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17 All sentencing legislation in Australia outlines the purposes that may be considered when imposing a sentence. The main purposes are: Punishment - usually means imposing a sentence that inflicts some kind of pain or loss on the offender. Rehabilitation - means imposing a sentence that will help to change the offender's behaviour into that of a responsible citizen. Specific deterrence - means discouraging the particular offender from committing more crimes. General deterrence - refers to the idea that potential offenders in the community will be discouraged from committing a particular crime when they see the penalty imposed for that kind of offence. Denunciation - is a formal public expression that the behaviour is unacceptable to the community. Community Protection - means both protecting the community from the offender and from crime generally. Restorative justice - means promoting the restoration of relations between the community, the offender and the victim.Brisbane Magistrates Court. Image: Qld Magistrates Court The purposes of sentencing 18 Often the purposes of sentencing overlap, and it is very rare for a sentence to be imposed for only one purpose. For example, a prison sentence could be imposed for "specific" and "general" deterrence, as well as for rehabilitative purposes. The court might think that the convicted person should receive psychiatric treatment or be placed in a drug or alcohol management program while in prison. Of course, a prison sentence might simply be imposed to punish the offender by depriving him or her of freedom for a period. Different crimes The purposes of sentencing may differ for different crimes, depending on their seriousness. For crimes like murder or armed robbery, the major purposes are likely to be punishment and general deterrence. For less serious crimes such as graffiti or malicious damage, the judicial officer might view rehabilitation as the major consideration when imposing the sentence. Different offenders If the offender is a young person, the judicial officer might see it it as more desirable to attempt to rehabilitate the offender, rather than punish him or her. On the other hand, an older offender with a long list of prior convictions might be considered suitable for a punitive or community protection sentence. Different purposes – similar result A young offender might be sentenced to a juvenile detention centre by one judicial officer for deterrent purposes, while another might do the same in the hope of rehabilitating the offender. Balancing the reasons for a sentence Statue at the Supreme Court building,Melbourne. Image: Vic.Dept of Justice 19 District Court with jury - Western Australia. Image: WA District Court 20 Sentencing legislation specifies the matters that courts must take into account when passing sentence. These include: The nature and circumstances of the offence Offences vary greatly in the way they are committed. Some crimes are planned, others occur on the spur of the moment; some cause great harm to the victim, others very little; some are committed alone, others by gangs. The degree of criminality The number of offences and their seriousness are relevant to the degree of criminality. The victim’s circumstances Some victims may be young or very old, or more vulnerable to crime because they are physically or mentally incapacitated or for other reasons. Such factors may warrant a more severe sentence. Any injury, loss or damage A judicial officer must weigh up the degree of loss or the extent of injury to the victim in order to determine how serious the particular is to be regarded. Any mitigating factors These could include whether the offender has shown contrition for the offence; whether he or she has pleaded guilty; whether the offender has attempted any form of restitution; and the extent to which the offender has co-operated with law enforcement agencies investigating the particular offence or other offences. Continued next page:Minimum securuty inmates doing forestry work. Image: NSWDC What sentencing laws require 21 The offender’s personal circumstances The character, previous behaviour (including any criminal record), cultural background, age, means and physical or mental condition of the offender are also likely to be considered. An older offender with many prior convictions who has failed to respond to previous court orders will generally be treated more severely than a young first time offender who, if given a chance, might turn away from a criminal career. The offender’s family or dependants The judicial officer may consider the effect that any sentence might have on the offender's family or dependants. However only in cases of exceptional hardship does the court take into account the effect of imprisonment on an offender’s family. Court cells, Adelaide. Image: Ben Searcy Photography As a general rule, a judicial officer should not impose a sentence that is more severe than is necessary to achieve the purpose for which the sentence is imposed. If being ordered to do work in the community rather than being imprisoned can adequately punish an offender, then the judicial officer should require the offender to perform community service. Avoiding unnecessary punishment 22 The sentencing options Imprisonment is the most severe sentence available to the courts in Australia, as capital punishment has long been abolished. Prisons are classified as high, medium or low security, but a judge cannot direct the prison authorities where to hold a person sentenced to imprisonment. Most longer sentences of imprisonment will include a period of parole. Conditions of release on parole include supervision. Offenders can be returned to prison if they breach the conditions of their release. These orders may require an offender to perform unpaid work in the community, attend educational or rehabilitative programs, be super- vised by a correctional officer or undergo assessment or treatment. Home detention requires an offender to remain in his or her house for a certain period of time.The person may be allowed outside the house at times during the day or at times in the week, and may be subject to supervision and electronic monitoring. Home detention may also be a condition of bail, or a condition of release from prison on parole. A fine can be imposed as an alternative or addition to a prison or community sentence. Judicial officers take into account the financial circumstances of an offender when imposing a fine. Courts are aware that a fine of $1,000 may be less punitive to a wealthy person than a fine of $100 would be to a person on a low income.Furniture workshop, maximum security. Image: NSWDC Imprisonment Community based sanctions Home detention A fine 23 Putting it all together The judicial officer's task is to determine the appropriate sentence after taking into account all the relevant circumstances. The sentence may not fully satisfy anyone – the victim, the offender or the public – but that does not necessarily mean there is anything wrong with it. On the contrary, it may well indicate that the judicial officer has appropriately balanced all the competing considerations (see Purposes of sentencing - page 17). If the offender or the prosecution thinks a judicial officer has made a mistake in sentencing – for instance if they believe a sentence is too harsh or too lenient – they can appeal to a higher court. Sometimes sentencing appeals go all the way to the High Court in Canberra. Usually, an appeal court cannot just substitute its own opinion on what is an appropriate sentence. It can only change the sentence if it believes the lower court has made a legal mistake in exercising its discretion. Although many cases go through the courts each year, relatively few cases are appealed. For example, in New South Wales in 2005, 120,565 persons were found guilty in the Local Courts. There was an appeal against the severity of sentence in 4.2% of cases, and against the inadequacy of sentence in only 0.03% of cases. Image: Vic.Dept. of Justice Appeals The fact that a criminal case is newsworthy does not mean that most people consider the sentence imposed on the offender to be inappropriate. But media interest in a trial often leads to the sentence receiving very close public scrutiny. The media may be interested in a criminal case for many reasons. The alleged offender may be very well known, as with high profile business people involved in corporate failures or sporting identities who fall foul of the law. The circumstances of the offence may be particularly horrifying or disturbing, as with gruesome murders, "gang" rapes or sexual abuse of children. Sometimes ordinary things we do – like driving cars – produce tragic consequences that can attract widespread attention. Newsworthiness LLeefftt:: Barrister John Doris is surrounded by media during a high profile murder trial at Sydney District Court. Photo Adam McLean - courtesy:The Age 24 25 Common criticisms of sentencing Criticisms are frequently made of particular sentences and of the sentencing process generally. Usually the critics argue that sentences are too lenient and that judicial officers are "out of touch" with community opinion. The cases that attract this kind of criticism tend to involve particularly brutal conduct by the offender, particularly tragic consequences for innocent victims, or both. Because the media concentrates on the more sensational cases, most people have very little information about the much more typical cases that are dealt with by the courts. Of the more than 740,000 sentences imposed by Australian courts each year, the vast majority follow a standard pattern for the particu- lar offence. More than 95% of these cases are dealt with in the Magistrates or Local Courts. These decisions are usually unreported and uncontro- versial and generate little or no public debate. For the most part, prosecutors, victims and offenders accept the out- comes as reasonable and do not appeal. Because these cases form the majority of sentencing decisions in Australia, it is fair to say that the system is working effectively and consistently.Victorian Chief Justice Marilyn Warren (pictured above) said in a paper in April 2005: “Of the thousands of cases dealt with in higher courts each year, most appeals against sentence complain that they are too severe. “Those cases are rarely reported in the media. It is not surprising, therefore, that the public may gain a distorted impression of sen- tencing practices in Victoria”. Defence appeals against sentence severity 1,314 Appeals against inadequacy of sentence 269 Appeals against sentencing NSW 1996 - 2000 You be the Judge Years 9 and 10 Case Study: Durg Trafficking You be the Judge Years 9 and 10 case study Trafficking in a drug of dependence About these notes You be the Judge is a package of teaching materials on sentencing in Victoria. It covers sentencing theory and practice using case studies based on real cases (names and some details have been changed). Working individually and in groups, students investigate and discuss aspects of sentencing, including their own and community values, and then decide on a fair sentence in the case. Finally, students compare their sentences to that imposed by the court in the real-life case. Teachers should read these PowerPoint slides and notes in conjunction with: