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

Challenges in translating scientific evidence into mandatory food fortification policy: an antipodean case study of the folate- neural tube defect relationship

Objective: To identify challenges in translating scientific evidence of a  nutrient and health relationship into mandatory food fortification policy.
Design: A case study approach was used in which available evidence  associated with the folate–neural tube defect relationship was reviewed against the Australia New Zealand Food Regulation Ministerial Council's Policy Guideline for mandatory food fortification. Results: Three particular challenges were identified. The first is knowing when and how to act in the face of scientific uncertainty. The second is knowing how to address the special needs of at-risk individuals without compromising the health and safety of the population as a whole. The third is to ensure that a policy is sufficiently monitored and evaluated. Conclusions: Despite the availability of compelling evidence of a relationship between a particular nutrient and a health outcome, a definitive policy response may not be apparent.  Judgement and interpretation inevitably play significant roles in influencing whether and how authorities translate scientific evidence into mandatory food fortification policy. In relation to the case study, it would be prudent to undertake a risk–benefit analysis of policy alternatives and to implement nutrition education activities to promote folic acid supplement use among the target group. Should mandatory folate fortification be implemented,  comprehensive monitoring and evaluation of this policy will be essential to know that it is implemented as planned and does more good than harm. In relation to mandatory food fortification policy-making around the world,  ongoing national nutrition surveys are required to complement national policy guidelines.

Assessing the case for mandatory folate fortification : policy-making in the face of scientific uncertainties

This paper presents the view that policymakers face scientific uncertainties in assessing the case for mandatory folate fortification as a policy response to epidemiological evidence of the relationship between folate and neural tube defects. Moreover, the resolution of these uncertainties is confounded by the under-resourced state of nutrition information systems in Australia and New Zealand. The uncertainties relate to potential risks and benefits associated with the intervention for the target group and the population in general. These risks and benefits reflect the mismatch between evidence and policy that arises when addressing a presumed genetic abnormality in at-risk individuals with an intervention that is population-wide in its scope. There is an urgent need to conduct ongoing national nutrition surveys and monitor and evaluate policy interventions to strengthen the capacity of nutrition information systems to inform decision-making for this current, and future, public health nutrition policy.

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.

Assessing the likely impact of mandatory residential sessions for engineering and technology students

Off-campus students are important to the Deakin School of Engineering and Technology – in 2003, 47.5 % of all enrolments in the main engineering and technology Bachelor courses were off-campus students. In 2005, the School will be compelled, for professional accreditation, to introduce annual two-week mandatory residential sessions into its engineering and technology courses. In 2004, prior to its implementation, the impacts of the introduction of a mandatory on-campus residential element into engineering and technology courses were unknown. This research project sought to understand these impacts, so that strategies could be developed to minimise the likely impact of these changes. In engineering, off-campus study is an essential element of access to education for those in remote locations and/or seeking to upgrade their qualifications whilst employed. There was very little support from any students (on- or offcampus) for the introduction of residential sessions. The School should expect that the introduction of mandatory residential sessions will reduce the number of off-campus students enrolling to study engineering and technology.

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.

Mandatory fortification with folic acid: what would hippocrates say?

In October 2006, the Australian and New Zealand Food Regulation Ministerial Council asked for a review of the proposed food standard permitting mandatory fortification of bread with folic acid. This article contributes to the policy debate associated with the standard’s review by discussing the potential benefits and risks to the target population and the wider Australian population with emphasis on recent (2006) literature.