New South Wales courts must sentence offenders found guilty of criminal offences under the Crimes (Sentencing Procedure) Act 1999. No two crimes are the same and so courts are afforded immense discretion when sentencing an offender, after considering all the circumstances of the offending and of the offender. In the 1998 case of Veen v The Queen, the court stated “The purposes [of punishment]…are guideposts to the appropriate sentence but sometimes they point in different directions.” Deterrence is one of many principles that must be taken into account at sentencing.
What are the purposes of a sentence?
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the ‘purposes of punishment’ which a court should consider when sentencing an offender.
- Retribution or just punishment;
- Community protection;
- Recognition of harm.
Deterrence is a well-known sentencing principle and is regularly cited in court decisions, along with retribution, rehabilitation and community protection. Section 3A(b) states that the court must impose a sentence that “prevent[s] crime by deterring the offender and other persons from committing similar offences”.
There are two distinct purposes for which a sentence may be imposed based on the principle of deterrence. These are General Deterrence and Specific Deterrence.
General deterrence refers to the need to protect the public from the commission of crimes by making it clear to other people who may have impulses or inclinations to commit the same or similar offences, that they will meet a severe punishment should they choose to offend.
It is argued that the court has a duty to the public to see that a sentence which is imposed on an offender operates as a powerful tool to prevent the commission of similar crimes. If there is no fear of a severe punishment, other members of society who wish to engage in the same conduct may be tempted to do so.
An example of this would be the court’s attitude towards Drink Driving offences in NSW. Each court in NSW has a very similar approach to sentencing drink driving offenders, particularly Mid-Range and High-Range offences. It is only in exceptional circumstances that one may avoid the recording of a conviction and a licence disqualification for these offences.
Specific deterrence refers to the need to deter a particular offender from re-offending in the future. The reasoning behind this principle is that if an offender receives a harsh penalty, they are likely to think twice before engaging in that type of conduct, or any other criminal conduct, in the future.
Specific deterrence is a greater consideration in instances where an offender already has a criminal history, a substantial traffic history, or anything that may point towards a continuing attitude of disobedience to the law. This can result in a particular offender receiving a punishment that is more severe than another offender charged with the same offence.
Mental conditions and deterrence
The task of a sentencing court is to assess and give weight to each purpose of punishment in each individual case. In situations where offenders present with mental conditions or illnesses, courts will generally give less weight to the principle of deterrence. This is because it is generally recognised that offenders with mental conditions or illnesses may not fully understand what they are doing, or the gravity of their actions and so should not be used as an example to others.
However, it should be noted that this is not always the case. As discussed in R v Matthews (2004), the presence of a mental condition does not always justify reducing the application of deterrence.
Effectiveness of deterrence
There has always been a great deal of debate surrounding the effectiveness of deterrence in sentencing. The High Court of Australia addressed this issue in its decision in Munda v Western Australia (2013) 87 ALJR 1035 at  as follows:
“The proper role of the criminal law is not limited to the utilitarian value of general deterrence…To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the State to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.”
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By Taylor McAnderson, Solicitor