Sentencing in child sexual assault cases: factors influencing judicial decision-making

To date, there has been limited examination of variables that influence sentencing in child sexual abuse cases. This study examines the extent to which offence characteristics (such as the number of offences, number and age of victims), the behaviour and perceived credibility of the victim impact upon both sentence length and the setting of earliest parole dates. Analyses conducted using data from 66 adjudicated cases of child sexual assault from the County Court of Victoria, Australia revealed that longer sentences were handed down to offenders who had perpetrated multiple offences, or who had committed offences against younger children. Lower levels of victim credibility were associated with shorter sentences and earlier parole dates for offenders, which were also associated with the presence of more harmful behavioural indicators of abuse. The findings are discussed regarding the importance of presenting evidence about the behaviour of victims following sexual abuse in criminal trials. © 2013 Copyright National Organisation for the Treatment of Abusers.

Sentencing offenders with mental impairment: the case of arsonists with intellectual disability

Purpose: Offenders with intellectual disability (ID) who commit arson and other acts of fire setting are over-represented in the criminal justice system in Australia, as in many other jurisdictions. The purpose of this paper is to provide insight into the judicial considerations that influence sentencing in these cases. Design/methodology/approach: Case law was utilised to locate and analyse judges’ sentencing remarks for offenders with ID found guilty of an offence of arson. These data were subject to Inductive Content Analysis to establish the major judicial considerations in sentencing. Findings: Seven common issues emerged: general deterrence, seriousness of arson, rehabilitation, sentencing options, moral culpability, protection of the community, and punishment. Judges noted that they handed down reduced sentences to persons with ID relative to the severity of their offending, that they considered people with ID to have low levels of moral culpability, and that these offenders did not provide good examples for community deterrence. Originality/value: The current study highlights the need for judges to have available a range of sentencing options, including diversion and treatment/rehabilitation programmes for persons with ID, particularly for those involved in more serious offences such as arson.

When sexual infidelity triggers murder: Examining the impact of homicide law reform on judicial attitudes in sentencing

In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of ‘loss of control,’ applicable to England, Wales and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant’s culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

The fallacy of punishing offenders for the deeds of others: an argument for abolishing offence prevalence as a sentencing aggravating consideration

Sentencing outcomes are often marked by a considerable degree ofunpredictability. A key reason for this is the large number of aggravating andmitigating considerations, some of which have unstable questionablefoundation. This article argues that one well-established aggravating factor —offence prevalence — should be abolished. Pragmatically, the courts have notestablished workable criteria or a process for establishing whether an offence isprevalent. From a normative perspective, increasing the penalty for prevalentoffences is unsound because defendants should be punished for their acts, notthose of other offenders. Further, on close analysis, all of the rationales (in theform of general deterrence, denunciation and specific deterrence) invoked tojustify offence prevalence do not do so. Abolishing one sentencing variable willnot make sentencing a significantly more coherent or predictable discipline, butthe methodology applied in this article can be used to assess the viability ofother sentencing considerations.

The irrelevance to sentencing of (most) incidental hardships suffered by offenders

Criminal offenders often experience hardships beyond the imposition of a court-imposed sanction. These hardships typically take a variety of forms, but can be grouped into a number of relatively well-established categories, including loss of employment, public opprobrium and injuries sustained during or around the time of the commission of the crime. Other examples are deportation from Australia and the imposition of traditional forms of punishment.1 Collectively, these harms are termed incidental hardships or extra-curial punishment.2 Formally, extra-curial punishment is defined as a ‘loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his [or her] offence or at least by reason of the offender having committed the offence’.

Sober assessment of the link between substance abuse and crime-eliminating drug and alcohol use from the sentencing calculus

The relevance of drug and alcohol involvement to sentencing law and practice is one of the most perplexing and unsettled areas of sentencing law and practice.1 It is also one of the most important issues in the criminal justice system. Most crimes are committed by offenders who are substance involved, and nearly half of all crimes that are committed are done so by offenders who are intoxicated at the time of the offense. Substance involved individuals are grossly over-represented in the criminal courts. Addiction and intoxication impair sound judgment, and hence, it intuitively appears that intoxicated offenders are less culpable for their crimes. Moreover, there is often a sense that addiction and intoxication causes aberrant behavior and that curing the substance involvement will lead to more prudent (law-abiding) conduct.

Saving the United States from lurching to another sentencing crisis: taking proportionality seriously and implementing fair fixed penalties

We make recommendations regarding how the United States cansignificantly lower its incarceration rate, while at the same time ensuring that community safety is not diminished. Moreover, we identify and recommend a consolidation and extension of the positive aspects of the current sentencing regime.

Addressing the curious black spot that is the separation between the principle of legality and sentencing

The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of offenders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

The implementation of feminist law reforms: the case of post-provocation sentencing

In 2005 the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This paper analyses post-provocation sentencing judgments, reviewing cases over the 10 year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – picking up on the spirit of the reforms – which have been taken up by some judges more than others.

New criminal sanctions-inflicting pain through the denial of employment and education

Imprisonments and fines are the standard sanctions employed by most western countries in punishing offenders.  Where neither of these penalties is appropriate, the courts normally have a variety of indeterminate sanctions at their disposal.  However the general effectiveness of these sanctions is questionable.  This paper argues that the criminal justice system has been too slow and unimaginative in developing efficient and effective methods of punishing offenders.  There are ways of inflicting pain on offenders that do not encroach on their liberty or affect their material wealth.  It is suggested that new sentencing options should include the annulment or suspension of an offenders academic qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

The solution to the dilemma presented by the guilty plea discount : the qualified guilty plea - I'm pleading guilty only because of the discount..."

The guilty plea sentencing discount is arguably a triumph of expediency over principle. Strong utilitarian reasons favour providing less severe sentences to defendants who plead guilty. However, an unsavoury by-product of the guilty plea discount is that some innocent people are pressured into pleading guilty. This article suggests that a possible solution to the problems caused by the discount is to permit defendants to enter a ‘qualified guilty plea’. While formally amounting to a guilty of plea, the defendant would be permitted to advance submissions consistent with innocence as part of the plea in mitigation. If the sentencer is persuaded that the defendant had a tenable chance of an acquittal a penalty discount in excess of that available for merely pleading guilty would be conferred.

Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

What sort of mandatory penalties should we have?

The argument in favour of a widespread fixed penalty regime - adopting a primary rationale for punishment would facilitate a more coherent and exacting approach to sentencing - the central objections against fixed penalties are that they are too severe and lead to unfairness because they are unable to incorporate all the relevant sentencing variables - by adopting a utilitarian ethic as the primary rationale for punishment, these problems can be circumvented - no utilitarian justification for disproportionate punishment, and penalties should not exceed the seriousness of the offence - no foundation for most sentencing considerations - by disregarding irrelevant considerations, the remaining can be incorporated into a fixed penalty system - the way would then be open for a coherent sentencing law system in which criminal justice is governed by pre-determined rules and principles as opposed to the intuition of sentencers.

Home truths about home detention

The Victorian Parliament has recently introduced a Bill which implements home detention as a sentencing option. Home detention is an intuitively appealing reform. The logic behind the proposal seems obvious. Prisons are expensive to run. There are too many offenders in prison. So let's take the cost out of prison by turning the homes of offenders into prisons: classic, user-pays, cost-shifting economics. The level of superficial appeal of the argument in favour of home detention is matched only by the depth of the fallacies underpinning some of the fundamental premises. The most basic of which is the assumption that offenders who are candidates for the new sanction should be in detention (of any kind) in the first place. Further, the narrow objective of reducing imprisonment is misguided. It should not be elevated to a cardinal sentencing objective?otherwise total success could be achieved by simply opening the prison gates. There are also other concerns about the appropriateness of home detention. The degree of pain it inflicts in many cases is questionable and it may also violate the principle that punishment should not be inflicted on the innocent. After examining the arguments for and against home detention, this article suggests the approach that should be adopted to achieve enlightened and meaningful sentencing reform.

Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of education qualifications

Fines are the standard sanctions employed by most Western countries when a corporation has been convicted of a crime. However, some offences committed by corporations are too serious to be dealt with by way of a fine. There is a need to consider other sanctions that can be invoked in order to deter corporate crime. In this article, it is suggested that the focus should be on criminal sanctions against the natural persons who can potentially commit crimes on behalf of a corporation. New sentencing options against those who can potentially commit crimes on behalf of a corporation should include the annulment or suspension of an offender's academic  qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.