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  • 08 Crime and Punishment
  • How does the court reach a sentencing decision?
  • Sentencing
  • To punish or not to punish
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To punish or not to punish

Under the Sentencing Act 1997, courts must consider several primary purposes of sentencing. On the one hand we have retribution, denunciation, and deterrence, and on the other hand we have rehabilitation. Overarching all of these purposes is protection of the community, because all of these purposes must in some way further the protection of the community, and as an important but not central consideration are the interests of victims.

While retribution, denunciation and deterrence are all important considerations in sentencing an adult, in practice, sentencing judges have a wide discretion, which, depending on the circumstances, may see the courts place rehabilitation as an important sentencing consideration. The nature or character of the offender and the offence may influence the court to suspend a sentence, or not record a conviction, or simply impose a fine, because the rehabilitation and reintegration of the offender back into society is more important than punishment. All of this is highly circumstantial, and cannot be quantified. A sentencing judge does not take one pinch of deterrence, two pinches of denunciation, and half a spoon of rehabilitation. The process of ‘instinctive synthesis’ cannot be quantified, but the sentencing comments provided by a sentencing judge can qualify the reasoning behind the decision, and will often mention the purposes of sentencing that were taken into account in sentencing, as well as the circumstances of the offence and the offender.

To punish or not to punish?

Public opinion is often sought on the subject of whether sentences for crimes are satisfactory. The answer is often no. The media representation of crime is that the system fails to punish offenders for wrongdoing. Crime and punishment is not this simple. A court will consider a range of factors in sentencing, and there are principles that govern sentencing, just as gravity governs the way we stick to the surface of the planet, there are certain principles of sentencing that must be applied. These principles prevent a sentence being “crushing” on an offender, or ensure that the punishment fits the crime, according to all considerations of sentencing. But punishment and retribution are not the only considerations that a judge must take into account.

Often, people are simply unaware of the types of sentences that are handed down on offenders, in particular sex offenders and violent offenders. They think ‘oh, well the media shows so much crime happening, criminals must not be punished hard enough to prevent them and others from offending.’ The truth is that criminal behaviour is often more complex than a simple predisposition to crime, the ‘us and them’ view is not accurate at all.

Similarly, people are often unaware of the fact that prison has a known criminogenic effect – this means that imprisonment is more likely than other sentencing options to encourage continuing criminal behaviour. This is why, while in prison, some prisoners can participate in programs for rehabilitation, learn new skills, and gain an education – in order to send back into the community men and women who can reintegrate and not want to offend again.

The question is: once you’ve punished someone, what do you do with him or her? The answer is – reintegrate them into the community.

Page last updated 14/12/2017

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