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.

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.

The ethical, social and environmental reporting-performance portrayal gap

The purpose of this article is twofold. First, it assesses in detail the extent to which corporate reporting on ethical, social and environmental issues reflects corporate performance in case study company Alpha. This “reporting-performance” portrayal gap is a key measure of the extent to which an organisation is accountable to its stakeholders. Alpha's disclosures concerning its ethical, social and environmental performance for the years 1993 and 1999 were compared with information obtained on Alpha's performance from other sources. Two different pictures of performance emerged leading to the conclusion that, in the case of Alpha, reports do not demonstrate a high level of accountability to key stakeholder groups on ethical, social and environmental issues. Of particular concern is the lack of “completeness” of reporting. Second, the article assesses the potential of recent standards or guidelines developed by the Global Reporting Initiative (GRI) and the Institute of Social and Ethical AccountAbility (AccountAbility) as well as the industry's own “responsible care” initiative to reduce this “reporting-performance” portrayal gap and improve corporate accountability. The conclusions point to the need for other measures to improve accountability including mandatory reporting guidelines, better developed audit guidelines, a mandatory audit requirement for MNCs and a radical overhaul of corporate governance systems.

Towards manadatory shareholder committees in Australian companies

A common objective in recent Australian and international corporate governance reform programs is the enhancement of shareholder participation. Active shareholder involvement brings account- ability to the board and management, and is appropriate considering that shareholders are the ultimate owners of the company. Curiously, however, while shareholder participation and representation has become a priority in the contemporary corporate governance arena, the bulk of recent governance reform initiatives operate on the assumption that there is a clear separation of the board and management from the general body of shareholders, and that this is necessary to achieve optimal performance. The requirement that directors be 'independent' of the company and its shareholders is a prime example. In this article, the authors propose the establishment of a mandatory shareholder committee in Australian companies as a way of enhancing shareholder participation and representation.]

Criminal responsibility based on complicity among corporate officers

In a 2001 Issues Paper entitled 'Sentencing: Corporate Offenders', the New South Wales Law Reform Commission outlined a number of reasons for not ascribing liability to individuals within a corporation for unlawful acts arising from the operation of the corporation. One of the reasons raised in the Issues Paper, a reason traditionally used to avoid liability being imposed on individuals for corporate crimes, is that it is conceptually difficult to look behind the form to the substance of a corporate crime in order to establish liability for individual acts, when on the surface the unlawful conduct was caused by a corporation as a collective body. In this article, the authors challenge this position by suggesting that the doctrine of complicity can be used to [*2] pierce the corporate veil and direct criminal liability to those individuals who control the actions of the company. This proposition that company officers can be found liable pursuant to the principles regarding accessorial responsibility is not novel. However, what is unusual is the infrequency with which this wide ranging doctrine is applied in the corporate setting. The focus of this article is to underline the relevance of this doctrine to corporate offenders and, in the process, to assert that the problems of punishing corporate offenders are in principle no different to punishing other crimes which are committed by more than the one offender and can be addressed by the proper application of existing legal principles.

The need for a higher custody threshold for indigenous offenders in Victoria

Over-representation of indigenous persons in the criminal justice system has changed little since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) - claim by the Victorian Department of Justice that a key recommendation of RCIADIC had been implemented, namely that imprisonment should be a sentence of last resort for indigenous offenders - how to ensure that imprisonment is a sanction of last resort when indigenous prisoners present for sentence.

Literary concepts and the plea in mitigation

The article focuses on the plea in mitigation, one of the most common occurrences in the criminal justice system. Methods of approaching the plea in mitigation typically emphasize the need for the advocate to address the circumstances of the offence and offender. Typically, such matters are put forward as items on a list which the advocate must ensure are addressed during the plea in mitigation. Whilst it is important for those matters to be covered in providing the factual background, or context, of the offender and the offence, it is contended that in a plea in mitigation it is not sufficient nor adequate to simply present such matters to a judicial officer at sentencing and to allow those matters then to be assembled and interpreted by the sentencing judge.

Access and attitude of rural allied health professionals to CPD and training

Continuing professional development (CPD) activities for allied health professionals are becoming mandatory as a means for professionals to maintain accreditation or skills. To access CPD activities, rural allied health professionals have the added costs of travel, accommodation and information technology access. It is assumed that health professionals in rural areas want access to training and CPD. In 2003, a survey of allied health professionals was carried out in Southwest Victoria, Australia, with the aim of identifying access and attitudes to CPD. Results showed that allied health professionals in Southwest Victoria were highly qualified, wished to access CPD more than four times a year and were prepared to spend a mean rate of $1000 (1300) per annum on CPD activities.

Crown appeals against sentence in Victoria : results and implications of an empirical study

Empirical study between 2002 and 2004 on decisions of the Victorian Court of Criminal Appeal relating to sentencing appeals - increase in number of Crown appeals - possible reasons - increasing success of Crown appeals - implications for criminal justice system - higher success on the basis of manifest inadequacy for the Crown than for sentenced persons on the same ground of manifest excess - reconsideration of principles concerning Crown appeals.

Just deserts in post-colonial society : problems in the punishment of indigenous offenders.

Revised version of a paper presented to the Australian and New Zealand Society of Criminology Conference, Sydney, 2-3 October 2003 - disproportionate number of indigenous persons in the criminal justice system - the concept of 'just deserts' in regard to indigenous punishment - legislative reforms are needed to empower the judiciary in the sentencing process - must take account of the historical fact of dispossession - destructive effects on indigenous communities.

Baker v The Queen & Fardon v Attorney General for the State of Queensland

In 2004, the High Court of Australia had cause to revisit its 1996 decision in Kable, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of Fardon and Baker demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be "tough on crime". The so-called "Kable principle", as construed by the High Court in 2004, may prove to be the "constitutional watch dog that barks but once".

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.

Still plucking figures out of the air? Markarian and the affirmation of the instinctive synthesis

The High Court of Australia recently had the opportunity to reconsider the appropriate sentencing methodology to be adopted in the sentencing of offenders under Australian criminal law in the case of Markarian v The Queen. The High Court had to decide whether to continue with the instinctive synthesis approach to sentencing or a process that exposed in greater clarity the basis upon which sentencing was to occur. Ultimately, a majority of the Court favoured the continuance of the instinctive synthesis approach to sentencing in criminal cases. The article will consider the decision in Markarian and the implications that it will have for the sentencing of offenders in the States and Territories of Australia.

Nurses' perceived training needs in child protection issues

Purpose – The purpose of this research is to explore nurses' perceptions of their current skills and knowledge and training needs to identify cases of child abuse and their understanding of their roles and responsibilities in relation to child abuse. Nurses, including health visitors and midwives, have been recognised as having a key role in the protection and care of children, especially in identifying and referring possible cases of child abuse and neglect.

Design/methodology/approach – A structured questionnaire concerning knowledge and training needs in child protection was sent to all nurses employed in a Scottish NHS Primary Care Trust (approximately 1,900), of whom one-third (667) responded. These survey results were complemented by semi-structured interviews with 99 members of the nursing workforce.

Findings – Almost all training in child protection had been confined to health visitors, resulting in the Trust giving an implicit message that child protection is not a role in which other nurses need have any involvement. In general, those nurses who both worked with children and had involvement in child protection issues, considered themselves to be most in need of knowledge around child protection work, to have the greatest level of knowledge and to consider further training a priority.

Research limitations/implications – Nurses who had an interest or involvement in child protection work were more likely to participate in the research, which may have biased the results.

Practical implications – Training strategies need to address the diversity of nurses' involvements in child protection work through the development of training programmes which are appropriate for different workplaces and different occupational groupings. Nurses in some settings will need to be first convinced they have the potential to play an important role in protecting children from abuse and neglect.

Originality/value – Many NHS Trusts have in recent years introduced mandatory training in child protection for all staff in contact with children. However, previously published studies have considered training issues only in respect of nurses identified as working directly with children, whereas this study explores child protection issues for all nurses employed in a primary care NHS Trust.

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.