THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
-Retribution
-Rehabilitation
-Incapacitation
DISCUSS factors that affect
sentencing decisions, including
the purposes of punishment and
the role of the victim
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
-Retribution
-Rehabilitation
-Incapacitation
“Identify issues and provide
points FOR and AGAINST”
ISSUE 1
Name an issue
FOR
FOR
FOR
FOR
FOR
AGAINST
AGAINST
AGAINST
AGAINST
AGAINST
ISSUE 2
Name an issue
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
-Retribution
-Rehabilitation
-Incapacitation
Crimes (Sentencing Procedure) Act 1999 (NSW)
Section 3A sets out the purposes “for which a court may impose a
sentence on an offender”
-Deterrence
Specific
General
-Retribution
-Rehabilitation
-Incapacitation
WHY are we punishing this person
IN THIS WAY for the crime they’ve
been found guilty of?
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
DETER = Give someone a reason NOT to do something
Discourage an action by providing possible consequences
TWO TYPES of deterrence:
SPECIFIC deterrence – Where THE DEFENDANT as an individual is
given a serious punishment to stop HIM/HER from ever doing it
again; and
GENERAL deterrence – Where ONE defendant is punished
harshly to set an example for anyone else who thinks it would be
a good idea
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
Imprisonment as…
… a SPECIFIC deterrent:
Imprisonment does not really work very well as a specific deterrent –
BOCSAR released a report in 2006 that showed that 41% of released
prisoners were back in jail within 3 years!
The best general deterrence is increasing the likelihood of getting
caught. Increasing penalties doesn’t work (because criminal don’t plan
on getting caught!!!).
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
Imprisonment as…
… a SPECIFIC deterrent:
Offenders who received a prison sentence are slightly MORE likely to reoffend than those who received a non-custodial (non-prison) penalty
‘The Effect of Prison on Adult Re-offending’, Bureau of Crime Statistics, 2010
… a general deterrent:
Crime levels are not affected by the severity of sentences
Crime and Justice - A Review of Research, (2004)
THE PURPOSES OF
PUNISHMENT
-Deterrence
Specific
General
Imprisonment as…
… a GENERAL deterrent:
The former Chief Justice of the Supreme Court (Jim Spigelman) has been
frustrated that the media only seems to report the sentences they see
as “too lenient/low” –
“The media would enhance the deterrent effect if
they reported it more fully or accurately”
Putting the Truth into Sentencing, SMH, 2010
THE PURPOSES OF
PUNISHMENT
-Retribution
When a criminal is punished, it is sometimes not to rehabilitate (“fix”) them OR to stop them
from doing it again, it is done mainly to get revenge for what their victim suffered.
We call this “retribution”
One reason we let judges dish out punishments for the purpose of retribution is to
stop people from taking the law into their own hands.
The legal system discourages this by trying to make sure that the victims and the victims’
families (and society as a whole) feel like they have got revenge (“retribution”) for that crime.
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
REHABILITATION
does not always mean
DRUG REHABILITATION
When it comes to the purposes of punishment, rehabilitation just means
‘reform’
(bringing the person back to a “normal” way of behaving)
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
We’re doing a terrible job rehabilitating criminals.
The rate of recidivism (% of people who re-offend within 2 years of
being convicted the first time, not necessarily went to jail) was 29%!
For young people, it was MUCH worse – 56%!!!
This might be because the NSW government spends less than 1% of its
total budget for “Corrections” (prisons, etc) on rehabilitation.
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
So, prison is completely useless as rehabilitating
offenders.
BUT, there are OTHER punishments where the
purpose is to rehabilitate:
- Community Service Orders
- Bonds (where the offender has to attend some sort
of counselling)
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
For young people…
The Young Offenders Act 1997 aims to keep young offenders
away from the criminal justice system (diversionary
programs, like Youth Conferencing).
For those that DO end up in the Children’s Court facing a
punishment, the main aim is ALWAYS rehabilitation.
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
For drug addicts…
The Drug Courts:
-
-
If the defendant pleads guilty, they can be dealt with in a Drug Court and sent to
rehabilitation programs.
Reduces reoffending by 37% (BOCSAR 2010)
The MERIT program:
-
Works through the Local Court.
The defendant doesn’t have to plead guilty, but they have to be motivated to go through a
rehabilitation program.
Reduces reoffending by 12% (BOCSAR 2009)
The Alcohol-MERIT program:
-
A couple of Local Courts have the MERIT program for people where alcohol is behind their
offending.
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
For young people who are also drug/alcohol addicts…
The Youth Drug and Alcohol Court:
Sent young offenders to counselling and rehabilitation programs instead
of jail.
The NSW government decided to shut it down in 2012 because it was
“too expensive”.
Anger as NSW axes youth drug court (ABC, 2012)
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
Probably the most controversial area of rehabilitation is when it comes to child sex offenders.
Should we focus more strongly on taking action to rehabilitate them, given that they don’t stay
in prison forever (though, theoretically, they can now under the Crimes (High Risk Offenders)
Act 2006*)?
Public fear of “paedophiles” has made this difficult. In fact, the public’s focus on punishing them
for the purposes of incapacitation and retribution (while natural responses) has been shown
to increase rather than decrease their likelihood of reoffending.
Research from the University of Melbourne emphasised that the vast majority of sex offenders
were not what a psychologist would see as paedophiles. Apparently only 3-4% of child sex
offenders meet the definition; most would have preferred to have sex with an adult if they
could. So, whilst actual paedophiles can’t be rehabilitated (and should be imprisoned for the
purpose of incapacitation), many sex offenders can change their behaviour…
… just don’t move one next-door to me and my son…
Stress on sex offenders increases risk of re-offending (SMH 2012)
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
A quote (for you guys who like using quotes):
“The rights of the victims of crime, of course, should
not be ignored. Indeed, they are paramount.
If justice is to be more than merely punitive, and we as
a society are to be more than mere jailkeepers, then
surely there is a case for investing more in
rehabilitation”
Balancing punishment and rehabilitation (SMH 2013)
THEME 5: The extent to which law balances the rights of victims, offenders and society
THE PURPOSES OF
PUNISHMENT
-Rehabilitation
The Crimes (Sentencing Legislation) Amendment
(Intensive Correction Orders) Act 2010
This is a new(ish) sentencing option in NSW (only for offenders facing
less than 2 years possible imprisonment) where the offender gets
conditions placed on him.
e.g. MANDATORY/COMPULSORY participation in rehabilitation programs
Strict curfews and association restrictions
24/7 electronic monitoring
Community service work
etc etc etc…
THE PURPOSES OF
PUNISHMENT
-Incapacitation
Incapacitation
This means that the person is imprisoned (notice the “im” not “in”). The
idea of this is that while they are imprisoned, they are taken out of
society, and therefore the rest of society is protected.
If the person is really seriously dangerous, they could even be isolated
from other prisoners within the prison itself.
THE PURPOSES OF
PUNISHMENT
-Incapacitation
Matthew Milat was given a Minimum Non-Parole
Period of 30 years for murdering his friend with an
axe.
The sentencing judge said that he remained a
serious potential threat to the community
because:
1. He had no remorse for his killing;
2. He seemed to have little motive for doing it;
3. He was still young (only 19 when sentenced);
and
4. He seemed to enjoy being known as a murderer.
Milat jailed for 43 years (SMH 2012)