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Sentencing Purposes: Just Punishment

Written by Deike Kemper

Deike holds a Juris Doctor (Master of Laws degree) from Monash University. She also holds a Graduate Diploma of Legal Practice from the College of Law and is admitted as a Lawyer in the Supreme Court of Victoria and the High Court of Australia. Deike is also a Registered Migration Agent. Deike has a passion for family and criminal law, as well as regularly assisting clients with matters relating to outstanding infringements. She has assisted clients with a wide range of criminal charges, ranging from driving offences, assaults and thefts to child pornography and sex offences involving children.

When courts sentence offenders, they consider the principles set out under Section 5 of the Sentencing Act 1991. These matters are broadly known as “sentencing purposes”. One of those sentencing purposes is just punishment. A sentence imposed for the purpose of just punishment aims to punish the offender in a manner that the community would consider fair, having regard to all the circumstances. The underlying purpose of just punishment is to safeguard social unity.

How important is just punishment?

Just punishment is arguably of increasing importance in the present day, with social media making the community more aware of sentencing outcomes and the details of offending behavior. As has been established “[T]here is a community expectation that particular offences merit substantial punishment. This expectation if denied brings with it a risk that community respect for the administration of the law will be reduced … The danger of such a situation is that if the community lacks confidence in its criminal law it tends to take punishment into its own hands, inflicting harsh and unreasonable retribution upon offenders.” (McGarvie J in Woolnough, 1981).

Accordingly, the sentencing purpose of just punishment often weighs heavily on the decision maker when determining a sentence.

Proportionality

In determining the degree of just punishment that is required and its impact on the sentence, the court primarily considers “what the offender did and why, as well as who the offender is” (Storey, 1998).

The basis for this sentencing purpose has been described as being that “a community’s demand to be satisfied that those who depart from the standards which others feel obliged to observe should not be allowed to do so with impunity” (Gowans J in Dole, 1975).

This means that the sentence to impose in the interests of just punishment is worked out on the basis of proportionality. In other words, the more serious the offending, the harsher the sentence. However, there are also other factors to be considered as well. These include the offender’s good character, any previous offences, repentance, restitution and possible rehabilitation will all point to what is the appropriate sentence in a particular case.

In addition to this the term just punishment is often used interchangeably with retribution, which means the need for

“Not only … the community [to] be satisfied that the offender is given his or her just deserts, [but] it is important as well that the victim, or those who are left behind, also feel that justice has been done” (DPP v Gordon, 1994).

Just punishment and other sentencing purposes

Whilst the sentencing purpose of just punishment is often considered important, it is notable that “[t]he purposes of punishment are manifold and each element will assume a different significance not only in different crimes but in the individual commission of each crime” (Adam and Crockett JJ in Williscroft & Ors, 1975).

As such the purposes of rehabilitation, protection of the community and denunciation must all be balanced. Depending on the circumstances of the offender and the circumstances of the offending, one or more of these sentencing purposes may attract greater weight than that of just punishment. However, it is important to note that sentences where just punishment is the primary focus may differ little from sentences that have denunciation or protection of the community as the primary consideration.

Ultimately, the culpability of the offender is highly relevant to deciding how much weight to give to just punishment. This means that the offender’s circumstances and reasons for the offending become relevant. Similarly, the degree of punishment and hardship that the accused may have already experienced through circumstances beyond the actual sentence may also be relevant. In summary the weight given to each sentencing purpose, as well as that of just punishment, differs greatly depending on the unique circumstances of the offender and the offence.

Particular offences

However, over time it has been established that just punishment is particularly relevant to dealing with particular offences and types of offenders. For example, in offences involving death such as murder or culpable driving causing death matters, courts have determined that the purposes of just punishment and general deterrence are of significance often notwithstanding the personal circumstances of the offender, such as age and health.

Similarly, for any offences which involve physical or sexual violence, the purpose of just punishment is a paramount consideration. This is because these offences

“go to the heart of the freedom of the individual to move in our society… they strike fear into the minds of the victims and affect their feeling of security in the future … accordingly … the community looks to the court to punish those … who bring terror into the lives of such innocent people” (Murphy J in Gates, 1988).

Furthermore, offences which have become prevalent at any point in time in a community, are likely to attract a significant degree of just punishment, as it has been determined that “[H]aving regard to the prevalence of [a] type of offence … the community is entitled … to expect that there will be a degree of retribution taken into account in the selection of an appropriate sentence to impose” (Johnston, 1995).

Particular offenders

The type of offender is also extremely relevant in determining the sentence and the weight to be given to specific sentencing purposes. It has been determined that professional criminals, those who commit crimes to obtain wealth and who offend despite being of significant intelligence, and as such do so with a degree of knowledge and disregard cannot expect leniency from the courts.

Youthful offenders

When dealing with youthful offenders, courts must keep the sentencing purpose of rehabilitation at the forefront. However, it is notable that courts do not consider this a blanket rule but one that is to be considered in conjunction with the type and nature of offending conduct. It has been noted that rehabilitation plays a more important role and general deterrence a lesser role when sentencing youthful offenders.

However, Hunt CJ noted in the 1995 matter of Bus that

“that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him”.

Preparing to be sentenced

If you are going to be sentenced for criminal offences, it is important to make sure that you or your lawyer address all sentencing purposes when making submissions to the court. You should ensure that any mitigating factors are highlighted and that aggravating factors are also acknowledged and addressed.

Each case turns on its own specific circumstances. Our justice system is based on “equal justice” meaning that offenders who commit similar offences in similar circumstances should receive similar sentences. However, a case can often be differentiated through its particular circumstances.

It is important to note that whilst it might seem that just punishment is more important than other sentencing purposes, the court is obliged to consider all five sentencing purposes when determining a sentence.

If you require legal advice or representation please contact Go To Court Lawyers. 

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