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Deterrence in Tasmania

Tasmanian courts sentence criminal offenders according to legislative provisions and common law precedent. Within the constraint of the law, courts have significant discretion to sentence a convicted defendant according to the circumstances of the crime and the offender. This discretion is exercised with a view to the purposes of punishment. For instance, a Tasmanian court will pass an appropriate sentence that reflects (amongst other variables) the importance of general and specific deterrence. This article explains the meaning and purposes of deterrence in Tasmanian criminal sentences.

Purposes Of Criminal Sentencing

The Sentencing Act 1997 outlines the following factors that a judge must consider when passing sentence on a criminal offender.

  • Deterrence of the offender and others in the community;
  • Denunciation of the offence;
  • Retribution;
  • Protection of community;
  • Rehabilitation; and
  • The victim’s interests.

When a judge sentences an offender, he or she will usually explain how the sentence responds to the specific purposes.

Legislation on deterrence In Tasmania

Section three of the Sentencing Act allows the courts to “impose sentences aimed at deterring offenders and others from committing offences”. The aim of this deterrence is to promote respect for the law and help prevent future crime. As such, general deterrence and specific deterrence are often cited as reasons for a particular sentence.

Specific Deterrence in Tasmania

A sentence may be imposed with a view to specific deterrence. Specific deterrence is the principle that the penalty should deter the specific offender from committing the same type of offending again in the future. The theory is that an offender who receives a steep penalty is likely to refrain from the same conduct or other similar criminal behaviour in the future. Specific deterrence is particularly common for offenders with a criminal history or a habitual disregard for the law. An offender who has not learnt from their previous penalties is likely to receive a more severe punishment to “wake them up” to the seriousness of their situation. The penalty for these offenders needs to be severe enough to ensure that the individual understands the gravity of their actions and amend their behaviour in the future.

The Supreme Court of Tasmania has repeatedly condemned those who persistently violate the law. For instance, in Barrett v Pearce (1986), the court mentioned the need for adequate consideration of the repetition factor and the necessity to give due weight to the principle of deterrence.

General Deterrence in Tasmania

A sentence may also be imposed with a view to general deterrence. Sentences that prioritise general deterrence are designed to dissuade other members of the community from committing a similar offence. Courts have a duty to impose sentences that will discourage the commission of certain crimes. With these sentences, the courts signal to members of the public that if they commit this crime, they will receive a severe punishment.

For instance, the Supreme Court gave heavy consideration to the need for general deterrence when sentencing the offender in the case of State of Tasmania v Ray McCallum (2022). The offender was convicted of accessing and possessing child exploitation material. He had a relatively small amount of material and no relevant criminal history, which would usually indicate a lighter punishment. However, in sentencing, the court underscored the need to condemn the defendant’s behaviour and send a “very clear message” to others who might be “minded to engage in similar behaviour that is simply unacceptable”. The judge noted that in the sentencing exercise, predominance must be given to general deterrence and denunciation. Therefore, he imposed a period of imprisonment (suspended) for five months, with a good behaviour bond, special conditions and a further community corrections order.

Many sentences are based on the principles of both specific and general deterrence. For instance, in Briant v Bessell (1994), Justice Zeeman underscored the need to treat driving under the influence as a grave social evil that must receive a severe enough penalty to act as a general deterrent to the community and as a specific deterrent to the offender.

Ineffectual Deterrence

A sentencing court typically gives less emphasis to the principle of deterrence when the offender has a mental health condition. The court is disinclined to use an offender’s punishment as a vehicle for deterrence if they have difficulty understanding the gravity of their actions. However, this is not always the case, as the defendant’s mental health condition may not justify ignoring the principle of deterrence.

The use of general and specific deterrence in sentencing is not without detractors. In fact, there has been continuous debate over the effectiveness of deterrence in sentencing. The High Court of Australia noted in Munda v Western Australia (2013) that criminal sentencing should not just be an exercise in general deterrence. The state has a broader obligation to express the community’s disapproval, vindicate the dignity of the victims, and protect the vulnerable against future violence.

When deciding a sentence for a convicted offender, the court will consider the importance of both general and specific deterrence. The team at Go To Court Lawyers can provide expert advice on sentencing in a criminal trial and legal assistance on any other matter. Please call 1300 636 846 or contact our offices today for experienced assistance.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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