Theories of sentencing:
punishment and the deterrent
value of sentencing
Faculty of Law
Presenter:
Professor Kate Warner, UTas.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Introduction
1. (Very) brief historical introduction to
the theories.
2. Australian sentencing legislation:
e.g. Sentencing Act 1991 (Vic) s 5(1):
• to punish to the extent and manner it
is just in all the circumstances; to deter
the offender or others; denunciation;
rehabilitation; to protect the community.
3. Outline and overview of argument.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
General deterrence in sentencing decisions
General deterrence is a very popular
sentencing rationale. In R v Harrison
(NSW CCA) Hunt CJ at CL went so far
as to say:
Except in well-defined circumstances
such as youth or the mental capacity
of the offender … public deterrence is
generally regarded as the main
purpose of punishment …
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Courts sometimes acknowledge the
limitations of general deterrence:
e.g. King CJ in R v Dube admitted that there is
no clear evidence that increased levels of
punishment have any effect upon the
prevalence of crime. But, he added:
The criminal justice system has always
proceeded upon the assumption that
punishment deters …. and that the proper
response to increased prevalence of a crime
of a particular type is to increase the level of
punishment for that crime.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Where general deterrence if of little (or less)
weight:
When the offender is mentally ill or disabled,
he or she is an inappropriate vehicle for
deterrence (R v Verdins (VSCA)):
• because public will understand that their
culpability is limited;
• because general deterrent sentence on such a
person would have no deterrent impact (lesson
learnt won’t be perceived as being applicable to
others who don’t have such a disability).
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Courts embrace general deterrence
General deterrence most frequently used
aim in practice in Queensland
(Mackenzie 2005).
Crown appeals in Victoria: failure to give
sufficient weight to general deterrence
raised as a ground of appeal in 73.5% of
appeals - successful in 44% of cases
(Ritchie 2011).
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Does general deterrence work?
Absolute deterrence works: the absence
of any punishment structure – criminal
prohibitions, police, courts and sanctions
would reduce compliance with the law
(e.g. police strikes in Melbourne in 1923
which led to widespread property
damage and looting; imprisonment of
Danish police force in 1944; English riots
of 2011).
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Does general deterrence work?
Marginal deterrence: do harsher
sentences deter?
Most reviews support the claim that
there is no evidence that harsher
penalties deter (Doob and Webster
2003; Ritchie 2011).
Sentencing: From theory to practice, Canberra, 8-9 February 2014
The conditions for effective deterrence
•The risk of detection must not be
thought to be too remote;
• the penalty should be publicised
adequately so that it is known to
potential offenders;
•the penalty must be perceived as a
deterrent; and
• potential offenders must weigh the
risks rationally.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Why do courts continue to embrace general
deterrence?
•The intuitive appeal of general
deterrence?
• They feel obliged to because statute
requires it.
• Failure to rely upon it could be a
ground of appeal.
• use of ‘deterrence speak’ – rhetoric to
support a proportionate sentence.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
The costs of relying upon general deterrence
• It makes false promises to the
community.
• It distracts attention from other more
effective options to tackle the crime.
• It encourages penal populism and calls
for harsher sentences such as
mandatory sentences.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Can courts reduce reliance on general
deterrence?
• Abandon the suggestion that the
severity of the penalty reduces crime.
• If general deterrence reasoning is
used, confine it to absolute or system
deterrence.
• Think and speak carefully when using
deterrence reasoning and avoid
‘deterrence speak’.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Do members of the public embrace general
deterrence as a sentencing purpose?
• Indermaur (1990) found that for the
violent offence scenario preferences for
incapacitation and retribution accounted
for almost two thirds of the responses.
• In a more recent national survey of
800 randomly selected Australians, using
8 scenarios, general deterrence was
endorsed as the most important purpose
by only 10%.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Do members of the public embrace general
deterrence as a sentencing purpose?
• Tasmanian jury sentencing study:
punishing the offender (40%) most
important followed by specific
deterrence (22%) and denunciation
(11%). General deterrence was ranked
at under 10%.
International studies: retribution seems
the most popular choice at least for
crimes like burglary and robbery.
Sentencing: From theory to practice, Canberra, 8-9 February 2014
Conclusion
• The evidence fails to support a
relationship between sentence severity
and crime reduction.
• Reliance on general deterrence as a
justification for a particular sentence
comes at a significant cost.
• Courts should curtail their reliance on
general deterrence and instead use
language which reflects the seriousness
of the offence and a punishment that
reflects this.
Sentencing: From theory to practice, Canberra, 8-9 February 2014