LLB180 Lecture Notes - Lecture 11: Probation Officer, Prison Officer, Electronic Tagging
Week 11 – Sentencing I – Punishment and Sentencing
Legal Framework:
• Legislation, primarily Crimes (Sentencing Procedure) Act 1999 (NSW)
• Common law
• Judicial discretion
Forms of Punishment
• Imprisonment (including MMS)
• Home detention
• Intensive correction orders (previously periodic detention)
• Suspended sentences
• Good behaviour bonds
• Fines
• Community service
• Licence disqualification
Factors Relevant to Exercise of Discretion
• Maximum penalty for offence
• Jurisdiction of court
• Section 3A purposes of sentencing
• Section 21A aggravating / mitigating factors
• Common law sentencing principles
• Guideline judgments (incl for guilty pleas)
• Standard non-parole periods (SNPP)
• Sentencing statistics
• Sentencing options available
What is Punishment? + Justifications
• Honderich (1984): a authoits iflitio of a pealt o a offede
• Flew (1954): 5 essential criteria:
1. It must involve an evil, an unpleasantness to the victim
2. It must be for an offence, actual or supposed
3. It must be of an offender, actual or supposed
4. It must be the work of personal agencies
5. It must be imposed by authority conferred through or by the
institutions against the rules of which the offence has been
committed
• Benn & Peters (1959): Fles iteia + pai of puishet a essential part of what
is intended and not merely coincidental or accidental outcome
• Garland & Young (1983): penality – a ople field of istitutios, paties ad
elatios athe tha a sigula ad essetial tpe of soial eet
find more resources at oneclass.com
find more resources at oneclass.com
Justifications (CB 129-130)
• Honderich: punishment is deserved by offenders (retribution), punishment serves to
deter others from offending, punishment secures fewer offences will be committed
in the future
• State has a right and duty to punish offender by virtue of their culpability for the
offence
Purposes of Punishment – ALRC on the objectives or purposes of sentencing (CB 131-133)
The puposes of iial puishet ae aious: potetio of soiet, deteee of the
offender and of others who might be tempted to offend, retribution and reform. The
purposes overlap and none of them can be considered in isolation from the others when
deteiig hat is a appopiate setee i a patiula ase.
- Veen (No.2) (1988) 164 CLR 465 at 476 per Brennan, Dawson & Toohey JJ
• Retributive – appropriate moral response to voluntary offending to be imposed
regardless of effects
- Includes: retriution, denuniation just deserts
• Utilitarian – justified because benefits outweigh detriments, has the potential to
reduce crime
- Includes: deterrence, rehabilitation, incapacitation
• Restorative – offenders & victims should participate in process that determines
response to a given crime and harm
- Includes: restorative justice
• ALRC Discussion Paper 70 (CB 131)
Retribution
• Lex talionis – the la of etaliatio: ee fo a ee → oldest, most basic idea
• Offedes oe a det to soiet? Eliiate the ufai adatage D gaied
committing the offence?
• Just desets → the person gets what he deserved, according to culpability and
gravity of the offence → increasingly punitive in recent political environment?
• 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
• It is not a dominant approach in Australia
find more resources at oneclass.com
find more resources at oneclass.com
Deterrence
This is the utilitarian perspective: punishment is used as an instrument to deter others from
committing more crimes.
General Deterrence
• 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)
• Offenders as a class are rationale decision-makers who will desist from crime if the
consequences are perceived to be sufficiently severe
• BUT should one person be punished by reference to the hypothetical offending of
another?
• Do offenders engage in rational analysis before offending?
Specific Deterrence
• 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
• Individuals deterred from recidivism through the adverse consequences arising from
their actions
• Increasingly severe sentences where re-offending indicates that previous sentences
have failed to deter
• BUT evaluation studies indicate numerous factors contribute to the decision to
commit crime and some are not necessarily amenable to deterrence through
sentencing
• Difficult to note the effectiveness given the numerous factors that contribute to the
decision whether or not to offend, e.g. age, socio-economic status, gender,
education
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 11 sentencing i punishment and sentencing. Legal framework: legislation, primarily crimes (sentencing procedure) act 1999 (nsw, common law. Imprisonment (including mms: home detention, suspended sentences, good behaviour bonds, fines, community service, licence disqualification. Jurisdiction of court: maximum penalty for offence, section 3a purposes of sentencing, section 21a aggravating / mitigating factors, common law sentencing principles, guideline judgments (incl for guilty pleas, standard non-parole periods (snpp, sentencing statistics, sentencing options available. The purposes overlap and none of them can be considered in isolation from the others when dete(cid:396)(cid:373)i(cid:374)i(cid:374)g (cid:449)hat is a(cid:374) app(cid:396)op(cid:396)iate se(cid:374)te(cid:374)(cid:272)e i(cid:374) a pa(cid:396)ti(cid:272)ula(cid:396) (cid:272)ase. (cid:863) Veen (no. 2) (1988) 164 clr 465 at 476 per brennan, dawson & toohey jj: retributive appropriate moral response to voluntary offending to be imposed regardless of effects. Includes: retri(cid:271)ution, denun(cid:272)iation (cid:894)(cid:862)just deserts(cid:863)(cid:895: utilitarian justified because benefits outweigh detriments, has the potential to reduce crime.
