First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing

Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependents? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, those who have made a positive contribution to society, or who have dependents more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses offenders to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependents and if imprisoning them is likely to cause harm to their dependents. Conferring asentencing discount to first-time offenders and those withdependents does not license them to commit crime or unjustifiablyencroach on the proportionality principle. Rather, it recognizes thedifferent layers of the legal system and the reality that sentencinglaw should not reflexively overwhelm broader maxims of justice,including the principle that innocent people should not suffer. Thisarticle argues that fundamental legislative reform is necessary toproperly reflect the role that the profile of offenders should have inthe sentencing regime.

Bushfire catastrophe in Victoria, Australia : public record, accountability, commemoration, memorialization and heritage protection

In Australia, 7 February 2009 has become known as ‘Black Saturday’ because of the bushfire catastrophe that took 173 lives and devastated communities in the central parts of the State of Victoria. The paper considers how the 2009 fires have been recorded, how the issue of accountability has been dealt with, particularly in relation to the State and its agencies but also individual residents in the fire-devastated areas, and how bushfire deaths and other losses have been commemorated through remembrance events and museum collection projects and memorialized through the creation of new monuments and the protection of remaining physical structures as official heritage. Despite the major impact of bushfires on the State, to date few bushfire-related places have been protected. The former Cockatoo Kindergarten, which acted as a community refuge during an earlier catastrophic Victorian bushfire on Ash Wednesday, 16 February 1983, is an exception. Inscribed in 2012, the former kindergarten is the only bushfire-related place inscribed on the Victorian Heritage Register, in this case for its historical and social value as a place resonating with other communities affected by other bushfires and helping the broader Victorian public to come to terms with bushfire catastrophe. But, while bushfire commemoration activities and physical memorials, like those relating to war, help many societies remember individual and community pain and suffering, they can divert attention from the more fundamental questions of why they were there in the first place and what must be done to ensure the same catastrophe does not recur in the future. In this regard, the paper questions the oft-cited claim that bushfires are embedded in the Australian psyche, seeing links between the rhetoric around bushfire survival and Australian myth-making and nation-building.