3.1 A number of underlying purposes and principles informing sentencing law are identified in case law and statute. Most have been developed in the context of the use of imprisonment as a sentencing option, in addressing the two issues of whether or not the offender should be sent to prison, and, if so, what the appropriate length of the sentence should be. The reason why sentencing principles have developed almost exclusively in relation to the use of imprisonment is attributable to the seriousness of a sentence of imprisonment and the fact that the vast majority of sentencing appeals involve appeals against the length of a term of imprisonment. However, the purposes and principles of sentencing apply to all forms of punishment that sentencers may impose. It is, therefore, appropriate to address these purposes and principles at the beginning of any review of sentencing law. Their application in the context of imprisonment is discussed in Chapter 5.
THE RATIONALE OF PUNISHMENT
3.2 The objectives and aims of punishment are traditionally stated as retribution, deterrence, rehabilitation and incapacitation. The Commission agrees with Sir John Barry that this classification is something of an oversimplification, since:1
[i]t ignores or leaves inarticulate, for example, other purposes which the criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.
With this in mind, the Commission would add “denunciation” to the list of objectives of punishment.2 We would not, however, add reparation.3
Retribution
3.3 Retribution is the notion that the guilty ought to suffer the punishment which they deserve. As such, it is an important aim of sentencing.4 As a philosophical basis for punishment, retribution has, in the past two decades, experienced a revival among punishment theorists (particularly in the United States), and re-emerged in the concept of “just deserts”.5 This revival was largely brought about by a growing disillusionment with the emphasis on rehabilitation as an objective of contemporary penal systems, together with the indeterminate nature of sentences caused by systems of conditional release in the United States.
3.4 Just deserts regards punishment as a due consequence of criminal activity. In this sense, it adds nothing to the concept of retribution and merely begs the question of what is “just”. Just deserts has, however, become associated with a particular view of sentencing which has emerged in some United States jurisdictions. With the objective of avoiding the perceived injustices of sentence disparity,6 that view seeks to confine wide sentencing discretion. It does so by focusing on the objective gravity of offences, largely excluding reference to the individual circumstances of offenders and their prospects of rehabilitation. This leads to the development of scales ordering the seriousness of offences and their relationship to particular penalties.7 Sentences are then imposed in accordance with the scales.
3.5 The “just deserts” sentencing regimes of some American jurisdictions are inapplicable in New South Wales (and Australia generally), where sentences in any case continue to reflect all the circumstances of the offence and of the offender.8 It is true that “just deserts” appears to have been accepted as the overriding sentencing objective in a number of Australian and overseas inquiries into sentencing.9 Significantly, these inquiries embraced the just deserts philosophy without any suggestion that factors relevant to the offender should not continue to temper the sentence in any case,10 and without any preoccupation with the more severe restrictions upon sentencing discretion which have occurred in some US jurisdictions.11 In the Commission’s view, this version of just deserts is merely a reflection of the common law principle of proportionality which places limits, in terms of the gravity of the offence in issue, on the severity of the punishment.12 It is in this sense that legislation in a number of Australian jurisdictions appears to accept just deserts as one of the governing purposes of punishment,13 or, indeed, the primary principle of punishment.14
Deterrence
3.6 There are two kinds of deterrence: first, specific deterrence, which aims to dissuade the offender from committing further crime; and secondly, general deterrence, which aims to dissuade others, who have been made aware of the punishment inflicted upon the offender, from committing crime. One of the main purposes of punishment is the protection of the community from crime by making it clear to the offender and others that they will be appropriately punished if they behave in like fashion. Punishment does not prevent the commission of all similar crimes,15 but it is accepted, though probably incapable of demonstration, that it prevents many crimes (for example, those involving foresight or planning as opposed to those committed impulsively) that would have occurred if no, or only light, punishment were to result.16 In DPP (Cth) v El Karhani, a case involving the importation of a traffickable quantity of heroin by an elderly man from Lebanon, who was funded and instructed by an apparently unknown person, the Court of Criminal Appeal said:
[The trial judge] observed in this case that it was most unlikely that this elderly, frail and sick man would ever be tempted to offend again. But that leaves another audience to be addressed .... It is those in Lebanon, or elsewhere outside Australia, who might be tempted to organise or commit this type of offence. To them it is necessary to send the message of general deterrence. To the extent that his Honour felt unable to consider that matter, when he should have, the exercise of his sentencing discretion miscarried.17
3.7 Deterrence is listed as one of the objects of punishment in some recent legislative enactments in Australia.18 For example, the Crimes Act 1900 (ACT) provides that “the deterrent effect that any sentence or order ... may have on any person” is a matter to which the court shall have regard.19 That Act also provides that the severity of any sentence cannot be increased because of the prevalence of the offence.20 Thus, while the need to deter offenders is accepted as a legitimate objective of the sentencing regime, severely deterrent sentences are not to be justified by the level of occurrence of a particular offence.
3.8 The crucial justification for deterrence is the functional one of preventing future crime. But this justification has been questioned on four principal grounds:21
- First, there is doubt about the extent to which, empirically, punishment actually prevents the commission of future offences.
- Secondly, assuming that punishment does deter, it is argued that it is the threat of detection and resulting punishment (in some form), rather than the level of punishment, which deters the offender. If so, then it follows that a positive deterrent response (for example, by setting higher penalties) achieves little or nothing in terms of the incidence of crime.
- Thirdly, accounting for deterrence, particularly general deterrence, in setting punishment can be seen as unjustly punishing the offender for what others might do, as opposed to what the offender has in fact done (“scapegoating”).
- Fourthly, there is considerable doubt as to the efficacy of the communication of the penalties to the wider audience upon which the general deterrence depends.
Denunciation
3.9 Denunciation, in the context of sentencing, is achieved by the imposition of a sentence the severity of which makes a statement that the offence in question is not to be tolerated by society either in general or in a specific instance. The statement made may be directed at any combination of the public at large, victims, potential offenders and individual offenders. In part its aims are similar to that of deterrence. It has also been seen to be associated with retribution.22
3.10 The Victorian Sentencing Committee noted the following justifications for having denunciation as an aim of sentencing:
- To prevent crime by making a public statement that certain offences will not be tolerated.
- To achieve social coherence through the making of symbolic statements that certain crimes will not be tolerated by the community.
- To appease victims of crimes.
- To make a symbolic statement to the offender him or herself that society will not tolerate the commission of the crime for which he or she has been convicted.23
However, the Committee also made reference to the fact that effective denunciation is reliant upon sufficient publicity and to the possibility that denunciation may not effect the public’s perception of the seriousness of an offence even if such an effect could be measured.24
3.11 Denunciation is included in the Sentencing Act 1991 (Vic) among the purposes for which a sentence may be imposed.25 The Court of Criminal Appeal has, on some occasions, made reference to denunciation as an aim of sentencing. It is often referred to when dealing with sentences involving periodic detention. Justice Hunt has noted the view held by the Court that periodic detention has “a strong degree of leniency built into it and as being outwardly less severe in its denunciation of the crime.”26 The use of denunciation can be seen clearly in the judgment of Acting Justice Lee, with which Justice Sully agreed, in R v McKenna, a case which dealt with an offence of homosexual intercourse with a boy under the age of sixteen:
A non-custodial sentence such as, for instance, periodic detention will rarely be appropriate because such a sentence having inevitably a strong built-in element of leniency ... lacks the element of denunciation of the crime which is of vital importance in the case of laws designed to protect young persons and thus necessary if deterrence is to be achieved.27
3.12 More recently in R v MacDonald,28 a case of manslaughter, the Court of Criminal Appeal dealt with a Crown appeal on the grounds of inadequacy against a sentencing decision of Justice Abadee who held that, having regard to all the circumstances of the case, a custodial sentence was not called for. The Court held that, in the circumstances, even though it had been decided that the offender should spend no further time in custody, it was not appropriate to refrain from passing sentence, even if only back dated to cover the substantial period already spent in custody. “Society was entitled to have the conduct of the respondent denounced at least in that fashion”.29
3.13 It could be said that life sentences handed down under the regime before the Sentencing Act 1989 (NSW) contained a strong element of denunciation in that sentences appeared appropriately long, while in reality they would be significantly shorter. In fact it has been suggested, on a theoretical level, that it may be possible to conceive of a public ritual which preserves the “condemnatory function” of punishment while dispensing with its usual physical manifestations.30
Rehabilitation
3.14 Rehabilitative approaches to punishment emphasise the changes that can and should be brought about in offenders’ behaviour in the interests of society and of offenders themselves. Rehabilitative theories rely heavily on the idea that social, psychological, psychiatric or other factors outside a person’s direct control wholly or partly determine or influence that person’s actions, including the commission of crimes. Rehabilitative approaches tend to assume that the factors leading to the commission of crime can be accurately identified, and that treatment or assistance can be prescribed to remove the causes of the undesirable behaviour.
3.15 The rehabilitative ideal has had a long history in Australia. Rehabilitation appears to have been at least one of the consequences of the system of transportation to the Australian colonies, although it is by no means clear that the rehabilitative ideal played any part in the sentencing of offenders to transportation.31 Much, however, appears to have depended on the attitudes of administrators of the system.32
3.16 Where the offender’s chances of rehabilitation are good, this will be an important factor in determining sentence.33 For example, when rehabilitation is underway at the time of sentencing, leniency has often been held to be warranted,34 especially where the offender is young.35 Again, where there is convincing evidence that a custodial sentence would jeopardise rehabilitation which has already been achieved, this may constitute special circumstances warranting a non-custodial sentence.36 By contrast, the fact that it cannot be shown that an offender has no chance of rehabilitation does not prevent a sentencing judge awarding the maximum penalty available.37
3.17 Although rehabilitation is listed as a purpose of sentencing in the recent sentencing legislation of some Australian jurisdictions,38 research has questioned its ability to achieve its goals.39 However, even the Victorian Sentencing Committee, which was heavily influenced by a just deserts approach to sentencing, questioned the reliability of these research findings, pointing to poor methodology, lack of understanding of the goals of rehabilitation, lack of agreed criteria for determining success, lack of sophisticated distinctions between results which indicate success and those indicating failure, and concentration upon custodial rehabilitation programs.40
Incapacitation
3.18 Incapacitation is the notion of rendering an offender incapable of committing further offences while he or she is incarcerated. It is listed in some of the recent Australian sentencing legislation as one of the purposes of punishment.41 Its justification is that the community is entitled to be protected, at least from those who are likely to re-engage in serious violent criminal conduct.42
3.19 Incapacitation is closely associated with the notion of criminal propensity, that is, the likelihood of an offender committing further crime (often of a particular type). It therefore relies upon techniques of prediction. The accuracy of prediction is an important issue and the subject of heated debate. The opponents of selective incapacitation argue that the predictive techniques involved in this process are inevitably flawed and this is also productive of injustices.43 Indeed, the attempts which have been made in the United States to measure the amount of criminal activity which could and would have been prevented by use of imprisonment, appear inconclusive.44 Ethical objections to the appropriateness of incapacitation as a factor in sentencing centre on its potential to generate disproportionate punishment.45 The High Court has held that the likelihood of offending again is not a factor to be taken into account in the imposition of a sentence beyond what is proportionate to the crime.46
3.20 Incapacitation in the sense used in the previous two paragraphs needs to be clearly distinguished from preventive detention, that is, the detention of persons for crimes which they may commit in the future. Preventive detention is a concept which does not exist at common law. Legislation in both New South Wales47 and Victoria48 has, however, recently adopted the concept. This legislation is examined in Chapter 4.49
Other matters?
3.21 A provision of the sentencing legislation in the Australian Capital Territory lists one of the purposes of a sentence as being to “encourage the offender to make appropriate reparation to any victim of the offence”.50 Reparation requires the offender to indemnify the victim for the injury caused as a result of the offender’s criminal conduct. Reparation would link punishment to the victim’s need for restitution or compensation, rather than to the gravity of the offender’s conduct. This poses a philosophical challenge to the idea that punishment is imposed because the criminal law of the State has been broken. For this reason, reparation is most commonly regarded as an adjunct to the options available to sentencers when imposing punishment on an offender.51 The Commission does not regard reparation as one of the aims of sentencing or as a part of the sentencing process. It is merely an ancillary measure or adjunct to the sentencing process.52
The Commission’s view of the objectives of punishment
3.22 The Commission’s tentative view is that it is impossible to identify among the varying philosophical approaches to punishment a dominant rationale which should or could rationally guide the reform of sentencing law, nor do we believe that it is desirable to do so. In our view all the approaches identified above remain potentially relevant in determining sentence, their force in the circumstances necessarily deriving from the facts of the particular case.53 The court must impose a sentence which emerges as a compromise between the competing factors, regardless of which punishment theory is currently in vogue. As H L A Hart wrote many years ago, “any morally tolerable account of [the institution of criminal punishment] must exhibit it as a compromise between distinct and partly conflicting principles”.54 For example, deterrence will generally prove the more important object of punishment for offences such as armed robbery,55 serious drug violations,56 supply of drugs to children,57 bribery and attempts to circumvent court processes,58 and offences against children.59 By contrast, rehabilitation will generally take precedence over deterrence in cases involving young offenders,60 and people with an intellectual disability or a mental illness.61 This is not to say that rehabilitation is irrelevant in the former or deterrence in the latter cases.
3.23 The Commission believes the importance attached to any particular goal or goals of sentencing inevitably varies from time to time, reflecting changes in society and community perceptions. Currently, sentencing theory tends to identify just deserts (however defined) as the predominant goal of punishment. To some extent, this reflects a current concern with notions of proportionality. By way of contrast, in 1949, rehabilitation was clearly identified as the ultimate objective of sentencing by the Supreme Court of the United States, which said:
Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become the important goals of criminal jurisprudence.62
3.24 The Commission considers it important that there should be legislative endorsement of the fundamental purposes, outlined above, which courts must consider when sentencing offenders.
PRINCIPLES OF SENTENCING
3.25 Appellate courts have established and articulated qualitative principles relating to sentencing. The determination of the appropriate sentence in any case is largely determined by the application of those principles to the facts of the case and to the circumstances of the individual offender. The purpose of this section is to discuss the principles which apply to sentencing generally, rather than to those which focus on the circumstances of the individual offender. The latter are considered in Chapter 5.
Imprisonment as a last resort
3.26 Full-time imprisonment is the gravest sanction. Deprivation of liberty is the most serious form of punishment that can be imposed under our law. In reality, imprisonment involves much more than this. The Commission cannot shut its eyes to the oppressive and brutalising effect that the prison environment can have on inmates.63 Not surprisingly, it is a fundamental principle of sentencing at common law that imprisonment is the punishment of last resort, to be imposed only where a non-custodial punishment is inappropriate.64
3.27 The principle of imprisonment as a last resort has received statutory recognition in New South Wales. Section 80AB of the Justices Act 1902 (NSW) prevents an order of a full-time term of imprisonment being imposed by a magistrate “unless satisfied, having considered all possible alternatives, that no other course is appropriate.” The principle is recognised more generally in the recently enacted sentencing legislation in other Australian jurisdictions.65
3.28 Section 17B of the Crimes Act 1914 (Cth) prohibits the imposition of a sentence of imprisonment for minor offences of dishonesty or property damage (where the total value is not more than $2,000) unless there are “exceptional circumstances” warranting such a sentence. The provision applies only where the offender has not been previously sentenced to imprisonment for any offence.
3.29 Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) prohibits a sentence of imprisonment unless:
(a) the defendant has shown a tendency to violence towards other persons; or
(b) the defendant is likely to commit a serious offence if allowed to go at large; or
(c) the defendant has previously been convicted of an offence punishable by imprisonment; or
(d) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.
3.30 Section 9(2) of the Penalties and Sentences Act 1992 (Qld) states that a court must have regard to the principles that imprisonment be used as a last resort and that community-based sanctions are preferable. Subsection 4 complements the general principle:
A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having -
(a) considered all other available sentences; and
(b) taken into account the desirability of not imprisoning a first offender;
is satisfied that no other offence is appropriate in all the circumstances of the case.
Where a sentence of imprisonment is imposed, the court must state and formally record the reasons for the sentence, and send a copy of those reasons to the Criminal Justice Commission.66 A sentence is not invalidated merely because of a failure to state the reasons for sentence, but the failure to do so may be considered if the sentence is appealed.67 The Probation and Parole Officers Association of New South Wales has submitted that a similar provision should be adopted in New South Wales.68
3.31 Section 6(4) of the Sentencing Act 1995 (WA) prohibits the imposition of a sentence of imprisonment unless the seriousness of the offence means that no other sentence is appropriate, or the interest in protecting the community requires it. Section 35 requires the court to provide written reasons for imposing an aggregate term of imprisonment of 12 months or less.
3.32 The question arises as to whether there is a need to give greater effect to the principle of imprisonment as a last resort in New South Wales. Statistical evidence is of little help.69 However, the Commission believes that greater substance can be given to the principle that imprisonment is the sanction of last resort if offenders who are guilty of offences which would attract short terms of imprisonment are, generally, diverted from custodial sentences. Potentially, this involves a large number of offenders. Approximately 60% (3,077) of the total fixed and minimum term sentences imposed by Local Courts in 1994 (5,111) were for 6 months or less.70
3.33 One possible way of achieving this objective would be to set a minimum length of sentence which must accompany any decision to imprison an offender. The effect of such a provision would be that, where a judge or magistrate would otherwise have sentenced the offender to a term of imprisonment less than the minimum duration selected (say three months), a non-custodial order must be used instead. The concern about this option is that sentencers might simply increase the length of shorter sentences in order to ensure that certain offenders served a period of imprisonment. If sentencers responded in this way, the proposal would fail to achieve its objective.
3.34 The Commission has, therefore, provisionally opted for a proposal that judges and magistrates should provide reasons justifying any decision to impose a sentence of imprisonment of six months duration or less. It is hoped that this requirement, in conjunction with the principle that imprisonment should be used as the sanction of last resort, will encourage judges and magistrates to use imprisonment more appropriately. A further possibility, which might be used in conjunction with this proposal, is the abolition of imprisonment as a sentencing option for certain minor offences. The Australian Law Reform Commission suggested in 1988 that certain offences - such as those involving social security, tax, customs and quarantine - should be assessed with a view to eliminating imprisonment as a sentence for their commission.71 The Commission invites comments on this suggestion.
Proportionality
3.35 Proportionality is a central principle in the sentencing of offenders at common law. As developed in Australian jurisprudence, proportionality operates to restrain excessive, arbitrary and capricious punishment by requiring that punishment must not exceed the gravity of the offence.72 The key decisions on the principle of proportionality are Veen v The Queen73 (Veen No 1) and Veen v The Queen (No 2)74 (Veen No 2). Veen No 2 produced a majority judgment which is authority for the proposition that proportionality of punishment to the gravity of an offence is the predominant objective of sentencing, and a sentence cannot be extended beyond what is proportionate merely to protect the community from the offender’s propensity to further offending. However, community protection is relevant in exercising the sentencing discretion, that is, when determining what is a proportionate sentence. The minority view is consistent with that of the majority on the predominance of the proportionality principle, and on the rejection of the notion that a sentence can be increased beyond what is proportionate to the instant offence for the purpose of community protection. Both the minority and majority formulation of proportionality conceive the principle as establishing the outer limit of punishment.75
3.36 In the light of Veen No 2, it can be said that the factors which are generally relevant to the determination of proportionate punishment are those which account for:76
1. the degree of harmfulness of the conduct, including
- the actual repercussions of offending (restricted by the rule that the offender cannot be sentenced because of circumstances which amount to an uncharged or acquitted crime);77
- the method by which the crime was committed (for example, breach of trust)78 ; and
- the vulnerability of the victim.79
and
2. the extent of the offender’s culpability, including
- the sophistication of the crime (although the fact that the offender played a minor role in the commission of the offence goes to mitigation);80
- the offender’s mental condition, intellectual disablement or below average intelligence;81 and
- the criminal history of the offender.82
Sufficient punishment
3.37 Proportionality is also relevant in ensuring that a minimum level of punishment is imposed upon the offender, in that a sentence which fails to give sufficient weight to the objective seriousness of the offence (and is therefore manifestly inadequate) will be quashed. In R v Dodd,83 the offender confessed to a homicide. In determining the original sentence there were said to be powerful subjective circumstances in the offender’s favour, in particular the fact that he had, after ten years, volunteered his confession without any inquiries by the police. Quashing the original sentence of three years periodic detention, the Court of Criminal Appeal noted the serious objective circumstances of the offence and held that inadequate attention had been given to them. The Court stated:
[M]aking due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.84
The Court instead imposed a fixed term of three years imprisonment.
Consistency
Parity between co-offenders
3.38 There is no general rule that the same sentence must be passed on co-accused. But the court must take into account the sentence imposed on a co-offender so that there is no justifiable sense of grievance arising from sentence disparity.85 Where matters such as age, background and previous criminal history (and all other subjective characteristics of the offender) differ significantly between co-offenders, a court is not required to equate the sentences,86 though it should articulate the reasons for any disparity in the sentences passed.87
Between offenders generally
3.39 The likelihood of a similarity of conduct and antecedents is more remote as between offenders who are not co-offenders. Even here, however, consistency remains a general objective in sentencing. In Bugmy v The Queen,88 Justices Dawson, Toohey and Gaudron reviewed the minimum terms that had been set by the Victorian courts for life sentences handed down in that State. They concluded that the effective minimum term of nineteen years for murder exceeded the minimum terms that had been set for other offenders (including a seventeen year sentence for a triple murder). Their Honours observed:
Uniformity of sentencing is a matter of importance. It cannot be pressed too far but what does emerge is that the minimum term fixed for the applicant is higher than any other in the statistics furnished to the Court of Criminal Appeal. That of itself is a matter calling for some scrutiny of the minimum term on the part of the appellate court.89
3.40 The Court of Criminal Appeal has observed that where the alleged disparity does not concern co-offenders, the test is whether the sentence under review was outside the range of sentences appropriate to the objective gravity of the offence and the subjective circumstances of the offender.90 Judicial officers have the discretion to sentence offenders to a range of sentences within reasonable limits. The extent of the range varies considerably for different offences and different circumstances within each offence. The range of circumstances which are relevant to the objective gravity of an offence, and the subjective circumstances of the offender, is very broad. In many cases, the basic circumstances of the offence and of the offender will be comparable. However, there is likely to be variation on at least some of the relevant considerations. This means that, generally, it is artificial to aim for consistency of outcome.
Totality
3.41 In many cases, a series of events which lead to an offender’s conviction will provide evidence of more than one offence and lead to multiple convictions of that offender. The courts have dealt with this by stating that the total sentence imposed upon an offender must reflect the totality of the offending, so that the aggregate sentence is just and appropriate to the totality of the criminal behaviour. This may be achieved by making the sentences wholly or partly concurrent, or by lowering individual sentences.91 The court is not restrained by any statutory maximum penalty applicable to individual offences,92 and should be careful to avoid an overly lenient sentence by too close attention to the principle of totality.93 The principle of totality is the foundation for the law relating to concurrent and cumulative sentences, which is considered in Chapter 4.94
Statutory maximum to be imposed for worst class of case
3.42 The statutorily imposed maximum penalty is the first point of reference in the determination of the quantum of the sentence, since this provides an indication of the legislature’s view of the seriousness of the offence. The statutory maximum is to be reserved for the worst category of offence (not the worst case that can be imagined) to which that maximum applies.95
Sentence to be passed for crime proved against the accused, and no other
3.43 The requirement that a sentencing judge must take into account all the circumstances of the offence is qualified by the overriding principle, affirmed by the High Court in De Simoni v The Queen,96 that no one should be punished for an offence of which he or she has not been convicted. Accordingly, where a statute prescribes a maximum punishment for an offence, and a higher maximum penalty where the same substantial offence has been committed in circumstances of aggravation, then the existence of such aggravating conduct as a matter of fact cannot be taken into account by the sentencer if the more serious offence was not charged in the indictment. In R v Overall,97 the Court of Criminal Appeal held, therefore, that to take into account the fact that grievous bodily harm had been caused by the offender, when only actual bodily harm had been charged in the indictment, was contrary to the De Simoni principle.98 By contrast, offences less serious than the offence charged in the indictment may be taken into account in sentencing the offender for the principal offence.99
3.44 Section 7(3) of the Sentencing Act 1995 (WA) now provides:
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
The effect of this provision appears to be that circumstances of aggravation - which might otherwise create a more serious discrete offence that has not been charged - may be used to increase the penalty that might otherwise have been imposed for the lesser offence. Of course, this penalty may not be increased beyond the maximum penalty prescribed for the (lesser) offence. The Commission’s tentative view is that the law of New South Wales should not enact a provision to this effect. In our view, the principle in De Simoni is fair to the offender.
QUESTIONS ARISING IN CHAPTER 3
1. Should all of the traditional objectives of punishment be identified in sentencing legislation?
2. Does just deserts have a special role to play amongst the objects of punishment? If so, what role?
3. Should general deterrence be an object of sentencing? Is it appropriate to punish an offender for an offence partly on the basis that he or she may serve as an example for others tempted to behave similarly?
6. Does the principle that imprisonment is the sanction of last resort impose a practical restraint upon the resort to imprisonment by sentencing judges? Should the principle be complemented by practical measures aimed at increasing the use of non-custodial measures?
7. Should judges and magistrates be required to provide reasons justifying any decision to imprison an offender for a period of six months or less?
8. Should imprisonment be eliminated as a sanction for some offences? If so, for what types of offence?
9. Is there any need for a legislative provision expressly dealing with aggravating conduct which may establish a separate offence, but which has not been charged against the accused in the indictment?
10. If such a provision is required, are the provisions of the Western Australia Act adequate and fair?
FOOTNOTES
1. J M Barry, The Courts and Criminal Punishment (1969) at 14-15.
2. See paras 3.9-3.13.
3. See paras 3.21.
4. R v Nichols (1991) 57 A Crim R 391.
5. The work which played a major role in the revival of the retributivist sentiment inherent in the “just deserts” theory of punishment was A von Hirsch, Doing Justice: The Choice of Punishments (New York, 1976).
6. But see paras 2.13-2.19. Some American writers would dispute that this is the real objective of the just deserts theory, preferring to regard it, for example, as merely an academic justification for a law and order political platform which reacts to rehabilitation as a “failed, soft-headed, liberal concept”: see L G Forer, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing (Norton & Co, New York, 1994) at 51. But, at least in theory, just deserts is neutral as to severity levels. The principal protagonist of just deserts, Andrew von Hirsch, recognises this and argues that both ordinal and cardinal values be assigned to punishment: see A von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (Rutgers UP, New Brunswick, 1985).
7. See paras 6.51-6.66. See also A Ashworth, Sentencing and Penal Policy (Weidenfeld and Nicolson, London, 1983) at 273.
8. See para 2.8.
9. Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, 1987); Australian Law Reform Commission, Sentencing (ALRC 44, 1988); Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) 3 Volumes; Ireland, Law Reform Commission, Consultation Paper on Sentencing (Dublin, March 1993).
10. See generally Chapter 5.
11. See paras 6.51-6.64.
12. Veen v The Queen (No 2) (1988) 164 CLR 465. See further paras 3.35-3.37. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Vol 1 at 122
13. Sentencing Act 1991 (Vic) s 5(1)(a); Penalties and Sentences Act 1992 (Qld) s 9(1)(a); Sentencing Act 1995 (NT) s 5(1)(a); Sentencing Act 1995 (WA) s 6(1). Compare Crimes Act 1900 (ACT) s 429 and s 429A(1)(j).
14. Crimes Act 1914 (Cth) s 16A(1). See also Criminal Justice Act 1991 (Eng) s 2(2) (dealing with the determination of the length of custodial sentences).
15. A well-known example is the lack of the deterrent effect of the death penalty: see F E Zimring and G Hawkins, Deterrence: The Legal Threat in Crime Control (University of Chicago Press, Chicago, 1973) at 189-190.
16. R v Radich [1954] 1 NZLR 86 at 87. See also R v Cooke (1955) 72 WN (NSW) 132 at 136; R v Rushby [1977] 1 NSWLR 594 at 598.
17. DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 378 per Kirby P, Campbell and Newman JJ.
18. Sentencing Act 1991 (Vic) s 5(1)(b); Penalties and Sentences Act 1992 (Qld) s 9(1)(c); Sentencing Act 1995 (NT) s 5(1)(c). Compare s 16A(2)(j) of the Crimes Act 1914 (Cth) which, unsuccessfully attempted to identify only specific deterrence as a factor in sentencing: see para 2.9.
19. Crimes Act 1900 (ACT) s 429A(1)(i).
20. Crimes Act 1900 (ACT) s 429B(e).
21. See especially Australian Law Reform Commission, Sentencing (ALRC 44, 1988) para 37; Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 66-75. For a defence of deterrence, see J Q Wilson, Thinking About Crime (rev ed, New York, 1983) at 117-144.
22. Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987) at 142.
23. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 102.
24. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 103. On these points see also: Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987) at 142-143.
25. Sentencing Act 1991 (Vic) s 5(1)(d).
26. R v Hallocoglu (1992) 29 NSWLR 67 at 73, and the authorities there cited.
27. R v McKenna (NSW CCA, No 60705/91, 16 October 1992, unreported) at 9 per Lee AJ.
28. NSW CCA, No 60700/95, 12 December 1995, Gleeson CJ, Kirby P and Hunt CJ at CL, unreported.
29. MacDonald at 9.
30. J Feinberg, “The Expressive Function of Punishment” in R A Duff and D Garland (eds), A Reader on Punishment (Oxford University Press, New York, 1994) 73 at 87.
31. Punitive rather than penitential ideals appear to have been to the fore: Report from the Select Committee of the House of Commons on Transportation (London, 1838) in J M Bennett and A C Castles (eds), A Source Book of Australian Legal History (Law Book Co, Sydney, 1979) at 1-2.
32. Compare the views of Lachlan Macquarie on the reforming of convicts (Governor Macquarie to the Duke of York (25 July 1817) in Bennett and Castles at 6) and the practices of George Arthur in Van Dieman’s Land (see A C Castles, An Australian Legal History (Law Book Company, Sydney, 1982) at 258-259) with the views of the British government on severity of punishment and deterrence (Earl of Bathurst to Commissioner Bigge (6 January 1819), in Bennett and Castles at 6-8). Jeremy Bentham, in advocating his “panopticon,” concluded in 1802 that transportation’s real purpose was incapacitation and that it could result in little deterrence and no reformation: J Hostettler, The Politics of Punishment (Barry Rose Law Publishers, Chichester, 1994) at 136-138.
33. Eg R v Osenkowski (1982) 30 SASR 212.
34. Duncan v The Queen (1983) 47 ALR 746.
35. R v Mosley (NSW CCA, No 60037/91, 30 April 1991, unreported).
36. See R v Thompson (1992) 64 A Crim R 365.
37. R v Garforth (NSW CCA, No 60500/93, 23 May 1994, unreported) at 13.
38. Crimes Act 1914 (Cth) s 16A(2)(n); Sentencing Act 1991 (Vic) s 5(1)(c); Penalties and Sentences Act 1992 (Qld) s 9(1)(b); Crimes Act 1900 (ACT) s 429(2)(a); Sentencing Act 1995 (NT) s 5(1)(b).
39. See Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Volume 1 at 80-84.
40. Report of the Victorian Sentencing Committee Volume 1 at 87.
41. Sentencing Act 1991 (Vic) s 5(1)(e); Penalties and Sentences Act 1992 (Qld) s 9(1)(e); Crimes Act 1900 (ACT) s 429(2)(a); Sentencing Act 1995 (NT) s 5(1)(e).
42. See, for example, J Floud and W Young, Dangerousness and Criminal Justice (Heinemann, London) 1981 at xvii, 60; N Morris, “On ‘Dangerousness’ in the Judicial Process” (1982) 39 Record of the Association of the Bar of the City of New York 102; J Q Wilson, “Dealing with the High-Rate Offender” (1983) 72 The Public Interest 52; N Walker, Sentencing: Theory, Law and Practice (Butterworths, London, 1985); N Walker, “Ethical Aspects of Detaining Dangerous People” in Hamilton and Freeman (eds), Dangerousness: Psychiatric Assessment and Management (Gaskill, London, 1982) at 24.
43. M Tonry, “Selective Incapacitation: Its Ethics” in A von Hirsch and A Ashworth (eds), Principled Sentencing (Northeastern University Press, Boston, 1992) at 167-169.
44. See F E Zimring and G Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (Oxford University Press, New York, 1995) at 80-86 (dealing with the results of surveys conducted by the Rand Corporation in the late 1970s).
45. Zimring and Hawkins (1995) at Chapter 4.
46. Veen v The Queen (No 1) (1979) 143 CLR 458 at 467, 468. 482-483, 495; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491, 496.
47. Community Protection Act 1994 (NSW).
48. Community Protection Act 1990 (Vic).
49. See paras 4.120-4.126.
50. Crimes Act 1900 (ACT) s 429(2)(b).
51. See, for example, Crimes Act 1900 (NSW) s 438; Crimes Act 1914 (Cth) s 21B; Penalties and Sentences Act 1992 (Qld) s 35(2); Sentencing Act 1995 (WA) s 110(1).
52. See paras 10.24-10.44. Restitution as a mitigating factor is also relevant to the quantum of punishment: see paras 5.86-5.92.
53. See R v Williscroft [1975] VR 292 at 299.
54. H L A Hart, Punishment and Responsibility (Clarendon Press, Oxford, 1968) at 1.
55. R v Readman (1990) 47 A Crim R 181.
56. R v Tedesco (1982) 7 A Crim R 430.
57. R v Coleman (1991) 56 A Crim R 369.
58. R v Taouk (1992) 65 A Crim R 387.
59. R v Burchell (1987) 34 A Crim R 148.
60. R v GDP (1991) 53 A Crim R 112. Although see R v Pham (1991) 55 A Crim R 128.
61. R v Champion (1992) 64 A Crim R 244. See further paras 5.55-5.60.
62. Williams v New York (1949) 337 US 241 at 248.
63. See, generally, Report of the Royal Commission into New South Wales Prisons (NSW Government Printer, Sydney 1978) (“Nagle Report”); Australian Law Reform Commission, Sentencing (ALRC 44, 1988) Chapter 3; G Zdenkowski and D Brown, The Prison Struggle: Changing Australia’s Penal System (Penguin Books, Ringwood, 1982).
64. R v Parker (1992) 28 NSWLR 282.
65. Crimes Act 1914 (Cth) s 17A; Sentencing Act 1991 (Vic) s 5(4); Penalties and Sentences Act 1992 (Qld) s 9(2)(a)(i); Crimes Act 1900 (ACT) s 429C; Sentencing Act 1995 (WA) s 6(4).
66. Penalties and Sentences Act 1992 (Qld) s 10(1).
67. Penalties and Sentences Act 1992 (Qld) s 10(2).
68. Probation and Parole Officers Association of New South Wales, Submission at 9.
69. A superficial view of the statistics for 1990-1994 is that the use of imprisonment (as opposed to non-custodial sentences) may be on the increase: see New South Wales Bureau of Crime Statistics and Research, Key Trends in Criminal Justice - 1994 (BCSR, 1995). While the number of persons sentenced to imprisonment fell in both the Supreme Court (by 37.9%) and in Local Courts (by 5.8%) (at 7, 9, 10), imprisonment was the punishment in a greater proportion of cases involving the sentencing of men - Local Courts (up 4.6%), District Court (up 15%) and Supreme Court (up 15.5%) (at 7, 11). However, no conclusions can be drawn from this data which fails to account for the throughput of trials in the system.
70. Data taken from New South Wales Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1994 (BCSR, 1995) at Tables 1.10, 1.11.
71. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 59.
72. See especially R G Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489.
73. (1979) 143 CLR 458.
74. (1988) 164 CLR 465.
75. Veen (No 2) at 472 per Mason CJ, Brennan, Dawson and Toohey JJ, at 486 per Wilson J. See also Hoare v The Queen (1989) 167 CLR 348 at 354.
76. See Fox (1994) at 498-503.
77. See paras 5.29-5.37.
78. See paras 5.25-5.28.
79. See paras 5.33.
80. See paras 5.19-5.24.
81. See paras 5.55-5.60.
82. In Veen No 2 at 477-478 the majority (Mason CJ, Brennan, Dawson and Toohey JJ) said: “It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender or offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties”. See also the dissenting judgments of Wilson J at 488, Deane J at 491 and Gaudron J at 496. For discussion on this and the judgment in Baumer v The Queen (1988) 166 CLR 51, see D Hunt and H Donnelly, “The Objective Circumstances of the Case and Prior Record” (1995) 7 Judicial Officers Bulletin 57 at 58.
83. (1991) 57 A Crim R 349.
84. Dodd at 354. Consider also R v Russell (NSW CCA, No 60248/94, 15 December 1995, unreported).
85. Lowe v The Queen (1984) 154 CLR 606. See further para 5.115.
86. Lowe at 609 per Gibbs CJ; R v Gibson (1991) 56 A Crim R 1 at 7 per Carruthers J.
87. Lowe at 622 per Dawson J.
88. (1990) 169 CLR 525.
89. Bugmy at 538 per Dawson, Toohey and Gaudron JJ.
90. R v Ellis (1993) 68 A Crim R 449, per Hunt CJ at CL at 461. Compare the dissenting judgment of Kirby P at 456-59. See also R v Visconti [1982] 2 NSWLR 104.
91. Mill v The Queen (1988) 166 CLR 59. See also R v Close (1992) 31 NSWLR 743.
92. R v Begnell (NSW CCA, No 60799/91, 26 November 1992, unreported). Compare England, Advisory Council on Penal System, Sentences of Imprisonment: A Review of Maximum Penalties (HMSO, 1978) at 96.
93. R v Todd [1982] 2 NSWLR 517.
94. See paras 4.46-4.64.
95. R v Oliver (1980) 7 A Crim R 174.
96. De Simoni v The Queen (1981) 147 CLR 389.
97. (1993) 71 A Crim R 170 (Mahoney JA and Allen J, Hunt CJ at CL dissenting).
98. Overall at 175 per Mahoney JA.
99. R v Garforth (NSW CCA, No 60500/93, 23 May 1994, unreported) at 7-8; Overall at 177 per Hunt CJ at CL.
