Criminal Law and ProcedureWeek 11Sentencing: Justifications for punishment

Objectives of sentencing lectures (weeks 11-13)Understand by way of overview the history of criminological thought and the theories of punishment;Understand the purposes for which sentences may be imposed in Queensland;Be aware of practice and procedures in the sentencing process;Understand, and be able to apply the legal principles on the right to appeal by offender and Attorney-General, and the differences therein;

Objectives (cont)Understand and be able to apply the sentencing options available to the sentencing court, including the recording of a conviction; andUnderstand the factors which are relevant to the sentencing process, and which may be taken into account on sentence, and be able to apply these to new fact situations;Be aware of ancillary matters such as sentencing of juveniles, criminal compensation, confiscation of the profits of crime.

Lecture summary (weeks 11-13)Week 1:Introduction to sentencing Justifications for punishment Week 2: The sentencing processWeek 3: Sentencing dispositionsRelated topics

ReferencesPrescribed legislation: Penalties and Sentences Act 1992 (Qld) Either: Reprint number 6 (in force 7 April 2000) Copy in Carters 11th edition (but note it is not fully up to date, but is substantially so) Up to date annotated copy in Mackenzie, G, Summary Offences Law and Practice Qld

References (cont)Kenny, G, An Introduction to Criminal Law in Queensland and Western Australia, chapter 3 (Appeals against sentence)Hazlehurst, K, (ed) Crime and Justice, An Australian Textbook in Criminology, Sydney: LBC Information Services, 1996

Further references

White, R, and Haines, F, Crime and Criminology, An Introduction, Melbourne: Oxford University Press, 1996Robertson, J and Mackenzie, G, Queensland Sentencing Manual, 1995. (Looseleaf work mainly for practitioners)Note elective available: Principles of Sentencing LWB 494 (semester 1 2001) - detailed look at sentencing principles in Queensland - emphasis on practical application

Section 18 Criminal Code (original 1899 version)Our sentencing options heavily influenced by 19th century Britain (and still are)Death;Imprisonment with hard labour;Imprisonment without hard labourDetention in an industrial or reformatory school;Solitary confinement;Whipping;Fine;Security to keep the peace and be of good behaviour.

Penalties and Sentences Act 1992 (Qld)Came into operation late 1992Purposes of the Act s 3Previously sentencing governed by common law principles and some legislation re penaltiescf Sentencing Act 1991 (Vic) - Qld Act very similar - lengthy investigation into sentencing by Victorian Sentencing CommitteeAlso ALRC 44 - Sentencing.

Penalties and Sentences Act 1992 (Qld): PreambleWhereas Society is entitled to protect itself and its members from harm.The criminal law and the power of courts to impose sentences on offenders represent important ways in which society protects itself and its members from harm.Society may limit the liberty of members of society only to prevent harm to itself or other members of society.

Penalties and Sentences Act 1992 (Qld): s 3Purposes3. The purposes of this Act include (a) collecting into a single Act general powers of courts to sentence offenders; and(b) providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration; and(c)promoting consistency of approach in the sentencing of offenders; and

Section 3 (cont)(d) providing fair procedures -(i) for imposing sentences; and(ii) for dealing with offenders who contravene the conditions of their sentence; and(e) providing sentencing principles that are to be applied by the courts; and(f) making provision so that offenders are not imprisoned for non-payment of fines without the opportunity of obtaining a fine option order; and(g) promoting public understanding of sentencing practices and procedure; and(h)generally reforming the sentencing laws of Queensland.

The purpose for sentencingSentencing defined by ALRC in 1988:Sentencing is the process of selecting the type and amount of punishment to impose for a particular breach of the law. (ALRC Report 44, 12) Cf crime prevention: It is the criminal justice system, taken as a whole, with all its components, which deters crime. While punishment is a significant part of the way the criminal justice system deters, it is inaccurate and imprecise to speak of punishment, or any other component of the criminal justice system, as alone deterring crime.(ALRC Report 44, 13)

Effect of sentencing on crime1980s study estimated that doubling the imprisonment rate would affect 0.1% of total crime.For each 1000 crimes [calculated from victim surveys] committed: 400 are reported to police320 are recorded as crimes64 are detected43 result in convictions1 person is jailedSource: Study by Mukherjee et al, 1987 for Australian Institute of Criminology, cited in R Hogg & D Brown, Rethinking Law and Order Pluto Press, NSW 1998.

Justifications for punishmentCriminologytheories of punishmentmodern trendspurposes for punishment as expressed in Qld Penalties and Sentences Act

What is criminology?Criminology is a discrete disciple; informs the study of criminal law and sentencingCriminology focuses on 3 main areas:the sociology of law, which examines social aspects and the institutions of the lawtheories of crime causationthe study of social responses to crime, which examines in more depth the formal institutions of criminal justice eg, police, courts and corrections.White and Haines, An Introduction to Crime and CriminologyCriminology does not mean sentencing

Other modern theoriesMarxist criminologycrime is an outcome and reflection of the class struggle - power and inequalityFeminist criminologyAlso looks at issues of power and inequality in the law; sexist nature of criminal justice system.

Why do we punish?Depends on societys definition, given effect by ParliamentFactors are many, but include:historical perspectivessocial and cultural differencesreligious beliefsEg, emphasis on property offences in British law, whereas this is foreign to indigenous Australians who have a shared concept of property.What should be the main reason for punishment?

Studies of the causes of crime(See generally chapter by Mason in Hazlehurst, Crime and Justice, An Australian Textbook in Criminology) , and Williams, K, Textbook on Criminology , and White and HainesEarly thinking indicated spiritual causes, eg witchcraft.The Enlightenment (18thThe Classical school - Cesare Beccaria1764 - An Essay on Crimes and PunishmentsIndividuals pass right to punish to the stateBasis for all social actions must be the greatest good for the greatest number

Classicism cont.Utilitarianism and Jeremy Benthamfurther developed classical theorybehaviour = seek pleasure and avoid painsocial contractcrime a free choiceLeads to modern theories of deterrence and rehabilitation

Studies of the causes of crime (cont)The Age of Empiricism and the scientific ageThe Positivists crime largely determined by individuals biological, cultural, psychological or psychiatric antecedents: cf free will as operative policy (Classicists)Cesare Lombroso ( 1835 - 1909) - the father of modern criminology - physical characteristics of a criminal

Who is the criminal?

Traditional justifications for punishmentRetribution Deterrencegeneralspecial or individualRehabilitationAlso:ProtectionReformation

Current trendsDecline of rehabilitation in 1970sJust deserts theory currently popular - sentencing literature - new form of retributionPunished according Punishment to be proportional to the gravity of the offence, and culpability of the criminalMove to codification of sentencing law in nearly all Australian jurisdictions - moves to regulate sentencing and structure judicial discretion in sentencing

Purposes for punishment: Section 9(1) PSAThe only purposes for which sentences may be imposed on an offender are-(a) to punish the offender to an extent or in a way that is just in all the circumstances; orretribution/just deserts?(b) to provide conditions in the courts order that the court considers will help the offender to be rehabilitated; orrehabilitation

Section 9(1) cont.(c) to discourage the offender or other persons from committing the same or a similar offence; or special and general deterrence(d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; ordenunciation(e) to protect the community from the offender; orprotection(f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

Current context for sentencingLaw and order campaigns - politicisationIncrease (or perceptions) in crimes of violence Home invasions/service station robberiesPerceived targeting of certain groups by offenders, eg the elderlyIncrease in fear in the community

Current issues in sentencingMandatory sentencing as a response to law and order politicsNT: property offences - 14 days jail first offence - 90 days - 12 months - even if trivial (also mandatory detention for juveniles)WA: three strikes and youre inUse of harsher penalties as a deterrent (but are they effective?)Use of sentencing grids in many US jurisdictions (ie, cannot take into account mitigating circumstances)parole and remissions (new Corrective Services Bill currently before Parliament)