Linkages: Mabo and the sentencing of indigenous offenders

The ground breaking decision by the High Court of Australia in Mabo v Queensland (No 2) overturned the principle of terra nullis as a legal fiction. It paved the way for a reconsideration of property law. Mabo arguably has significance beyond native title and property law to other areas of the law. This article examines the 'linkage' between the decision in Mabo and the criminal law and, in particular, the punishment of indigenous persons, it addresses the following question: Can a significantly distant temporal and physical act of dispossession as was recognized in Mabo have any relevance to contemporary questions of the punishment of indigenous persons?

Doing harder time : the effects of imprisonment as a factor in sentencing

A strong link between the offender’s ill-health and the likely adverse effects of imprisonment needs to be made if the court is to be persuaded that this should be a mitigating factor in sentencing.

Scientific proof that humans enjoy punishing wrongdoers: The implications for punishment and sentencing

Recent developments in brain science confirm that as a race we are in fact a punitive lot. Human beings actually derive pleasure from inflicting punishment on wrongdoers. We are wired in such a way that the part of our brain that reports pleasure is activated when we punish norm violators. This is even when punishment has no tangible or demonstrable benefits. However, we are not slaves lo our emotions. Another region of our brain 'kicks-in' if punishment becomes self-defeating, in that it conflicts with our other interests. The implications of this research for punishment theory and the practice of sentencing are discussed in this paper. The findings give qualified support to the theory known as intrinsic retributivism, but do not suggest it is the soundest theory of punishment. This is because we stop punishing when it comes at a cost to us. The good feeling that punishment invokes in punishers is another consequential consideration in favour of the utilitarian theory of punishment. However, it is not clear that the utilitarian calculus is necessarily affected by the findings. The main implication of the research findings relates to the relevance of public opinion to sentencing practice. The findings support the view that public sentiment, which seems to support increasingly tougher sanctions, can be curtailed of the public are informed that punishment comes of a cost to community.

Models of understanding criminal behaviour and the sentencing process : a place for criminological theory?

The method by which a sentencing court understands the reasons for the commission of a criminal offence is crucial to the framing of the ultimate disposition imposed in all of the circumstances of the offence and the offender. Under Australian criminal law the insights of criminology are rarely. if ever. used in the discharge of the sentencing function. In particular, theories of crime causation evident in schools of criminological thought are not relied upon even though ostensibly such theories would appear to have a degree of relevance to the sentencing task. In this article, a short sketch of contemporary criminological theory is provided. This is followed by a survey of the use of criminological theory under Australian criminal law and what role, if any, it plays in contemporary  criminal justice administration. Finally, consideration is given as to whether or not criminological theory would be of assistance in the discharge of the  sentencing task in relation to not only understanding the reasons for the commission of the offence by the offender, but also in the determination of the appropriate sanction.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Assessing the likely impact of mandatory residential sessions for engineering and technology students

Off-campus students are important to the Deakin School of Engineering and Technology – in 2003, 47.5 % of all enrolments in the main engineering and technology Bachelor courses were off-campus students. In 2005, the School will be compelled, for professional accreditation, to introduce annual two-week mandatory residential sessions into its engineering and technology courses. In 2004, prior to its implementation, the impacts of the introduction of a mandatory on-campus residential element into engineering and technology courses were unknown. This research project sought to understand these impacts, so that strategies could be developed to minimise the likely impact of these changes. In engineering, off-campus study is an essential element of access to education for those in remote locations and/or seeking to upgrade their qualifications whilst employed. There was very little support from any students (on- or offcampus) for the introduction of residential sessions. The School should expect that the introduction of mandatory residential sessions will reduce the number of off-campus students enrolling to study engineering and technology.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

Mandatory fortification with folic acid: what would hippocrates say?

In October 2006, the Australian and New Zealand Food Regulation Ministerial Council asked for a review of the proposed food standard permitting mandatory fortification of bread with folic acid. This article contributes to the policy debate associated with the standard’s review by discussing the potential benefits and risks to the target population and the wider Australian population with emphasis on recent (2006) literature.

Mandatory folate fortification - will benefits outweigh risks?

The article considers the concerns raised about the implementation of mandatory food fortification in Australia. Mandatory food fortification, the compulsory addition of nutrients to food products, is a powerful policy approach for public health nutrition. The danger in exposing every Australians to increased amounts of nutrients is discussed. Mandate folate fortification is being assessed by Food Standards Australia New Zealand due to the increased cases of neural tube defects in Australia.

Immortality and sentencing law

The time may not be far away where we may be able to live much longer than we do now – potentially forever. This will have an enormous impact on the way people live their lives as the underlying premise that life is finite underpins many of the central decisions and life choices we make. This paper outlines some philosophical and legal doctrines that are based on the premise that life is finite and some of the changes that may need to occur in light of medical advances in ageing. In particular, it focuses on the changes to sentencing law that may be necessary to accommodate increased human longevity. For the skeptics who refuse to accept the concept of immortality, the arguments presented do not depend on living forever. Some of the issues discussed here are also relevant, albeit in an attenuated manner, because of increases in human longevity that have occurred in the last 100 years.