Sentencing of indigenous offenders in Victoria

It is common knowledge, especially in the context of the findings of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC),' that indigenous persons are over-represented at all stages of the criminal justice system. Unfortunately, little has changed since the RCIADIC and indigenous representation in prisons throughout the states and territories of Australia remains at high levels. What has come to prominence since the RCIADIC, particularly through the findings of the Human Rights and Equal Opportunity Commission in the 1997 report Bringing Them Home, is the notion of the Stolen Generation. For practitioners with indigenous clients, an important matter that may be put in mitigation is the effect of belonging to the Stolen Generation in terms of offering not only an explanation for offending, but also in terms of submissions put forward on behalf of the client pertaining to disposition. In this context, the Victorian Court of Appeal decision in R v Fuller-Cust is an important one, particularly the dissenting judgment of Eames J. His Honour, in a persuasive and well-reasoned judgment, suggests a method of sentencing indigenous offenders that relates questions of Aboriginality, the Stolen Generation and punishment.

The sentencing advisory commission and the hope of smarter sentencing

Sentencing law practice - confused and incoherent Sentencing has been described as the 'high point in anti-jurisprudence' (Smith 1997:174). This comment reflects the fact that sentencing law is devoid of an overarching rationale. It is marked by a high degree of discretion and is shaped more by political expedience and intuition than informed inquiry and principle. The fact that sentencing is 'the most controversial and politically sensitive aspect of the criminal law' (Freckleton 1996:ix) has militated heavily against it being developed in a coherent and principled manner.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

The evolution of sentencing

The Sentencing Advisory Council's addition to the Victorian Criminal Justice landscape opens the way for Victorian sentencing law and practice to become a more socially acceptable, constructive, and forensic practice, this article suggests a blueprint for a more coherent and justifiable system of sentencing

Linkages: Mabo and the sentencing of indigenous offenders

The ground breaking decision by the High Court of Australia in Mabo v Queensland (No 2) overturned the principle of terra nullis as a legal fiction. It paved the way for a reconsideration of property law. Mabo arguably has significance beyond native title and property law to other areas of the law. This article examines the 'linkage' between the decision in Mabo and the criminal law and, in particular, the punishment of indigenous persons, it addresses the following question: Can a significantly distant temporal and physical act of dispossession as was recognized in Mabo have any relevance to contemporary questions of the punishment of indigenous persons?

Doing harder time : the effects of imprisonment as a factor in sentencing

A strong link between the offender’s ill-health and the likely adverse effects of imprisonment needs to be made if the court is to be persuaded that this should be a mitigating factor in sentencing.

Scientific proof that humans enjoy punishing wrongdoers: The implications for punishment and sentencing

Recent developments in brain science confirm that as a race we are in fact a punitive lot. Human beings actually derive pleasure from inflicting punishment on wrongdoers. We are wired in such a way that the part of our brain that reports pleasure is activated when we punish norm violators. This is even when punishment has no tangible or demonstrable benefits. However, we are not slaves lo our emotions. Another region of our brain 'kicks-in' if punishment becomes self-defeating, in that it conflicts with our other interests. The implications of this research for punishment theory and the practice of sentencing are discussed in this paper. The findings give qualified support to the theory known as intrinsic retributivism, but do not suggest it is the soundest theory of punishment. This is because we stop punishing when it comes at a cost to us. The good feeling that punishment invokes in punishers is another consequential consideration in favour of the utilitarian theory of punishment. However, it is not clear that the utilitarian calculus is necessarily affected by the findings. The main implication of the research findings relates to the relevance of public opinion to sentencing practice. The findings support the view that public sentiment, which seems to support increasingly tougher sanctions, can be curtailed of the public are informed that punishment comes of a cost to community.

Models of understanding criminal behaviour and the sentencing process : a place for criminological theory?

The method by which a sentencing court understands the reasons for the commission of a criminal offence is crucial to the framing of the ultimate disposition imposed in all of the circumstances of the offence and the offender. Under Australian criminal law the insights of criminology are rarely. if ever. used in the discharge of the sentencing function. In particular, theories of crime causation evident in schools of criminological thought are not relied upon even though ostensibly such theories would appear to have a degree of relevance to the sentencing task. In this article, a short sketch of contemporary criminological theory is provided. This is followed by a survey of the use of criminological theory under Australian criminal law and what role, if any, it plays in contemporary  criminal justice administration. Finally, consideration is given as to whether or not criminological theory would be of assistance in the discharge of the  sentencing task in relation to not only understanding the reasons for the commission of the offence by the offender, but also in the determination of the appropriate sanction.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

Immortality and sentencing law

The time may not be far away where we may be able to live much longer than we do now – potentially forever. This will have an enormous impact on the way people live their lives as the underlying premise that life is finite underpins many of the central decisions and life choices we make. This paper outlines some philosophical and legal doctrines that are based on the premise that life is finite and some of the changes that may need to occur in light of medical advances in ageing. In particular, it focuses on the changes to sentencing law that may be necessary to accommodate increased human longevity. For the skeptics who refuse to accept the concept of immortality, the arguments presented do not depend on living forever. Some of the issues discussed here are also relevant, albeit in an attenuated manner, because of increases in human longevity that have occurred in the last 100 years.