Tough, tougher, toughest? A new government’s approach to sentencing laws in Victoria

When in opposition, Victoria¹s Liberal/National coalition made a number of commitments to be 'tough on crime'. After winning the 2010 state election, the Government arguably reformed sentencing laws more quickly and more substantially in its first year of office than any other area of policy, with several key initiatives delivered or in train.

The Victorian experience exemplifies fast and forceful responses to perceived risks to community safety by new Australian Governments. While some political leaders have decried the 'law and order auction' approach by political parties, it remains a real tool in political discourse.

Some of these initiatives appear inconsistent with fundamental sentencing principles, and are designed more to address public perceptions which are disconnected from the realities of criminality and incidence of offending. A more appropriate basis for criminal justice policy may require Government to prioritise addressing the causes of offending behavior, rather than penalising consequences.

The High Court on crime in 2012 : outcomes and jurisprudence

This article examines the High Court decisions from 2012 which relate to criminal matters. This systematic analysis of all High Court judgments commenced in this Journal in 2010 and is now undertaken annually. The article explains the principles that derive from these cases and identifies jurisprudential themes from the decisions. It also sets out the significance of the cases and the possible wider consequences of the decisions.

The High Court on crime in 2014: Outcomes and jurisprudence

This article examines the Australian High Court decisions in 2014 which relate to criminal matters. This systematic analysis of all High Court judgments commenced in this Journal in 2010 and is now undertaken annually. The article explains the principles that derive from these cases and identifies jurisprudential themes from the decisions. It also sets outthe significance of the cases and the possible wider consequences of the decisions.

Jail up; crime down does not justify Australia becoming an incarceration nation

The imprisonment rate in Australia is at unprecedented high levels, both interms of actual prisoner numbers and the rate at which it is increasing. Forthe first time in recorded history the incarceration rate in Australia has morethan doubled in less than 25 years. Prison is the harshest form ofpunishment in our system of justice and imposes considerable hardship onoffenders. It also comes at a considerable financial cost to the community.Accordingly, the surge in prisoner numbers is a significant macro social,economic and legal development. The increase did not occur pursuant to anoverarching strategic plan and is an area that is under-researched. Theprison population increase has arisen as a result of a ‘tough on crime’approach that continues without any sign of abatement. The use ofimprisonment should only be increased if there is a demonstrable benefit tothe community. This article examines whether there is a sound rationalebehind the rising trend in prison numbers. The increasing incarceration ratehas coincided with a significant reduction in the crime rate. A causalconnection between the two events (increased prisoner numbers andreduced crime) could constitute a powerful argument in favour of the surgein prison numbers. However, an examination of the empirical data inAustralia fails to demonstrate even a tenable link between these events. Wealso conclude that at the theoretical level there is no rationale for theincreased use of imprisonment. If the imprisonment rate continues to rise,there is a risk of a prison and financial crisis similar to that currently beingexperienced in the United States, which has resulted in an extremecounter-reaction in the form of a retrospective reduction of some prison terms.

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".

Law-and-order politics, public-opinion polls, and the media

Over the past two decades, considerable political rhetoric has focused on the need to get tough on crime. Justification for this hard-line approach has been the public's apparent concem about rising crime rates and its increasing dissatisfaction with criminal sentencing. In this paper, we consider characteristics both of the measurement of public opinion and of the influences upon public opinion that may contribute to the depiction of a fearful, punitive community. In particular, we identify sources of bias in the methods and contexts of opinion-polling that promote a distorted representation of the discrepancy between community expectations of sentencing and the practices of the judiciary. We argue that the practices of pollsters, politicians, and media combine to create a self-sustaining obstacle to considered community discussion of crime and criminal sentencing.

A note on psychoanalysis and the crime of torture

Torture and the legitimate powers of the state - why are psychoanalysts involved - torture can be seen as an information gathering device - psychoanalysis may play a role in the creation of information gathering coercion techniques.

On the communal analysis suspicion scoring for identity crime in streaming credit applications

This paper describes a rapid technique: communal analysis suspicion scoring (CASS), for generating numeric suspicion scores on streaming credit applications based on implicit links to each other, over both time and space. CASS includes pair-wise communal scoring of identifier attributes for applications, definition of categories of suspiciousness for application-pairs, the incorporation of temporal and spatial weights, and smoothed k-wise scoring of multiple linked application-pairs. Results on mining several hundred thousand real credit applications demonstrate that CASS reduces false alarm rates while maintaining reasonable hit rates. CASS is scalable for this large data sample, and can rapidly detect early symptoms of identity crime. In addition, new insights have been observed from the relationships between applications.

Crime stories: posnerian pragmatism, Rawlsian pure procedural justice, and the fictional problem

There are many different ways in which law and truth may be said to be related. It is perhaps in the criminal trial that connections between them are of most significance. An orthodox way of describing a criminal trial is that the criminal procedure is seeking to establish the truth concerning some past event, and that success of the procedure is measured by how close its outcome converges with that truth. Criminal justice presents the community with challenging dilemmas in this regard, such as those arising from the notion of double jeopardy. This paper discusses the Rawlsian notions of 'imperfect', 'perfect' and 'pure' procedural justice, and suggests against Rawls that it is pure procedural justice that best represents what we want from a criminal justice system. Good procedure makes good criminal law. A comparison is made with the writings of Habermas and Posner, and given that pure procedural justice eschews transcendental truths, some brief comments are made on the convergence of that position with the realm of the fictional.

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.

Shaming, shame and recidivism : a test of reintegrative shaming theory in the white-collar crime context

Despite the popularity of reintegrative shaming theory in the field of criminology, only a small number of studies purporting to test it have been published to date. The aim of the present study, therefore, is to provide an empirical test of Braithwaite's (1989; Braithwaite and Braithwaite 2001) theory of reintegrative shaming in the white-collar crime context. The data on which the study is based came from survey data collected from a group of 652 tax offenders. Consistent with predictions, it was found that feelings of reintegration/stigmatization experienced during an enforcement event were related to reoffending behaviour. Those taxpayers who felt that their enforcement experience had been reintegrative in nature were less likely to report having evaded their taxes two years later. Consistent with Braithwaite and Braithwaite's (2001) hypotheses, shame-related emotions were also found to partially mediate the effect of reintegration on subsequent offending behaviour. Implications for the effective regulation of white-collar offenders are discussed.

Mental health promotion and socio-economic disadvantage: lessons from substance abuse, violence and crime prevention and child health

Issue addressed: Mental health promotion aimed at populations with low socio-economic status (SES) may benefit by investigating prevention strategies that effectively address related child and adolescent problems.
Methods: Evidence from a number of literature reviews and program evaluations was synthesised. First, the impact of SES on development from childhood to adulthood is considered in light of research on substance
abuse, violence, crime, and child development problems. Second, evaluations of interventions are reviewed to identify those that have shown outcomes in research studies (efficacy) or in real-world settings (effectiveness) in reducing developmental problems associated with low SES. Low SES is measured in different ways including low levels of education and/or income or definitions that combine several variables into a new indicator of low SES.
Results: Factors associated with low SES are also associated to varying extent with the development of violence and crime, substance abuse and child health problems. Interventions that address underlying determinants of low SES show strong efficacy in decreasing adolescent crime and violence and effectiveness in improving child health outcomes. Although there is limited efficacy evidence that substance abuse prevention can be effectively addressed by targeting low SES, programs designed to improve educational pathways show some efficacy in reducing aspects of adolescent substance use.
Conclusion: Mental health promotion strategies can draw on the approaches outlined here that are associated with the prevention of child and adolescent problems within low SES communities. Alternatively, such interventions could be supported in mental health promotion policy as they may assist in preventing related problems that undermine mental health.