1. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Faculty of Law Theories of sentencing: punishment and the deterrent value of sentencing Presenter: Professor Kate Warner, UTas.

2. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Introduction 1.(Very) brief historical introduction to the theories. 2. Australian sentencing legislation: e.g. Sentencing Act 1991 (Vic) s 5(1): to punish to the extent and manner it is just in all the circumstances; to deter the offender or others; denunciation; rehabilitation; to protect the community. 3. Outline and overview of argument.

3. Sentencing: From theory to practice, Canberra, 8-9 February 2014 General deterrence in sentencing decisions General deterrence is a very popular sentencing rationale. In R v Harrison (NSW CCA) Hunt CJ at CL went so far as to say: Except in well-defined circumstances such as youth or the mental capacity of the offender … public deterrence is generally regarded as the main purpose of punishment …

4. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Courts sometimes acknowledge the limitations of general deterrence: e.g. King CJ in R v Dube admitted that there is no clear evidence that increased levels of punishment have any effect upon the prevalence of crime. But, he added: The criminal justice system has always proceeded upon the assumption that punishment deters …. and that the proper response to increased prevalence of a crime of a particular type is to increase the level of punishment for that crime.

5. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Where general deterrence if of little (or less) weight: When the offender is mentally ill or disabled, he or she is an inappropriate vehicle for deterrence (R v Verdins (VSCA)): because public will understand that their culpability is limited; because general deterrent sentence on such a person would have no deterrent impact (lesson learnt won’t be perceived as being applicable to others who don’t have such a disability).

6. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Courts embrace general deterrence General deterrence most frequently used aim in practice in Queensland (Mackenzie 2005). Crown appeals in Victoria: failure to give sufficient weight to general deterrence raised as a ground of appeal in 73.5% of appeals - successful in 44% of cases (Ritchie 2011).

7. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Does general deterrence work? Absolute deterrence works: the absence of any punishment structure – criminal prohibitions, police, courts and sanctions would reduce compliance with the law (e.g. police strikes in Melbourne in 1923 which led to widespread property damage and looting; imprisonment of Danish police force in 1944; English riots of 2011).

8. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Does general deterrence work? Marginal deterrence: do harsher sentences deter? Most reviews support the claim that there is no evidence that harsher penalties deter (Doob and Webster 2003; Ritchie 2011).

9. Sentencing: From theory to practice, Canberra, 8-9 February 2014 The conditions for effective deterrence The risk of detection must not be thought to be too remote; the penalty should be publicised adequately so that it is known to potential offenders; the penalty must be perceived as a deterrent; and potential offenders must weigh the risks rationally.

10. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Why do courts continue to embrace general deterrence? The intuitive appeal of general deterrence? They feel obliged to because statute requires it. Failure to rely upon it could be a ground of appeal. use of ‘deterrence speak’ – rhetoric to support a proportionate sentence.

11. Sentencing: From theory to practice, Canberra, 8-9 February 2014 The costs of relying upon general deterrence It makes false promises to the community. It distracts attention from other more effective options to tackle the crime. It encourages penal populism and calls for harsher sentences such as mandatory sentences.

12. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Can courts reduce reliance on general deterrence? Abandon the suggestion that the severity of the penalty reduces crime. If general deterrence reasoning is used, confine it to absolute or system deterrence. Think and speak carefully when using deterrence reasoning and avoid ‘deterrence speak’.

13. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Do members of the public embrace general deterrence as a sentencing purpose? Indermaur (1990) found that for the violent offence scenario preferences for incapacitation and retribution accounted for almost two thirds of the responses. In a more recent national survey of 800 randomly selected Australians, using 8 scenarios, general deterrence was endorsed as the most important purpose by only 10%.

14. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Do members of the public embrace general deterrence as a sentencing purpose? Tasmanian jury sentencing study: punishing the offender (40%) most important followed by specific deterrence (22%) and denunciation (11%). General deterrence was ranked at under 10%. International studies: retribution seems the most popular choice at least for crimes like burglary and robbery.

15. Sentencing: From theory to practice, Canberra, 8-9 February 2014 Conclusion The evidence fails to support a relationship between sentence severity and crime reduction. Reliance on general deterrence as a justification for a particular sentence comes at a significant cost. Courts should curtail their reliance on general deterrence and instead use language which reflects the seriousness of the offence and a punishment that reflects this.