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Bagaric, Mirko --- "Sentencing: The Road to Nowhere" [1999] SydLawRw 23; (1999) 21(4) Sydney Law Review 597



[*] BA, LLB (Hons), LLM (Monash); Lecturer, Faculty of Law, Deakin University.

[1] Winston Churchill, in the House of Commons: cited by Ruggles-Brise E, The English Prison System (1921) at 4.

[2] Ashworth A, Sentencing and Criminal Justice (1995) at 331.

[3] The paper focuses primarily on the situation in Australia (especially in Victoria and New South Wales). However, comparisons are made with other jurisdictions (namely the United Kingdom and the United States) where this is considered appropriate.

[4] There are also other different levels of inquiry related to sentencing, which I shall not consider. Penology is the study of penal practice and aims to improve our understanding of its effects and suggest ways in which institutional objectives can be better achieved. The sociology of punishment explores the relationship between punishment and society and examines how punishment operates in society: see Duff RA & Garland D, ‘Introduction: Thinking About Punishment’, in R A Duff RA & Garland D (eds), A Reader on Punishment (1994) at 21–22.

[5] For example, see Packer HL, ‘Theories of Punishment and Correction: What is the Function of Prison?’ in Orland L (ed), Justice, Punishment, Treatment: The Correctional Process (1973) at 184: ‘[t]he purpose of punishment is to inflict deserved suffering, and the purpose of the criminal law is to provide an acceptable basis within the social framework for doing so’.

[6] For example, Ten CL, Crime, Guilt, and Punishment: A Philosophical Introduction (1987) at 4.

[7] Several other utilitarian theories have been advanced, but this remains the most persuasive. See Bagaric M, ‘In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights (1999) 24 Aust J Legal Philosophy 95, at 105–6.

[8] For an overview of many of the theories, see Ten, above n6 at 38–65; Cottingham J, ‘Varieties of Retributivism’ (1979) 29 Philosophical Q 238; Honderich T, Punishment: The Supposed Justifications (1984) at 211.

[9] See Honderich, ibid; Dolinko D, ‘Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment’ (1997) 16 Law and Philosophy 507.

[10] See Duff A & von Hirsch A, ‘Responsibility, Retribution and the ‘Voluntary’: A Response to Williams’ (1997) Camb LR 103 at 107.

[11] See Honderich, above n8 at 212; Kleinig J, Punishment and Desert (1973) at 67; Hawkin DJB, ‘Punishment and Moral Responsibility’ in Grupp SE (ed), Theories of Punishment (1971) at 13.

[12] von Hirsch A, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (1985).

[13] Duff RA, Trials and Punishment (1986).

[14] Sadurski W, Giving Desert its Due: Social Justice and Legal Theory (1985) ch 8; Finnis J, Natural Law and Natural Rights (1980) 263–4. See also, Morris H, ‘Persons and Punishment’ in Murphy JG (ed), Punishment and Rehabilitation (1973); Murphy JG, Retribution, Justice and Therapy (1979) 82–115. Morris and Murphy have both subsequently moved away from this theory: see Morris H, A Paternalistic Theory of Punishment (1981); Murphy JG, ‘Retributivism, Moral Education and the Liberal State’ (1985) 4 Criminal Justice Ethics 3.

[15] However, it has been claimed that retributivism could be formulated as a consequentialist theory: Moore M, ‘Justifying Retributivism’ (1993) 27 Israel LR 15. For a convincing criticism of this see Dolinko D, ‘Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment’ (1997) 16 Law and Philosophy 507 at 509.

[16] Duff, above n13 at 7.

[17] It is also claimed that future orientated considerations – the defendant’s need for treatment, his or her likelihood of offending again, the deterrent effect of his or her punishment on others – have no role in determining the comparative severity of penalties: von Hirsch, above n12 at 10.

[18] The retributive traits I advert to here are similar to those in the definition of retributivism adopted by Dolinko, who defines retributivism as any theory that ‘explains either the rational justification of punishment, or its moral justification, or both, by appealing to the notion that criminals deserve punishment rather than to the consequentialist claim that punishing offenders yields better results than not punishing them’: Dolinko D, ‘Some Thoughts About Retributivism’ (1991) 101 Ethics 537.

[19] For example, see Anderson JL, ‘Reciprocity as a Justification for Retributivism’ (1997) 16(1) Crim Just Ethics 13. This claim is given legal expression in the form of the principle of proportionality, which is discussed below.

[20] von Hirsch A, above n12 at 10.

[21] See von Hirsch A, ‘The Politics of “Just Deserts”’ above n14 at 398. See also von Hirsch, ‘Censure and Proportionality’ in Duff and Garland (eds), above n4, at 125, where he provides that ‘[w]ere penalties ordered in severity inconsistently with the comparative seriousness of the crime, the less reprehensible conduct would, undeservedly, receive the greater reprobation’.

[22] It provides an upper and lower ceiling regarding the amount of punishment that should be inflicted for any particular offence: see Fox RG, ‘The Meaning of Proportionality in Sentencing’ [1994] MelbULawRw 1; (1994) 19 MULR 489 at 491.

[23] Bentham J, Principles of Morals and Legislation Lafleur LJ (ed), (7th ed, 1789) at 178–88.

[24] This argument has been criticised by von Hirsch, who points out that there is no evidence that offenders make comparisons regarding the level of punishment for various offences: von Hirsch, above n12 at 32.

[25] For some it is even thought to be exhaustive of the theory. For example, see New South Wales Law Reform Commission, Sentencing (Discussion Paper No 33, 1996) at 46, where it is stated the just deserts model of sentencing which appears to have been adopted in several jurisdictions is ‘merely a reflection of the common law principle of proportionality’.

[26] It has been argued that in reality a utilitarian theory of punishment still best fits the relevant sentencing factors (at least in Victoria): Bagaric M, ‘The Disunity of Confiscation and Sentencing’ (1997) 21 Crim LJ 191. The recent sentencing reforms in Tasmania are notable, because they represent a partial reversion to a utilitarian sentencing approach. Protection of the public is declared as the primary purpose of sentencing: Sentencing Act 1997 (Tas), s3(b). This may ostensibly appear heavy handed, because it seems to represent a call for tougher sentences. However, if applied properly this is not necessarily the case and in fact, it could lead to a considerable reduction in the severity of sentences. The Act also provides that the other purposes for which punishment may be imposed are deterrence, rehabilitation and denunciation: s3(e). Significantly, the Act does not refer to the principle of proportionality. See also Penalties and Sentences Act 1992 (Qld), especially Part 3 of the preamble: ‘society may limit the liberty of members of society only to prevent harm to itself or other members of society’. For a discussion of the supposedly utilitarian aspirations of this Act, see Mason B, ‘A Not So Rational Philosophy: A critique of the Penalties and Sentences Act 1992 (Qld)’ (1995) QUTLJ at 67.

[27] For an overview of the academic and social trends in punishment, see Duff and Garland, above n4, 8–16; von Hirsch, above n12 at ch 1; Walker N, Why Punish? (1991); Ashworth A, above n2 at 69–72.

[28] The revival of retributivism is due in a large part to the work of Von Hirsch A, particularly Doing Justice: The Choice of Punishments (1976); and Past or Future Crimes (1985). In the United States the just deserts model was responsible for the move away from wide discretionary sentencing powers to laws aimed to promote greater certainty and consistency in sentencing, such as the Minnesota guidelines, which are discussed below. See also, Ashworth, above n2 at ch 13.

[29] As is discussed below, endorsement of a retributive system of punishment in most jurisdictions is by no means absolute.

[30] Ashworth A, ‘Criminal Justice and Deserved Sentences’ (1989) Crim LR 340.

[31] As cited in Armstrong KG, ‘The Retributivist Hits Back’ in Grupp SE (ed), Theories of Punishment (1971) at 19–20.

[32] R v Williscroft [1975] VicRp 27; (1975) VR 292 at 303–4.

[33] For an overview of the literature on deterrence see Wilson JQ, ‘Penalties and Opportunities’ in Duff and Garland (eds), above n4 at 174, where he argues that the main factor relevant to deterrence is not the penalty level, but rather the perceived probability of apprehension. This does not necessarily diminish the importance of punishment. The likelihood of being caught is only undesirable because of the accompanying realisation that punishment may follow. See also Tyler T, Why People Obey the Law (1990) at 107, 175–6, where following a 1984 study of about 1 500 people who lived in Chicago about their contact with legal authorities, Tyler noted that normative issues are closely linked with compliance with the law. People do not merely obey the law because it is in their self-interest to do so, but also because they believe it is proper to do so.

[34] Bottoms AE, ‘An Introduction to the Coming Crisis’ in Bottoms AE & Preston RH (eds), The Coming Penal Crisis: A Criminological and Theological Exploration (1980) at 1.

[35] Martinson R, ‘What Works? – Questions and Answers About Prison Reform’ [1974] The Public Interest 22. Following research conducted between 1960 and 1974, Martinson initially noted that empirical studies had not established that any rehabilitative programmes had worked in reducing recidivism. Martinson, however, softened his position several years later, concluding that some types of rehabilitation programmes, particularly probation parole, may be effective and that generally ‘no treatment ... is inherently either substantially helpful or harmful. The critical factor seems to be the conditions under which the program is delivered’: Martinson R, ‘New Findings. New Views: A Note of Caution Regarding Sentencing Reforms’ (1979) Hofstra LR 243 at 254.

[36] For example, see Cohen S, Visions of Social Control: Crime, Punishment and Classification (1985).

[37] Given the difficulties in defining the factors that are relevant to proportionality (which are discussed below) approximate just deserts is possibly the most that can be hoped for.

[38] See Ten, above n6 at 38–65.

[39] This is a point acknowledged by von Hirsch A, in ‘The Politics of “Just Deserts” above n14 at 408–9.

[40] Walker N & Hough M, Public Attitudes to Sentencing: Surveys in Five Countries (1988), cited in Walker, above n27 at 6.

[41] The survey was in ‘Crime & Punishment Insight: The Sentencing’, 29 July 1996. The results were published in The Herald Sun (Melbourne), ‘Crime and Punishment: Your Verdict’ The Herald Sun (Melbourne) (13 September 1996) 1, 4 and 12–15. For a discussion of the methodology of the survey, see below n126.

[42] For example, von Hirsch believes that the maximum penalty for any offence other than homicide should be three years: Censure and Sanctions (1993).

[43] See also Lovegrove A, ‘Judicial Sentencing Policy, Criminological Expertise and Public Opinion’ (1998) 31 Aust & NZ J of Crim 287, where he argues that judicial sentencing practice is not grounded on ‘well-informed policy because it is not characterised by (1) an articulated, common, comprehensive and coherent penal policy, (2) reference to criminological evidence and (3) informed public involvement’.

[44] Although until recently the West German code adopted a primarily desert based theory and the former Yugoslavia was mainly utilitarian: see Walker, above n27 at 8.

[45] The phrase actually used is ‘to punish the offender ... in a manner which is just in all of the circumstances’ (emphasis added): Sentencing Act 1991 (Vic), s5(1)(a). Interpreted literally, this is either a tautology, at best, or more probably a nonsense. It serves in no way to guide sentencers – they are hardly likely to aim to impose unjust punishment. In order to give this phrase any meaningful content it can only be interpreted to mean just deserts.

[46] This was not actually the case. The problem with adopting inconsistent sentencing principles was recognised, only to be effectively placed in the too hard basket. The Victorian Sentencing Committee (Victoria, Attorney-General’s Department, Sentencing: Victorian Sentencing Committee Report (Melbourne, 1988)), accepted that merely setting out conflicting goals of punishment was undesirable, however, it was not possible, politically or judicially, to obtain agreement as to whether there should be, and if so what should be, the one objective of sentencing: see Freiberg A, ‘Sentencing Reform in Victoria: A Case Study’ in Clarkson C & Morgan R (eds), The Politics of Sentencing Reform (1995) 51 at 58–62.

[47] Great Britain, Home Office, White Paper, Crime, Justice and Protecting the Public (1990) at 2.

[48] Ashworth, above n2 at 81; The White Paper, id at chs 1 and 2.

[49] Section 1 makes clear that the only reason for going beyond a proportionate sentence is where this is necessary to protect the public. Section 28(1) allows weight to be given to any relevant mitigating factor, and in this way other utilitarian objectives, such as rehabilitation, may also be relevant.

[50] For example, the prevalence of the offence: see R v Cunningham (1993) 14 Cr App (S) 444. The fact that other seemingly irrelevant factors have now crept into the sentencing system is not totally unexpected given that another central feature of the Act was not to unduly fetter judicial discretion. ‘The Courts will properly continue to have the wide discretion they need if they are to deal justly with the great varieties of crimes which come before them. The Government rejects a rigid statutory framework on the lines of those introduced in the United States or a system of minimum or mandatory sentences for certain offences’: The White Paper, above n47 at para 2.16. However, as is indicated below only a few short years later, mandatory sentences became a feature of the English sentencing landscape.

[51] [1987] HCA 54; (1987) 163 CLR 561 at 569. Brennan J also went on to note that deterrence has only a limited role where the offence is not inherently harmful and the offender was not aware of its unlawfulness.

[52] R v Radich [1954] NZLR 86 at 87. This passage has been endorsed in many cases. For example, see R v Williscroft [1975] VicRp 27; [1975] VR 292, 2989; R v Cooke (1955) 72 WN (NSW) 132; R v Rushby [1977] 1 NSWLR 594. See also R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 186; R v Lambert (1990) 51 A Crim R 160 at 171. Also, see Sentencing Act 1991 (Vic), s5(1)(b); Criminal Law (Sentencing) Act (SA) 10(j); Sentencing Act 1995 (NT), s5(1)(c); Penalties and Sentences Act 1992 (Qld), s9(1)(c).

[53] Channon v R (1978) 20 ALR 1 at 5 (emphasis added). See also R v Valenti (1980) 48 FLR 616, 420; R v El Karhani (1990) 21 NSWL 370 at 377.

[54] Veen v R (No1) [1979] HCA 7; (1979) 143 CLR 458.

[55] Veen v R (No2) [1988] HCA 14; (1988) 164 CLR 465. See also R v Chivers [1993] 1 Qd R 432; Chester v R [1988] HCA 62; (1988) 165 CLR 611, 618; Baumer v R (1988) 166 CLR 51; Hoare v R [1989] HCA 33; (1989) 167 CLR 348.

[56] See also Australian Law Reform Commission, Sentencing (Report No 44, 1988) at 15–16; New South Wales Law Reform Commission, Sentencing (Discussion paper No 33, 1996) at 492; White Paper, above n47 at 5.

[57] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987) at 154.

[58] Fox R & Freiberg A, Sentencing: State and Federal Law in Victoria (1985) at 444.

[59] Walker, above n27 at 8.

[60] Ashworth, above n2 at 84.

[61] Walker, above n27 at vii–viii.

[62] R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300. This was followed in Young Dickensen & West v R [1990] VicRp 84; (1990) 45 A Crim R 147 and by Crockett J in R v Nagy [1992] VicRp 45; [1992] 1 VR 637. In Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 202, it was accepted that the ‘intuitive model’ is the only feasible method available to a sentencing tribunal’. The High Court has also noted that ‘sentencing is not a purely logical exercise’: Veen (No 2) v R [1988] HCA 14; (1988) 164 CLR 465 at 476.

[63] Justice David Hunt, ‘Criminal Law Update – Court of Criminal Appeal’ (1997) 3 The Judicial Rev 115 at 150.

[64] (1997) 98 A Crim R 463, 466 (Hunt CJ); see also 475 (James J).

[65] For example see, Ayer AJ, Language, Truth and Logic (1936); Mackie JL, Ethics: Inventing Right and Wrong (1977) at 38.

[66] Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 190.

[67] Shapland J in Between Conviction and Sentence: The Process of (1981) at 55 identified 229 factors, while Douglas R in Guilty, Your Worship: A Study of Victoria’s Magistrates’ Courts (1980) in a study of Victorian Magistrates’ Courts identified 292 relevant sentencing factors. The results of such studies were noted in Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 202.

[68] The instinctive synthesis model is contrasted with the ‘"scientific approach’ which requires a systematic allocation of factors and their weighing in accordance with defined criteria with the conclusion represented as the sum of the components’: Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 202. This model, the paradigm of which is reflected in the ‘Minnesota matrix’ (which is discussed below) has been criticised on the basis that it is too rigid. For example, see Australian Law Reform Commission, Sentencing (Report No 44) at 98. An intermediate model is one where a nominal penalty is determined according to the objective circumstances of the case and this is then reduced by mitigating factors. This two stage process has received approval in Western Australia: Punch v R (1993) 9 WAR 486 at 496. It has also been considered, but not endorsed, in several other cases. For example, in R v Raggett (1990) 101 FLR 323 at 335; R v Nagy [1992] 1VR 637 at 645; Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 and R v Young [1990] VicRp 84; [1990] VR 951, 960, where it was rejected on the basis that it may lead to error. It has been most pointedly rejected in NSW: see Gallagher v R (1991) 23 NSWLR 220; R v Beavan (Unreported, Court of Criminal Appeal (NSW) at 22 August 1991) at 14–6; Lett v R (Unreported, Court of Criminal Appeal (NSW) at 27 March 1995), R v Lawson (1997) 98 A Crim R 463.

[69] For example, see Andrew v R (Unreported, Court of Criminal Appeal (Vic), 12 Aug 1983) and Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186 at 202, where it was stated that ‘[i]t is impossible to allocate to each relevant factor a mathematical value and from that, extrapolate a sum which determines the appropriate penalty’.

[70] R v Oliver (1982) 7 A Crim R 174 at 177.

[71] (1984) 12 A Crim R 386 at 388 (Crocket J).

[72] (1983) 5 Cr App R(S) 109, 114 (emphasis added).

[73] But see discussion below regarding the recent developments in the New South Wales Court of Appeal.

[74] See Ashworth A & Andrew von Hirsch A, ‘Recognising Elephants: The Problem of The Custody Threshold’ [1997] Crim LR 187.

[75] The White Paper, above n47 at para 2.20, provided that ‘the new legislative provisions ... the Guidance from the Court of Appeal and the Attorney General’s new power to refer over-lenient sentences for very serious offenders to the Court Appeal, should all contribute to the development of coherent sentencing practice’.

[76] Henham R, ‘Making Sense of the Crime Sentences Act (1997), (1998) 61 Modern LR 223.

[77] R v Johnson (1994) 15 Cr App R (S) 827. See also Lord Taylor ‘Judges and Sentencing’ (1993) Journal of the Law Society of Scotland 129 at 130, where he stated that guideline cases merely set the general tariff, but judges are free to tailor the sentence to the facts of the particular case. Guideline judgments are used not only in the United Kingdom, but also in Canada and New Zealand. However, in Canada and New Zealand the judgments are generally not as instructional. They merely set a tariff for a particular offence, unlike the situation in the United Kingdom where they often also analyse paradigm aggravating and mitigating circumstances of the offence: see Supreme Court of NSW, ‘Sentencing – Guideline judgments’ (1998) 10(9) Judicial Officers’ Bulletin 67.

[78] Victoria, Attorney-General’s Department, Sentencing: Victorian Sentencing Committee Report (1988), vol 1 at 217-220.

[79] Id at vol 3, A9–10.

[80] Smith J, ‘Clothing the Emperor: Towards a Jurisprudence of Sentencing’ (1997) 30 ANZ J Crim 168 at 170.

[81] However, empirical evidence to support disparity in sentencing is slight, probably due to the time consuming nature of any such research: see Fox R, ‘Controlling Sentencers’ (1987) 20 ANZ J Crim 218 at 223. Given the current approach to sentencing it is inevitable that inconsistency must occur. To the extent that some evidence is available of this see Straw J, The Labour Party (London), Honesty, Consistency and Progression in Sentencing (1996); Tata C & Hutton N, ‘What “Rules” in Sentencing? Consistency and Disparity in the Absence of “Rules”’ (1998) 26 Int J Soc L 339. See also Frankel M, Criminal Sentences: Law Without Order (1971), where the unfairness and abuses of the unfettered sentencing discretion are detailed. It is thought that this book provided the catalyst for the movement towards guideline or grid sentencing in many United States jurisdictions. Wheeler S, ‘Review Essay: Sentencing Matters’ (Michael Tonry) (1997) 16(2) Criminal Justice Ethics 46 at 47.

[82] For example, see Raz J, The Authority of Law (1979) at ch 1; Finnis, above n14 at 270–6.

[83] Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610–11 (Mason J).

[84] Smith, above n80 at 174. Smith believes that whether or not sentencing can ultimately be justified on the basis of one rationale or requires several different rationales will turn upon whether there is sufficient similarity between the types of behaviour proscribed by the criminal law. He contends that a single rationale is not possible because the type of behaviour proscribed by the criminal law is so disparate, for example ranging from homicide to drink-driving, that several different rationales, or jurisprudences of sentencing, are necessary. However, it has been argued that all criminal conduct can be justified on a utilitarian basis: Bagaric M, ‘Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt with on the Spot’ [1998] MonashULawRw 11; (1998) 24(2) Mon LR 231 at 242–4.

[85] Smith, id at 175–6 (references omitted).

[86] R v Hayes (1987) 29 A Crim R 452 at 466 (Kirby J).

[87] The appearance that rules sometimes clash is explained by Dworkin on the basis that at least one of the rules (especially the exceptions to it) has not been fully stated.

[88] For example, see Riggs v Palmer (1889) 115 NY 506; 22 NE 188. For a good discussion of this case see Dworkin R, Law’s Empire (1986) at 15–20.

[89] For a discussion on the distinction between rules and principles see, Dworkin R, Taking Rights Seriously (1977) at 22–8, 76–77.

[90] Smith, above n80 at 174.

[91] Dworkin defines a policy as ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community’, above n89 at 22.

[92] See also Ashworth A, above n2 at 60.

[93] See Bagaric, above n84 at 242–4, where it is argued that even regulatory or strict offences can be justified on the basis of the (indirect) harm they cause to others.

[94] Crimes Act 1958 (Vic), s6A. See also Rodriguez v British Columbia (Attorney-General) (1994) 85 CCC (3d) 15. Although it is still a crime to assist others to kill themselves (s6B(2)), a reduced penalty applies where the assistance occurs pursuant to a suicide pact. Inciting or abetting suicide is only illegal in circumstances of immediacy: Attorney-General v Able and Ors [1984] QB 795. It is not an offence to provide general information regarding how one might be able to kill themselves. Killing pursuant to a suicide pact is also an offence, however, where the defendant on the balance of probabilities can show that the killing was in fulfilment of the pact (R v Sciretta [1977] VicRp 15; [1977] VR 139), the offence is reduced from murder to manslaughter (s6B(1)) and it is permissible to use reasonable force to prevent a suicide attempt: (s463B). The Medical Treatment Act 1988 (Vic) does not confer a right to refuse medical treatment where the medical condition stems from an attempt to commit suicide and the compliance with the patient’s request would complete the suicide attempt: Re Kinney (Supreme Court of Victoria, Fullagar J, 23 Dec 1988).

[95] R v Brown & Ors [1993] UKHL 19; [1994] 1 AC 212.

[96] R v Coney & Ors [1882] UKLawRpKQB 30; (1882) 8 QBD 534; R v Donovan [1934] 2 KB 498.

[97] Except in the case of an emergency, consent is only a defence where the patient has been advised of the material risks inherent in the proposed treatment: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

[98] So long as the injury occurs in the course of conduct sanctioned within the rules or within the accepted standard of the sport and the act does not inherently carry a high risk of injury: R v Cey (1989) 48 CCC (3d) 480; R v Ciccarelli (1990) 54 CCC (3d) 121. There must also be no intention to cause injury: Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29; [1976] VR 331.

[99] R v Wilson [1996] 3 WLR 125, where consent was a valid defence to body branding in the course of a marital relationship. For a good discussion on the limits of consent to the infliction of injury, see Freckleton I, ‘Masochism, Self-mutilation and the Limits of Consent’ (1994) 2 J Law Med 48.

[100] The sentence must be actual imprisonment, not home detention or a suspended sentence. It should be noted that the system of mandatory minimum penalties was not introduced with the goal of improving consistency, but rather, as part of a ‘get tough on crime’ policy.

[101] These provisions were introduced via amendments to the Juvenile Justice Act 1983 (NT) and the Sentencing Act 1995 (NT) and came into operation in March 1997.

[102] This clearly infringes the principle of ordinal proportionality (which is discussed below). Perhaps the strongest legalistic attack on mandatory sentences is that they are unconstitutional because they violate the independence of the judiciary. However, this argument has been rejected on the basis that it is within the competence of parliament to impose a duty that deprives courts of a range of discretionary powers that would otherwise be available and a legislative direction to the courts that requires mandatory sentencing does not violate the separation of powers doctrine: Wynbyne v Marshall [1997] NTSC 120; (1997) 117 NTR 11. In addition to this, as Ashworth points out, judicial independence is concerned with the maintenance of impartiality in the administration of justice, rather than legitimate policy objectives of parliament: Ashworth A, ‘Changes in Sentencing Law’ [1997] Crim LR 1. Most other jurisdictions have not gone down the same path. For example, in Victoria there is only one offence which carries a mandatory term of imprisonment. Strangely, this is the relatively trivial offence of driving whilst disqualified. A second offence of this nature carries a minimum penalty of one month imprisonment: Road Safety Act 1986 (Vic), s30. However, in 1996 New South Wales introduced mandatory life sentences for certain murder and drug offences: Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW), new Crimes Act 1900 (NSW), s431B. Mandatory and minimum custodial sentences (including life sentences) have also been introduced by the Crime (Sentences) Act 1997 (UK) for certain offences, including drug offences and other ‘serious offences’. Prior to this, mandatory sentences were absent from the United Kingdom since 1891. For an overview of this see, above n76; Thomas DA, ‘The Crime (Sentences) Act 1997’ [1998] Crim LR 83. Following a detailed analysis of mandatory sentences, they have been persuasively criticised for several reasons: they increase trial rates and case processing times; they result in the needless imprisonment of many offenders; and they result in covert efforts by judges, prosecutors and defence lawyers to evade often harsh and unjust sentences: see Tonry M, Sentencing Matters (1996) at ch 5. Tonry suggests that mandatory sentences should be converted into presumptive sentences. See also Warner K, ‘Sentencing Review 1997’ (1998) Crim LJ 282 at 284; Flynn M, ‘One Strike and You’re Out!’ (1997) 22 Alt LJ 72, where the Northern Territory provisions are criticised on the basis that where there is no distinction between trivial and serious types of breaches, they breach the principle of proportionality; there is no evidence that mandatory sentences are effective deterrents; discretion shifts from the judiciary to the police; and that because there is no reduction for a guilty plea, there will be more contested matters and court delays.

[103] NSW Supreme Court, Court of Criminal Appeal (Spigelman CJ) 12 October 1998.

[104] The offence involved was dangerous driving occasioning grievous bodily harm pursuant to s52A(3) of the Crimes Act, above n102. The guideline issued was that for an offence of this nature where there is present to any material degree any aggravating factor, a custodial sentence of less than three years (where death is caused) and less than two years (where grievous bodily harm results) should be exceptional.

[105] R v Jurisic (NSW Supreme Court, Court of Criminal Appeal (Spigelman CJ) 12 October 1998 at 17. The Sentencing Act 1995 (WA), s143(3) makes provision for the Court of Criminal Appeal to issue guideline judgments. In GP (1997) 93 A Crim R 351, the Western Australian Court of Criminal Appeal declined to issue a guideline judgment (despite a request by the Crown to do so) and indicated that such judgments should be issued very sparingly – none have yet been issued.

[106] R v Bloomfield (NSW Supreme Court, Court of Criminal Appeal, 15 July 1998). Traditionally the courts have been reluctant to rely on sentencing statistics: see Ireland v R (1987) 29 A Crim R 353 and Zakaria v R, above n71; except to note that they do indicate the most common sanction imposed in relation to particular offences: R v Stephens (1975) 13 SASR 145, and as a general guide to the range of penalties which are open: Winkler v Cameron (1981) 33 ALR 663; Yardley v Betts (1979) 1 A Crim R 329.

[107] Above n78 at 145.

[108] See Nagle Justice JF, ‘Punishment, Parliament and the People’ (1998) 10(3) Judicial Officers’ Bulletin 17. For example, in Victoria there was an 11 per cent increase in the gaol population in the 1998 financial year, even though the level of reported crime grew by only one per cent: ‘New Laws May Lead to New Jail’ The Age (6 Jan 1999) at 2. This has resulted in the need to build a new prison facility and a call by the state opposition to consider the US method of electronic bracelets and home detention as an alternative to prison: The Age (24 Jan 1999) at 8. In Western Australia a tough law and order policy has lead to a 60 per cent increase in prison numbers in three years, resulting in a government plan to house prisoners in steel shipping containers: ‘Crowded Jails to Get Sea Division’ The Age (6 Jan 1999) at 6. State election campaigns in NSW and, more recently, Queensland have seen intense competition by the leading parties to propose the tougher sentencing laws.

[109] This last round of changes were pursuant to the Sentencing and Other Acts (Amendment) Act 1997 (Vic).

[110] Above n94 at s318.

[111] Id at s38.

[112] Rape with aggravating circumstances was previously 20 years.

[113] Above n94 at s5.

[114] Id at s88.

[115] Id at s16.

[116] Although from 1992 to 1997 it dropped to 12.5 years.

[117] von Hirsch A, above n12. Von Hirsch also refers to a concept called cardinal proportionality, which is a non relative assessment of the seriousness of a particular offence which serves as an anchoring point against which all other offences are to be evaluated.

[118] Which requires that similar crimes deserve similar penalties.

[119] This means that more serious crimes are accorded more severe sanctions.

[120] Which requires that the penalty difference between offences should be commensurate with the difference in the seriousness of offences.

[121] von Hirsch A & Jareborg N, ‘Gauging Criminal Harm: A Living-Standard Analysis’ (1991) 11 Oxford J Legal Stud 1 at 19. They identify four basic types of interest. In order of most to least important they are: physical integrity; material support and amenity (such as nutrition and shelter); freedom from humiliating or degrading treatment; and privacy and autonomy.

[122] Again there is four step scale, and from most to least serious the scale is: subsistence (ie, the maintenance of basic human functions); minimal well-being; adequate well-being and significant enhancement in quality of life.

[123] Culpability essentially concerns the offender’s degree of knowledge and remoteness relates to the degree of closeness between the conduct and the harm or possible harm. Thus, for example, attempted offences or those where the offender only has a minor role are not as serious as completed offences or those committed by a single offender.

[124] Which as I have indicated earlier, are absent in the Victorian sentencing system.

[125] See Fox R & Freiberg A, (‘The Sentencing Taskforce’ (Vic)), Review of Statutory Maximum Penalties in Victoria (1989).

[126] The survey was in The Herald Sun (Melbourne) ‘Crime & Punishment Insight’, above n41. The results revealed that respondents wanted significantly tougher sentences to be imposed for numerous offences: The Herald Sun (Melbourne), ’Crime and Punishment’, above n41 at 1,4, 12–15. The survey is unsatisfactory since it did not sample a random cross section of the community (Herald Sun Readers only) and was likely to invoke responses only from those who felt most strongly about sentencing issues. To the extent that legislatures are concerned with public opinion about crime and sentencing, only ‘sophisticated’ surveys which include a random sample of people and provide respondents with substantial information about the offence (such as the mental state of the offender, for example, intention, recklessness, negligence, and so on) are credible: see Ashworth, above n2 at 90–2, where he discusses trends which have emerged from such surveys.

[127] Hart HLA, Punishment and Responsibility: Essays in the Philosophy of Law (1968) at 41.

[128] R v Dole [1975] VicRp 75; [1975] VR 754 at 768. See also, R v Causby [1984] TASRp 9; [1984] Tas R 54 at 59.

[129] Sentencing Act, above n45 at s18A. It should be noted that indefinite sentences may also be imposed in most other Australian jurisdictions. For example, Criminal Law (Sentencing) Act 1988 (SA), Div III; Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA); Penalties and Sentences Act above n52, Part 10.

[130] Sentencing Act, id at s18B(1).

[131] See comments in Kennan v David (No 2) (Supreme Court of Victoria, Hedigan J, 15 November 1991) at 33.

[132] See Williams CR, ‘Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case’ [1990] MonashULawRw 10; (1990) 16 Mon LR 161 at 181–2, where he argues that in relation to people convicted of serious violent offences, reliable predictions can be made regarding their future conduct. However, as was pointed out by Fairall PA, in ‘Violent Offenders and Community Protection in Victoria – The Gary David Experience’ (1993) 17 Crim LJ 40 at 51, Williams offers no empirical evidence in support of such an assertion.

[133] Parke J & Mason B, ‘The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)’ (1995) 19 Crim LJ 312 at 322.

[134] See Wood D, ‘Dangerous Offenders, and the Morality of Protective Sentencing’ [1988] Crim LR 424; Wood D, ‘Dangerous Offenders and Civil Detention’ (1989) 13 Crim LJ 324; Floud J, ‘Dangerousness and Criminal Justice’ (1982) 22 Brit J Criminology 213; Brody SR & Tarling R, Taking Offenders Out of Circulation (Home Office Research Study No 64, 1981); Monahan J & Steadman HJ (eds), Violence and Mental Disorder: Development in Risk Assessment (1994).

[135] Floud, above n134 at 217.

[136] Monahan J, ‘The Prediction of Violent Behaviour: Toward a Second Generation of Theory and Policy’(1984) 141(1) American J Psychiatry 10. Another study revealed a false positive rate of about 65 per cent: see Kozol K, ‘Dangerousness in Society and Law’ (1982) 13 Toledo LR 241. For an extensive discussion on the research into dangerousness, see Shea P, Psychiatry in Court: The Use(fulness) of Psychiatric Reports and Psychiatric Evidence in Court Proceedings (2nd ed, 1996) at 155–163; Pratt J, Governing the Dangerous: Dangerousness, Law and Social Change (1997) at 171–177. The inability to predict dangerousness with any degree of certainty has been acknowledged by the High Court; see Veen v R (No 1) (1978–79) [1979] HCA 7; 143 CLR 458 at 462–467, 494 (Stephen J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 123 (McHugh J) where it was stated that a prediction about dangerousness, ‘... can at best be but an informed guess...’.

[137] Morris N, ‘Dangerousness and Incapacitation’, in Duff and Garland (eds) above n4 at 238, 244.

[138] See Confiscation Act 1997 (Vic), which replaces the Crimes (Confiscation of Profits) Act (Vic) 1986.

[139] This applies to ‘civil forfeiture offences’: Confiscation Act 1997 (Vic), s37, schedule 3.

[140] This applies in relation to ‘automatic forfeiture orders’: Confiscation Act, s35, schedule 2.

[141] Bagaric, above n26.

[142] Ibid.

[143] It is apparent that pain and suffering includes not only physical and psychiatric harm, but also purely emotional and mental distress. In R v Coffey (Unreported, County Court of Victoria, 14 October 1997, Nixon J) the victims (two brothers who where sexually abused by a teacher about 20 years earlier) were awarded damages ($7,500 each) where the harm essentially consisted of humiliation, embarrassment and nightmares.

[144] As amended by the Victims of Crime of Assistance (Amendment) Act (Vic) 1997. These changes commenced on 1 July 1997. Prior to this, victims could only recover compensation for money/ property loss pursuant to section 86.

[145] From the perspective of the victim, the changes may appear to be welcome. Victims are spared the normal expense of civil proceedings. However, on closer analysis victims are the biggest losers from the changes to section 86. This is because the expanded section 86 was enacted as a trade off for the crimes compensation scheme (so far as it related to compensation for pain and suffering). The Criminal Injuries Compensation Act 1983 (Vic) was effectively repealed the same day section 86 was expanded. The splendour of the previous scheme was that victims were guaranteed payment of any award which was made in their favour, because the scheme was underwritten by the State. Even the legal expenses of victims were paid by the State. It seems the scheme worked too well. In the 1990 financial year the total amount awarded was about $21 million and this rose to nearly $50 million in 1997. By contrast, in the first year of operation of the expanded section 86 there were a total of three successful applications, with the greatest award being $10,000. The three cases were: R v Coffey, above n143; R v Vereker, (Unreported, County Court of Victoria, Morrow J, 11 November 1997); R v Vandrine, [1998] VSCA 43. Given that now it is the accused, not the State, that is liable for payment of pain and suffering awards, it is not known how much money, if any, was actually received by victims.

[146] Sentencing Act, above n145 at s86(8); R v Coffey, above n145.

[147] Zedner L, ‘Reparation and Retribution: Are They Reconcilable’ (1994) 57 Mod LR 228, where she refers to the literature regarding the supposed tension between reparation and retribution. Zedner ultimately favours the view that the two aims are not irreconcilable.

[148] See Ten, above n6 at 2, where he defines punishment as the infliction of some unpleasantness on the offender. See also Bagaric, above n26 at 197.

[149] For example, the mandatory prison term faced by Victorian offenders for a second offence of driving whilst disqualified; see above n102.

[150] In the United States, 14 other states also utilise sentencing grids; see Fraser R, ‘Sentencing Guidelines in Minnesota and Other American States: A Progress Report’, in Clarkson C & Morgan R (eds), The Politics of Sentencing Reform (1995) 169 at 171.

[151] For a more detailed explanation of the Minnesota grid system, see Fox, above n81 at 235–240.

[152] The involvement of the courts would be confined to not guilty pleas and where the defendant revokes the notice and elects to have the matter heard in court. Such a system would obviously require fixed penalties as opposed to ranges being employed. For an analysis of the benefits of such a system see Bagaric, above n84.

[153] Fox R, Criminal Justice on the Spot: Infringement Penalties in Victoria (1987); Bagaric, ibid.

[154] Ibid.

[155] Australian Law Reform Commission, Sentencing of Federal Offenders, Interim Report No 15, (AGPS: Canberra, 1980) at xxiii.

[156] Council of Europe, Consistency in Sentencing (1992), Recommendation R (92), Strasbourg, as cited in Ashworth A, above n2 at 61.

[157] For an overview of the criticisms of the respective theories of punishment and a discussion regarding the theory which should be adopted, see Bagaric M, ‘In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent and the Compatibility of Utilitarianism and Rights’ (1999) Australian J Legal Philosophy (forthcoming).

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