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".

The children's court of South Australia

This chapter provides an overview of the history and development of the Youth Court in South Australia. Drawing on interviews conducted with judicial officers and Court stakeholders, we highlight some of the changes that have taken place since the Court’s inception, as well as how the Court currently understands its role and positioning within the broader justice and welfare systems.

Key discussion points of these interviews included the Youth Court’s guiding principles and how they impact on Court procedures and responses to young people in the system, as well as the challenges that limit, or create dif fi culties for, the effective operation of the Youth Court.

It is concluded that the Youth Court system attempts to balance both welfare and justice approaches to dealing with young people, but these approaches are sometimes hindered in practice by inadequate procedural, structural and resource- related factors. Limitations of the Court and its processes are often difficult to evaluate in isolation from the broader system in which the Court is positioned.

The implications of jail time discounting for court sentences

Specific and marginal general deterrence are being increasingly discredited as useful sentencing objectives. One reason is that offenders discount jail time, sometimes quite substantially. As a consequence, there is a significant difference between the court's sentence and the effective penalty. The latter is the offender's perceived duration of the time in jail. Discount rates, which perhaps can be thought of as a measure of acclimatisation to the prison experience, potentially weaken considerably the likelihood of successfully attaining the objective of specific deterrence. In addition, since jail time discount rates increase as the sentence length increases, punishment burden increases less than proportionately. This means that successfully achieving marginal deterrence is even more problematical. Using New South Wales data for three different offences, mean estimates of jail time discount rates are obtained, and then used to adjust downwards court sentences and estimate their effective equivalents. Effective sentence elasticities are then computed to gauge the impact of sentence doubling. Very low values are obtained. The critical implications for sentencing suggested by this study are, first, that absolute general deterrence and specific deterrence are realistic sentencing objectives. Marginal deterrence, however, does not seem to be attainable, given the ubiquity of positive time preference. Secondly, subject to the proportionality constraint, relatively shorter sentences are likely to be more punitive than longer ones, and therefore more effective as specific deterrents.