Public opinion and sentencing

Don’t believe everything you read, hear or see in the media about crime. Stories of crime, graphic physical or sexual violence, violations of privacy and home security are all far more likely to move newspapers or magazines than the stories that statistics tell: crime is not increasing, humans are no more brutal with each passing year than they were the year before, rehabilitation decreases criminal behaviour, and courts are not letting criminals roam the streets just for fun.

There are isolated incidents where shocking crimes happen because a person has been released from imprisonment – the rape and murder of Jill Meagher in Victoria is a recent and tragic example. But, overall, the types of crime of which we are afraid – violence to the person or a violation of our privacy and belongings by a stranger, happen very infrequently.

The criminal justice system is not in place to sentence a person to transportation for life because they stole a lace handkerchief, or stole your television. Nor is it meant to keep people locked up forever just because they are difficult people for most people to like. The criminal justice system is in place to give just punishment, and provide opportunities in prison to rehabilitate, in the hopes that it will prevent further offending. Unjust penalties are likely to cause more crime. Wouldn’t an unjust penalty make you feel badly treated, and less likely to fall into line with whoever punished you?

The ideas that underpinned old systems of punishment have given way to new theories, and new ideas about how to prevent crime. The criminal justice system is meant to deliver justice tempered with mercy. And in sentencing, a judge will take into account the circumstances of the offence and the offender to decide a fitting punishment. Sometimes, rehabilitation will be a significant factor, other times retribution will be the primary focus.

Generally, there is a low recidivism rate amongst offenders. Obviously, this is not always the case. Some people will always want to reoffend, or circumstances will bring about a high chance of reoffending. Some reoffending, such as theft or petty crimes, even family violence – result in suspended penalties, fines, community service orders, in an attempt to keep low-level offenders out of the criminal justice system. But some reoffending is of such a nature and magnitude that the State cannot risk reintroducing the offender into the community. This is why Tasmania, and most other Australian States and Territories, have dangerous criminal legislation, which allows for the ongoing detention of offenders who show no sign of rehabilitation or reintegration and continue to pose a threat to the community.

For most other offenders, ongoing detention is not going to be fair. It is easy to class someone according to the crime – ‘oh, he is a rapist’ or ‘she is a murderer’ or ‘he is a drug dealer’. But the fact is that very few people convicted of a serious offence go on to reoffend. Reoffending, otherwise known as ‘recidivism’ is only a low percentage – sometimes as low as 3 per cent of offenders.

When talking about habitual criminals it is easy to say ‘we should lock them up and throw away the key!’ Well, the fact is that there are some habitual offenders who have been “locked up” indefinitely. But in Tasmania, with a population of a half million there are only 6 dangerous offenders. Nearly all of these are sex offenders.

The ideals of liberty, justice and reason require our criminal justice system to treat people fairly; a person cannot be sentenced to a punishment that does not fit the crime. But, at a point, the liberty of that one individual becomes less important than the liberty of the community and the interests of the state in imposing law and order – this is where dangerous offender legislation becomes important and people may be locked up indefinitely (although we do not throw away the key). We will discuss “dangerous offenders” later.

The point that this section is trying to make is this: don’t be fooled by the idea that “criminals” need to be harshly punished to deter them. The harshness of the penalty has no real relationship with deterring offending. A recent European report found no correlation between decreases in crime rates and punitiveness across the Western world. America and Switzerland, Australia and the Netherlands all had a similar decrease in crime despite huge differences in approach to punishing criminal acts.

Nor are “criminals” so different from you and me. Have you jay walked? Have you driven above the speed limit? Have you thought you could drive home with that one drink under your belt? Have you accidentally left a shop with an item but never returned to pay for it? Have you ever had an argument that ended with a physical confrontation? Everyone commits a criminal offence at one time or another. Some people just make bigger mistakes, or make worse decisions. But they are still people, and our society must continue to treat them as people.

A factor that is easy to forget when we are considering punishment for crime is the stress and mental anguish that the trial and court process can cause to defendants. If a young man commits an out of character violent offence, is sincerely remorseful, pleaded guilty at the earliest stage, and has a bright future of service to his country ahead of him, should a Court consider retribution above his capacity to be rehabilitated by a court’s leniency? For some people, particularly first offenders who have committed a one-off, out-of-character offence, exposure to the criminal justice system is enough of deterrence.

The tough question: what if it just doesn’t seem enough?

There are some crimes that are very difficult to approach without deep emotional response, particularly crimes against children. Crimes like these make people ask what the criminal justice system really does to punish someone – to bring justice.

If a man sexually assaults his daughter from when she is just a five year old girl until she is old enough to tell him that she’ll kill him if he ever touches her again, what can the criminal justice system really do to make that father pay for the harm he has done to his daughter. The answer will vary, depending on your perspective. The system can never really make an offender pay for that harm. Justice cannot reach so far as to heal the wounds that are caused by the type of interpersonal crime such as the rape of a child. Whatever the justice system does to an offender, it cannot take away what that person has done. In some ways, justice can never be done for certain types of offence, particularly interpersonal crime, such as domestic violence, assault, rape, robbery, murder.

Why can’t the criminal justice system make a person “pay” in terms of an eye for an eye? It is because the system can only punish according to the system, and that system has principles that guide the penalties that can be imposed. Imprisonment, fines, community service orders, rehabilitation, probation orders – all of these can take time or money from an offender, but can also be oriented toward preventing more crime.

Contrary to what you may believe, many offenders are remorseful for their crimes. Many offenders feel shame or guilt, and do not go on to reoffend. Nor is offending simply because a person is a bad person. Many social, economic and personal factors can contribute to offending behaviour, including mental illness. How the justice system responds represents how we as a society respond, and if the justice system responded with an eye for an eye then we would be committing the same acts, but simply calling it by a different name. The system would perpetrate criminal acts for the purpose of “Justice”. There may never be punishment enough for some offences, but we cannot exact a price from another human being for vengeance. Justice and vengeance are not the same.