What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals

As a result of the instinctive synthesis approach to sentencing, decisions are often based on the intuitive inclinations and sentiments of sentencers, as opposed to binding rules and principles. In particular, insufficient regard is paid to the purposes and objectives that can be achieved through a state-imposed system of punishment. Momentum is gathering for the High Court to revisit the manner in which the sentencing inquiry is undertaken. We believe that the court should use the opportunity to implement fundamental reform in sentencing and direct the sentencing process down a more transparent and forensic path. We suggest that there are seven basic steps that need to be undertaken to achieve enlightened sentencing reform. Ideally this is a role for the legislature. However, given the populist climate in which we live we have little confidence that the legislature will undertake such an exacting task – one which would almost certainly lead to a less severe sentencing regime. The judiciary offers the strongest hope that at least some of these steps will be taken. This article offers a blueprint for how such reform can be implemented. The first step is simply to assume that the institution of state-imposed punishment is justified – this has already been undertaken. The second is to select the theory which best justifies punishing wrongdoers. Thirdly, public opinion must be ignored in developing sentencing principle. Next it must be determined which objectives (such as deterrence and rehabilitation) can be achieved through sentencing. The fifth step involves matching the punishment to the crime. Step six is to critically analyse the foundation, and reassess the relevance, of the hundreds of aggravating and mitigating considerations that presently affect the sentencing calculus. Finally, sentencing law and practice should be subject to ongoing reform to take into account emerging empirical evidence concerning the positive benefits that can be achieved through sentencing.

Sentencing of indigenous offenders in Victoria

It is common knowledge, especially in the context of the findings of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC),' that indigenous persons are over-represented at all stages of the criminal justice system. Unfortunately, little has changed since the RCIADIC and indigenous representation in prisons throughout the states and territories of Australia remains at high levels. What has come to prominence since the RCIADIC, particularly through the findings of the Human Rights and Equal Opportunity Commission in the 1997 report Bringing Them Home, is the notion of the Stolen Generation. For practitioners with indigenous clients, an important matter that may be put in mitigation is the effect of belonging to the Stolen Generation in terms of offering not only an explanation for offending, but also in terms of submissions put forward on behalf of the client pertaining to disposition. In this context, the Victorian Court of Appeal decision in R v Fuller-Cust is an important one, particularly the dissenting judgment of Eames J. His Honour, in a persuasive and well-reasoned judgment, suggests a method of sentencing indigenous offenders that relates questions of Aboriginality, the Stolen Generation and punishment.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

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?

Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

Time to curtail summary dismissal in Australia

It is assumed that the right to summarily dismiss an employee for certain forms of misconduct is a fundamental legal right reposed in employers. It is argued that the scope of this right in Australia is too expansive and should be significantly curtailed. In its current form, the right to summarily dismiss employees offends several widely accepted legal and normative maxims and is incompatible with several behavioural norms. While this paper focuses on Australian summary dismissal law, the doctrinal analysis and the reform suggestions advanced in this paper are of relevance to all market economy jurisdictions. Studies of human well-being show that employment, independent of its wealth-creating aspect, is important to well-being. Matters that are central to a person's well-being should not be taken away readily. This moral prescription is given legal recognition by the legal principle of proportionality, which prescribes that there should be proportion between the punishment and harm caused by the wrongdoing. Moreover, it is not the case that a single impertinent act is defining of a person's character or necessarily evinces a predisposition to behave in a like manner in the future.

The execution of Van Nguyen: an Australian perspective

The execution of 25-year-old Melbourne man, Van Nguyen, by Singaporean authorities on 2 December 2005 for attempting to smuggle 400 grams of heroin out of Singapore was cruel. It was also futile. Yet, there are three important lessons that can be learned from his killing. The first lesson is that if Australia is to exert genuine moral pressure on nations to abolish the death penalty it must do so in a principled manner, rather than making expedient pleas when Australians happen to be on the wrong end of the cruel practice. Secondly, sentencing practice in Australia, while not condoning capital punishment, is unjustifiably punitive and we should ameliorate the harshness of some of our sentencing laws. Finally, the death of Nguyen, while tragic, was no more tragic than the millions of other preventable deaths that occur daily throughout the world. The compassion displayed toward Nguyen should be used as a catalyst for enlarging our sympathy gland in relation to all preventable deaths. I now discuss these in further detail.

Doping in sport: an economic analysis

This paper examines the impact of various regulatory policies on the decision to dope by athletes. The analysis suggests that punishment schemes involving lump-sum fines and bans, which are commonly used to control doping, create biases, and do not achieve their goal of levelling the playing field. Under plausible assumptions, these schemes are more likely to control doping for risk averse athletes compared to risk neutral ones, poorer athletes compared to their wealthier counterparts, and athletes with high earning potentials relative to those with lower potential. A marginal penalty scheme where athletes are fined based on the quantity of dope detected eliminates these biases, and emerges as a superior policy for levelling the playing field.

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.

Motivational processes associated with unhealthy body change attitudes and behaviours

Objective
The relationship between approach–avoidance motivational processes and unhealthy body change attitudes and behaviours was investigated.
Method
Self-reported sensitivity to rewards (SR) and sensitivity to punishments (SP) were measured for a convenience sample of 130 women, aged 18 to 40 years, along with measures of disordered eating symptomatology and exercise dependence.
Results
Together, SR and SP significantly predicted variance in drive for thinness (21%), bulimia (17%), and obligatory exercise (7%). These relationships were partly mediated by internalization of the thin ideal, body comparison, and subjective importance of achieving one's ‘ideal’ body and of avoiding one's ‘worst possible’ body. Interestingly, body dissatisfaction partly mediated the relationships involving SP but not SR.
Discussion
The results suggest that an underlying sensitivity to punishments, but not rewards, can manifest as a ‘fear of fatness’. Both of these motivational traits can increase the salience of self evaluations, and thus indirectly contribute to unhealthy body change attitudes and behaviours.

Personality, behavioural and affective characteristics of hazardous drinkers

The aim of this study was to investigate the influence of appetitive and aversive motivation on hazardous drinking behaviour by drawing on Reinforcement Sensitivity Theory (RST). A between-groups design examined differences between hazardous drinkers and matched controls on self-report and behavioural appetitive and aversive motivation. The relationship between motivational processes and changes in affective states following behavioural task performance was also examined. Data from 27 hazardous drinkers (M = 21.88 years, SD = 3.29) and 27 gender and age matched controls (M = 21.85 years, SD = 4.08) were utilised. The Card Arranging Reward Responsivity Objective Test (CARROT) assessed behavioural appetitive motivation and the computerised Q-TASK provided an index of behavioural aversive motivation. Self-report appetitive and aversive motivation was measured using the Sensitivity to Punishment and Reward Questionnaire (SPSRQ). Brief scales tapping state positive and negative affect were also administered. Hazardous drinkers were significantly higher than controls on self-report but not behavioural measures of appetitive motivation. Results also indicated that hazardous drinkers reported significantly higher levels of negative affect. These data suggest that hazardous drinkers are characterised by high trait appetitive motivation and state negative affect. It was suggested that RST may provide a useful framework for understanding both the appetitive and aversive motivational processes involved in drinking behaviour.

Taxation threat, motivational postures, and responsive regulation

The central proposition of motivational posturing theory is that regulatees place social distance between themselves and authority, communicating the nature of that distance through a narrative that protects the self from negative appraisal by the authority. One of the key components of posturing is the coping sensibility that individuals adopt to manage the threat of authority. At a baseline level, authorities make demands on citizens and as such threaten individual freedom. At the highest level, authorities threaten through punishment for non-compliance. Data collected from 3,253 randomly selected Australian taxpayers and a special group of 2,292 taxpayers in conflict with the tax authority are used to show that in both groups, three coping sensibilities contribute to posturing ("thinking morally,""feeling oppressed," and "taking control"), and that all three sensibilities are significantly heightened in the group experiencing conflict with the authority. The article argues that the most effective regulatory outcome is achieved when the regulatory process can dampen the "taking control" and "feeling oppressed" sensibilities, and strengthen the "thinking morally" sensibility. Responsive regulation is an approach that encourages tax authorities to read motivational postures, understand the sensibilities that shape them, and tailor a regulatory intervention accordingly.

A cross-national comparison of school drug policies in Washington State, United States, and Victoria, Australia

Using mail survey data collected from primary and secondary school administrators in Washington State, United States, and in Victoria, Australia, this study compared aspects of the school drug policy environment in the 2 states. Documented substance-use policies were prevalent in Washington and Victoria but less prevalent in primary schools, especially in Victoria. Victorian school policy-setting processes were significantly more likely to involve teachers, parents, and students than processes in Washington schools. Consistent with expectations based on their respective national drug policy frameworks, school drug policies in Washington schools were more oriented toward total abstinence and more frequently enforced with harsh punishment (such as expulsion or calling law enforcement), whereas policies in Victorian schools were more reflective of harm-minimization principles. Within both states, however, schools more regularly used harsh punishment and remediation consequences for alcohol and illicit-drug violations compared to tobacco policy violations, which were treated more leniently. (J Sch Health. 2005;75(4):134-140)

Parenting style as a moderator of the effect of temperament on adolescent externalising and internatlising behaviour problems

The direct and interactive effects of temperament and parenting were examined in the prediction of early adolescent externalising behaviour problems (conduct disorder and hyperactivity), internalising problems (depression and anxiety), and substance use, using data on 1,402 13- and 14-year-olds. Significant direct effects were found for four temperament factors (negative reactivity, task persistence, activity, and approach), and four parenting factors (warmth, power assertion, physical punishment, and monitoring). For those high in persistence, low in negative reactivity, or low in activity, problem outcomes were generally very rare, regardless of parenting. Prevalence of behaviour problems was generally elevated among those low in persistence, high in negative reactivity, or high in activity, even in cases where parenting was high in positive qualities such as warmth and monitoring. Prevalence of certain behaviour problems was substantially elevated when low persistence, high negative reactivity, or high activity occurred in combination with lower parental warmth or lower monitoring. The results suggest that parenting can play an important moderating role in the relationship of particular temperament characteristics to behavioural problems. [Author abstract]