Criminal Law and Procedure
Week 11
Sentencing: Justifications for
punishment
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;
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.
Lecture summary (weeks 11-13)
 Week 1:
– Introduction to sentencing
– Justifications for punishment
 Week 2: The sentencing process
 Week 3:
– Sentencing dispositions
– Related topics
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
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
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
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.
Penalties and Sentences Act
1992 (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.
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.
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
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
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)
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.
Justifications for punishment
 Criminology
 theories of punishment
 modern trends
 purposes for punishment as expressed in
Qld Penalties and Sentences Act
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
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.
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?
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
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
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
Who is the criminal?
Traditional justifications for
punishment
 Retribution
 Deterrence
– general
– special or individual
 Rehabilitation
 Also:
– Protection
– Reformation
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
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
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).
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
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)