
 (g) to recognise the harm done to the victim of the crime and the community. 

The order has no significance and they are all equal considerations.

  • s 3A (g) arguably changes the common law position established by Previtera[5] - that the victim impact statements would not be taken into account in sentencing due to potential to cast certain human lives as more important than others. However, the NSWCCA has continued to apply Previtera in favour of s 3A (g).
  • Note that restoration is not a listed purpose – the ALRC believes that it should be.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 1075-76.
  2. ALRC, Sentencing of Federal Offenders, Discussion Paper 70 (November 2005) in Textbook, pp. 1080-2.
  3. Textbook, pp. 1082-4.
  4. 1988) 164 CLR 465.
  5. (1997) 94 A Crim R 76.
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