Criminal Law and Procedure Week 11

1. Criminal Law and ProcedureWeek 11 Sentencing: Justifications for punishment

2. 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;

3. Objectives (cont) • Understand and be able to apply the sentencing options available to the sentencing court, including the recording of a conviction; and • Understand 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.

4. Lecture summary (weeks 11-13) • Week 1: • Introduction to sentencing • Justifications for punishment • Week 2: The sentencing process • Week 3: • Sentencing dispositions • Related topics

5. References • Prescribed legislation: Penalties and Sentences Act 1992 (Qld) Either: • Reprint number 6 (in force 7 April 2000) • Copy in Carter’s 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

6. 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

7. Further references • White, R, and Haines, F, Crime and Criminology, An Introduction, Melbourne: Oxford University Press, 1996 • Robertson, 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

8. 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 labour • Detention in an industrial or reformatory school; • Solitary confinement; • Whipping; • Fine; • Security to keep the peace and be of good behaviour.

9. Penalties and Sentences Act1992 (Qld) • Came into operation late 1992 • Purposes of the Act s 3 • Previously sentencing governed by common law principles and some legislation re penalties • cf Sentencing Act 1991 (Vic) - Qld Act very similar - lengthy investigation into sentencing by Victorian Sentencing Committee • Also ALRC 44 - Sentencing.

10. Penalties and Sentences Act 1992 (Qld): Preamble Whereas – • 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.

11. Penalties and Sentences Act 1992 (Qld): s 3 Purposes 3. 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

12. 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.

13. The purpose for sentencing • Sentencing 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)

14. Effect of sentencing on crime • 1980’s 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 police • 320 are recorded as crimes • 64 are detected • 43 result in convictions • 1 person is jailed Source: 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.

15. Justifications for punishment • Criminology • theories of punishment • modern trends • purposes for punishment as expressed in Qld Penalties and Sentences Act

16. What is criminology? • Criminology is a discrete disciple; informs the study of criminal law and sentencing • Criminology focuses on 3 main areas: • the sociology of law, which examines social aspects and the institutions of the law • theories of crime causation • the 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 Criminology • “Criminology” does not mean sentencing

17. Other modern theories • Marxist criminology • crime is an outcome and reflection of the class struggle - power and inequality • Feminist criminology • Also looks at issues of power and inequality in the law; sexist nature of criminal justice system.

18. Why do we punish? • Depends on society’s definition, given effect by Parliament • Factors are many, but include: • historical perspectives • social and cultural differences • religious beliefs • Eg, 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?

19. 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 Haines • Early thinking indicated spiritual causes, eg witchcraft. • The Enlightenment (18th • The Classical school - Cesare Beccaria 1764 - An Essay on Crimes and Punishments • Individuals pass right to punish to the state • Basis for all social actions must be the greatest good for the greatest number

20. Classicism cont. • Utilitarianism and Jeremy Bentham • further developed classical theory • behaviour = seek pleasure and avoid pain • social contract • crime a free choice • Leads to modern theories of deterrence and rehabilitation

21. Studies of the causes of crime (cont) • The Age of Empiricism and the scientific age • The Positivists • crime largely determined by individual’s 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

22. Who is the criminal?

23. Traditional justifications for punishment • Retribution • Deterrence • general • special or individual • Rehabilitation • Also: • Protection • Reformation

24. Current trends • Decline of rehabilitation in 1970’s • “Just deserts” theory currently popular - sentencing literature - new form of retribution • Punished according • Punishment to be proportional to the gravity of the offence, and culpability of the criminal • Move to “codification” of sentencing law in nearly all Australian jurisdictions - moves to regulate sentencing and structure judicial discretion in sentencing

25. Purposes for punishment: Section 9(1) PSA The 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; or retribution/just deserts? (b) to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or rehabilitation

26. 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; or denunciation (e) to protect the community from the offender; or protection (f) a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).

27. Current context for sentencing • Law and order campaigns - politicisation • Increase (or perceptions) in crimes of violence • Home invasions/service station robberies • Perceived targeting of certain groups by offenders, eg the elderly • Increase in fear in the community

28. Current issues in sentencing • Mandatory sentencing as a response to law and order politics • NT: property offences - 14 days jail first offence - 90 days - 12 months - even if trivial (also mandatory detention for juveniles) • WA: “three strikes and you’re in” • Use 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)