LLB180 Chapter Notes - Chapter 2; 14: 18 Months, Indictable Offence, Adequate Equivalence Relation
SENTENCING:
Chapter 2.6 – Justifications for Punishment, Imprisonment Rates and Penalty:
2.6.1 – Justifications for Punishment:
oA Flew, ‘The Justification of Punishment’ (1954) identified 5 essential criteria for
punishment:
Must involve an evil, or unpleasantness to the victim
Must be for an offence, actual or supposed
Must be an offender, actual or supposed
Must be the work of personal agencies
Must be imposed by authority conferred through or by the institutions against the
rules of which the offence was committed
oSI Benn and RS Peters, ‘Social Principles and Democratic State’ (1959) added a 6th
Pain or unpleasantness caused should be an essential element of what is intended, and
not merely coincidental
oRetribution, deterrence and rehabilitation – three main theories
Retributivism – backward looking
Punishment is the only aim
Deterrence and rehabilitation – forward looking
Utilitarian
oIncapacitation and repartition/restitution – other theories
Incapacitation – forward looking
Utilitarian
oN Lacey, State Punishment (1988):
Justified simply by means of making criminal law real
‘It has collectively to do with a collective need to underpin, recognise and maintain the
internalised commitments of many members of society to the content of the standards
of the criminal law and to acknowledge the importance of those commitments to the
existence and identity of the community.’
‘Beginning with the most general factors, it seems likely that inflictions and threats of
punishment, although not occasions for celebration, could in this context have
beneficial side-effects in terms of restoring social cohesion which may be threatened
or disturbed by certain sorts of offending which present clear threats to fundamental
social values, and in reaffirming the social values endorsed by the political process and
entrenched in the criminal law.’
Also, may have educative functions
‘Related to social protection, but also closely linked to the need to demonstrate that
the norms of the criminal law are ‘for real’…’
Conception of punishment as a social practice
Conservative and dynamic aspects
Represented by retributive and utilitarian traditions
Punishment is both forward and backward looking
oD Garland, ‘Philosophical Argument and Ideological Effect: An Essay Review’ (1983):
‘First of all, and most fundamentally, to assume that general moral philosophy is the
most appropriate means of evaluating penal practice entails a conception of penality
as a moral object.’
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‘Secondly, in presenting the central question as one concerning the right to punish, the
philosophical mode of analysis marginalises the crucial and substantive issue of actual
means used to exercise that “right.” The specific sanctions, apparatuses, techniques,
and practices of penality disappear from the analysis in favour of an abstract and
general discussion of “justice” and its requirements.’
‘General arguments pitched at the level of abstract moral philosophies afford no
adequate means to evaluate current penal practices, nor can they provide an adequate
grounding or foundation upon which to prescribe future practices. … Adequate
analyses of penality, and certainty those which aspire to practical intervention in this
realm, require more than traditional moral philosophy; they necessitate detailed social
and political analysis.’
2.6.2 – ‘Purposes of Sentencing’ in NSW Sentencing Legislation:
oCrimes (Sentencing Procedure) Act 1999 – Section 3A:
Ensure the offender is adequately punished
Prevent the crime by deterring the offender and other persons
Protecting the community from the offender
Promoting the rehabilitation of the offender
Making the offender accountable for their actions
Denounce the conduct of the offender
Recognise the harm done to the victim and the community
2.6.3 – The Australian Law Reform Commission on the Objectives or Purposes of Sentencing:
oALRC, Sentencing of Federal Offenders (2005):
Largely dominated by two theories
Utilitarian theory – punishment is just because the benefits outweigh the negative
Retributive theory – punishment is the appropriate moral response to the voluntary
commission of an offence
Retribution:
‘law of retaliation’ – ‘eye for an eye’
Just deserts theory – offenders deserve to be punished
May have led to an increased severity in sentences
Deterrence:
Existence of criminal justice system has a deterring effect – ‘absolute deterrence’
Severity of penalties also deters – ‘marginal deterrence’
General deterrence:
oAssumes offenders are rational beings that are less likely to offend if the
penalty is severe
oALRC objects – unfair to punish one for the deterrence effect
oAustralian courts are fond of general deterrence
Specific deterrence:
oAims to prevent the offender from reoffending by demonstrating the
consequences
oMay be less important in certain circumstances (low likelihood of
reoffending)
Rehabilitation:
Assumes that offenders commit crimes due to a psychiatric, psychological or social
factor
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Involves altering someone’s attitude, habits, beliefs, skills or outlook to make
them a functioning member of society
Currently accepted that rehabilitation is sometimes (not always) possible
Incapacitation:
Aims to impose a restraint to render the offender incapable of reoffending
Collective incapacitation:
oStrategy for reducing crime by incapacitating more offenders or
incapacitating them for longer
oVery limited effect on crime
Selective incapacitation:
oAttempting to identify and incapacitate certain individuals
oLegislation in most states allows for this
NSW – ‘habitual criminals’
ALRC concluded incapacitation is not a legitimate purpose of sentencing because it
is imposed for future conduct
Denunciation:
Communicate to offender and community that the crime is not okay
‘informed public opinion’ is to be considered
Cannot lead to a decision that’s contrary to law
Restoration:
No universally accepted definition
Those who commit crimes should be given a real opportunity to participate in the
process by which the response to the crime is decided
Increases satisfaction in the justice system; encourages offenders to accept
responsibility; reduce recidivism; provide insight to the causes
Chapter 14 – Sentencing:
Chapter 14.1 – Introduction:
Become an increasingly complex legal process in the last few decades
Rise of victim concerns in sentencing
‘just deserts’ – foremost justification for punishment in the last 30 years
oProportionality – punishment should be proportionate to the gravity of the offence
and culpability of the offender
Emphasis of reintegration has broadened out in a variety of programs and schemes of
mediation, conferencing, reparation, sentencing circles and other developments of
restorative justice
Some developments shift from notions of dangerouness to that of risk
Chapter 14.2 – Developments in Sentencing: Just Deserts, Restorative Justice, Victim Participation:
14.2.1 – ‘Just Deserts’: Rise of the new Retributivism:
oDeveloped in the 1970s by American writers
oUnderpinned developments such as minimum sentences and development of
sentencing matrices and the abolition of parole and remissions in certain States
o‘all penalties must be commensurate in severity with the seriousness of the offence’
oRose as widespread disillusionment with the rehabilitative ideal
oHudson – main propositions of the justice model:
Proportionality of punishment to crime
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