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Sentencing Purposes: Denunciation and Deterrence

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 a court is deciding on a sentence, it must consider the principles set out under Section 5 of the Sentencing Act 1991. These matters are known as sentencing purposes. Two of these sentencing purposes are denunciation and deterrence.

Denunciation

The sentencing purpose of denunciation seeks to ensure that the court communicates that the offending behaviour is unacceptable. This must be communicated not only to the offender but to the broader community. To that end, the courts are given the power to impose sentences to express public indignation and condemnation of the conduct.

Case law

In the 1975 decision of Wilston & Ors, Judges Adam and Crockett stated:

“The aims of punishment are often classified as retributive, preventive, deterrent, and reformative, but this classification is plainly an oversimplification. It ignores or leaves inarticulate, for example, other purposes which the criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.”

The role of the court is to be at the forefront of the community and represent its attitudes towards criminal conduct and offenders. However, it has been pointed out that the courts are limited in their ability to know precisely what the community’s view of an appropriate sentence is, just as the community has limited knowledge of the facts and circumstances of any given case. Accordingly, ‘The courts are expected and obliged… to implement the criminal law in a way that ‘can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just’ (R v Williscroft & Ors).

Community outrage

There may be instances where a court imposes a sentence which the public considers inappropriate and which is not reflective of the community expectations and standards. The role of the court is not to reflect the community’s and public’s opinion with respect to sentencing. Rather, the sentencing purpose of the consideration of denunciation is not to disregard community views.

It has been noted that public outrage that occurs after a sentence is imposed is immaterial. In considering the public’s opinion, it has been noted that this must be the “informed public opinion” which can be described as the “rational balanced opinion based upon all the material put to the court for the purpose of imposition of sentence and an awareness of the range of penalties imposed in the past in like cases” (Inkson, 1996).

It is notable that in applying the sentencing purpose of denunciation, the courts must make sure that it is not the offender him or herself but rather the conduct that is the subject of the denunciation.

Deterrence

The sentencing purpose of deterrence is best described as seeking to deter the offender or other persons from committing offences of the same or a similar character. A significant distinction exists within this sentencing purpose between specific and general deterrence.

Depending on the circumstances of the case, greater weight may be given to specific deterrence or to general deterrence.

Specific deterrence

Specific deterrence seeks to address at its core the offender as an individual and to deter the specific offender from committing further offences. This sentencing purpose often has a degree of overlap with the sentencing purpose of rehabilitation.

General deterrence

General deterrence is a warning system to the public. It seeks to deter other members of the community from committing similar offences. It requires the public to be aware of the sentence imposed, in order for general deterrence to be relevant in the purpose of sentencing.

The extent to which general deterrence is relevant largely depends upon two factors:

  • the extent to which the sentence is, and is perceived by the community to be, punitive; and
  • the extent to which the sentence and its punitive nature is communicated to the group it is intended to deter

General deterrence seeks to temper the criminal tendencies of others. This can sometimes lead to significant increases in sentences, which may otherwise have been lower. In that sense it is only in exceptional and well-defined circumstances, that general deterrence isn’t really the primary purpose of sentencing, with the personal circumstances of the matter being really subsidiary and less persuasive.

Mitigating factors relating to the particular offender are generally given little or no weight with respect to a sentence imposed in the interests of general deterrence. It has been noted that “good character cannot protect from a custodial sentence those who embark upon crimes of such potential damage to the community. Society has little alternative but to impose upon such people a custodial sentence for the deterrence which it may have upon others.” (Raptis & Ors, 1988).

Is deterrence a valid consideration?

There is some controversy as to the validity of the sentencing purpose of deterrence. Some evidence shows that the threat of imprisonment only has a small general deterrent effect. Furthermore, according to a 2011 report by the Sentencing Advisory Council, the increasing severity of the punishment, for example, the length of a prison term, does not necessarily correspond with an increasing general deterrent effect. Nonetheless, deterrence continues to be a relevant sentencing purpose which seeks to lead the court to a sentence which is not disproportionate to the gravity of the offence.

When is deterrence not a consideration?

An exception to the application of deterrence, both specific and general, is where the offender suffers from a mental impairment. Courts generally do not consider mentally impaired offenders to be a good vehicle for deterrence.

However, as Justice Cavanough noted in the 2012 decision of Sikaloski, the mere existence of mental impairment in the offender “does not automatically mean that the importance of deterrence as a sentencing factor is reduced”. For example, where a mental impairment arises as a result of the discovery of the crime and the offender’s reaction to the prospect of being sentenced, there is no requirement to vary the importance of either general or specific deterrence.

Whilst arguably an accepted mental illness, courts have found that gambling addiction is not sufficient to reduce the significance of general deterrence when determining a sentence.

Preparing to be sentenced

Ultimately, no individual sentencing purpose can be determinative of a sentence. It must always be weighed against the various other sentencing purposes. Aside from deterrence, courts must also consider the principles of rehabilitation, protection of the community and just punishment. For this reason, it is important to thoroughly examine the specifics of the offender’s circumstances and the nature of the offending behaviour to ensure that all able the proper addressing of all not just selected sentencing purposes.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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