Mandatory jury directions in sexual assault trials in Victoria: less a model than a cautionary tale?

 Jury directions in relation to the issue of consent in trials of sexual offence cases are mandated in two jurisdictions in Australia (Victoria and the Northern Territory). The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has recommended that provisions similar to those in Victoria should be contained in relevant legislation in all States and Territories. However, a recent series of cases in Victoria has revealed significant problems in relation to the mandatory jury directions. These difficulties have generated increasingly elaborate and complex directions. The complexity of these directions not only presents considerable challenges for judges but also may overwhelm, rather than assist, members of the jury. The Court of Appeal of Victoria has called for “urgent and wholesale reform”. In the light of these concerns, it is suggested that the Victorian mandatory directions do not provide a model for other jurisdictions. Rather, the Victorian experience can be seen as a cautionary tale of the problems and pitfalls of such directions. Recently, the Victorian government has passed the Jury Directions Act 2013. This Act sets out “guiding principles” that should determine the content, and use, of jury directions. These guiding principles should form the basis for any jury directions with respect to sexual offences.

First-time offender, productive offender, offender with dependents: why the profile of offenders (sometimes) matters in sentencing

Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependents? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, those who have made a positive contribution to society, or who have dependents more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses offenders to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependents and if imprisoning them is likely to cause harm to their dependents. Conferring asentencing discount to first-time offenders and those withdependents does not license them to commit crime or unjustifiablyencroach on the proportionality principle. Rather, it recognizes thedifferent layers of the legal system and the reality that sentencinglaw should not reflexively overwhelm broader maxims of justice,including the principle that innocent people should not suffer. Thisarticle argues that fundamental legislative reform is necessary toproperly reflect the role that the profile of offenders should have inthe sentencing regime.

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 impact of mandatory versus voluntary auditor switches on stock liquidity: some Korean evidence

Using Korean listed firms subject to the auditor "designation rule", this paper shows that (1) firms that switch auditors exhibit lower stock liquidity than firms that do not switch auditors, and (2) the negative liquidity effect of auditor switches is concentrated in firms that switch to low-quality auditors. Meanwhile, firms that switch auditors under the auditor designation system do not exhibit lower stock liquidity, consistent with audit designation mitigating the concerns about audit quality deterioration around auditor changes. Furthermore, we find that foreign ownership has a mitigating impact on the negative relation between auditor switches and stock liquidity, suggesting that investors are less concerned about auditor switches when an alternative monitoring mechanism exists.

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.