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Bagaric, Mirko --- "Suspended Sentences and Preventive Sentence: Illusory Evils and Disproportionate Punishments" [1999] UNSWLawJl 6; (1999) 22(2) UNSW Law Journal 535

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

[1] There were 360 suspended sentences imposed in the County and Supreme Courts and 4760 in the Magistrates' Courts: Caseflow Analysis Section, Courts and Tribunal Services Division, Department of Justice, Victoria, Sentencing Statistics: Higher Criminal Courts Victoria, 1996 at 137; Caseflow Analysis Section, Courts and Tribunal Services Division, Department of Justice, Victoria, Sentencing Statistics: Magistrates' Court Victoria, 1996 at 242. In total there were 82 452 matters finalised in the Magistrates' Court during 1996 and 1205 in the County and Supreme Courts - all of the figures are based on the penalties imposed on persons sentenced based on the principal offence, as opposed to the penalty imposed for each offence charged.

[2] More precisely the figure is 29.8 per cent (360 of a total of 1205 penalties that were imposed): Sentencing Statistics: Higher Criminal Courts Victoria, note 1 supra at 137. The most common sanction was an immediate term of imprisonment. In the Magistrates’ Court during 1996 the suspended sentence was the fifth most frequently imposed sanction (behind a fine, licence order, bond and community based order). This equated to 6 per cent of the total sentences handed down: Sentencing Statistics: Magistrates’ Court Victoria, note 1 supra at 242.

[3] JQ Campbell, “A Sentencer’s Lament on the Imminent Death of the Suspended Sentence” [1995] Criminal Law Review 293 at 294.

[4] For example, see New South Wales Law Reform Commission Discussion Paper 33, Sentencing, 1996 at 354-5.

[5] The terms preventive sentence and protective sentence are used interchangeably.

[6] For a history of suspended sentences, see M Ancel, Suspended Sentences, Heinemann (1971). Despite the long history of suspended sentences there is a relative dearth of literature on them.

[7] There are however variations regarding the circumstances in which they can be imposed and the consequences of breach. In Victoria a term of imprisonment may be suspended where the court is satisfied that it is desirable to do so in the circumstances (Sentencing Act 1991 (Vic), s 27(1)). The power to suspend sentences where drunkenness or alcohol contributed to the commission of the offence was abolished on 1 September 1997 due to the frequency with which such sentences were breached. In England, a term of imprisonment may only be suspended in exceptional circumstances (Powers of Criminal Courts Act 1973 (UK), s 22). As to the meaning of exceptional circumstances, see M Wasik, “The Suspended Sentence ‘Exceptional Circumstances’” (1998) 162 Justice of the Peace 176. In relation to the circumstances in which a suspended sentence may be imposed in other jurisdictions, see: Crimes Act 1914 (Cth), s 20(1)(b), where the court has the power to attach a wide range of conditions to the suspension (such sentences are called recognisance release orders); Criminal Law (Sentencing) Act 1988 (SA), s 38; Penalties and Sentences Act 1992 (Qld), s 144; Sentencing Act 1997 (Tas), ss 7, 25; Sentencing Act 1995 (WA), s 76; Sentencing Act 1995 (NT), s 40; Crimes Act 1900 (ACT), s 556B(1)(b).

[8] Suspended sentences existed in New South Wales until 1974 (Crimes Act 1900 (NSW), ss 558-62). They only applied where the offender had not previously been convicted of an indictable offence and had not previously been sentenced to imprisonment. The execution of the sentence could only be suspended where the offender entered a recognisance to be of good behaviour for not less than 12 months. Suspended sentences were abolished following the recommendation of the New South Wales Criminal Law Committee, Report of the Criminal Law Committee on Proposed Amendments to the Criminal Law and Procedure, 1973 at 15. The report concluded that the common law bond was a superior sentencing sanction in dealing with first time offenders and that the suspended sentence provisions were too restrictive regarding when they could be applied and what could be done in the event of a breach.

[9] Crimes Act 1915 (Vic), s 532 (see R v Richmond [1919] ArgusLawRp 120; [1920] VLR 9; R v Timms [1921] ArgusLawRp 94; [1921] VLR 503, regarding the circumstances in which suspended sentences could be imposed); Crimes Act 1928 (Vic), s 532. Suspended sentences were not adopted in the Crimes Act 1958 (Vic), but were reintroduced by the Penalties and Sentences Act 1985 (Vic), ss 20-4.

[10] Sentencing Act 1991 (Vic), ss 18Q, 5(4A).

[11] Ibid, ss 19, 5(5).

[12] For example, see R v Locke and Paterson (1973) 6 SASR 298 at 301-2; R v Edwards (1993) 67 A Crim R 486. In Victoria, a wholly suspended sentence is treated as one of immediate imprisonment for all statutory purposes except for “disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits” (Sentencing Act 1991 (Vic), s 27(5)). See also Sentencing Act 1995 (NT), s 40(5). However, where a term of imprisonment is only partly suspended, the sentence is considered to be one of imprisonment for the whole term (Sentencing Act 1991 (Vic), s 27(8)). See also Sentencing Act 1995 (NT), s 40(8).

[13] Sentencing Act 1991 (Vic), s 27(2A). In Queensland and the Northern Territory, the maximum term that may be suspended is five years (Penalties and Sentences Act 1992 (Qld), s 144(1); Sentencing Act 1995 (NT), s 40(1)), while in South Australia, Tasmania and the Australia Capital Territory no such limit exists.

[14] Sentencing Act 1991 (Vic), s 27(2A).

[15] Powers of Criminal Courts Act 1973 (UK), s 22(1). The offender must also be over the age of 20.

[16] For example, see Victorian Sentencing Committee Report, Sentencing Vol 1, 1988 at 323. In Victoria and England where a suspended sentence is imposed the court does not have the power to impose additional conditions. A suspended sentence may be coupled with other sanctions, such as a fine, but these additional sanctions cannot form a condition of the suspended sentence. Thus a failure to pay a fine which is imposed in addition to a suspended sentence does not constitute a breach of the suspended sentence. The only condition which is imposed is that the offender not commit an offence during the operational period. This is the same as the position in Queensland (Penalties and Sentences Act 1992 (Qld), ss 4, 144(1)). In contrast, in South Australia, Tasmania, the Northern Territory, and under the Commonwealth legislation there is power to impose other conditions (Criminal Law (Sentencing) Act 1988 (SA), s 38(1)(b); Sentencing Act 1997 (Tas), ss 7, 25; Sentencing Act (NT), s 40(2); Crimes Act 1914 (Cth), s 20(1)(a)).

[17] Where, however, a suspended sentence is not activated, other options include: extending the term of the suspended sentence; activating only part of the term; and taking no action at all (Sentencing Act 1991 (Vic), s 31(5); Powers of Criminal Courts Act 1973 (UK), s 23(1)).

[18] Sentencing Act 1991 (Vic), s 31(5A); Powers of Criminal Courts Act 1973 (UK), s 23(1).

[19] This is in contrast to the position in England where the court may consider all of the circumstances. It has been held that if the breaching offence is minor and not serious enough to justify a term of imprisonment in itself, this is a strong consideration against activating the suspended sentence (Stacey v R [1994] Crim L R 303). However, the fact that the breaching offence is of a different nature from the original one does not mean that it is unjust to activate the term (R v Moylan [1970] 1 QB 143; Saunders v R (1970) 54 Cr App R 247). In Victoria, the ‘exceptional circumstances’ requirement has not yet been the subject of authoritative judicial interpretation.

[20] Sentencing Act 1991 (Vic), s 27(3); Powers of Criminal Courts Act 1973 (UK), s 22(2)(a).

[21] See Trowbridge [1975] Crim L R 295.

[22] Sentencing Act 1991 (Vic), ss 5(3), (4); Criminal Justice Act 1991 (UK), ss 1(2)(a), (b).

[23] See DA Thomas, Principles of Sentencing, Heinemann (2nd ed, 1979) p 244.

[24] See, for example, R v Robinson [1975] VicRp 81; [1975] VR 816 at 828; R v Davey [1980] FCA 134; (1980) 50 FLR 57.

[25] See, for example, R v Gillan [1991] FCA 184; (1991) 54 A Crim R 475; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; Graham v Bartley (1984) 57 ALR 193.

[26] Note 6 supra, p 12.

[27] These changes are discussed below.

[28] Note 3 supra at 294-5.

[29] D Tait, “The Invisible Sanction: Suspended Sentences in Victoria 1985-1991” (1995) 28(2) Australian and New Zealand Journal of Criminology 143 at 149. Diversion, during the period of Tait’s study, was largely confined to offenders with no or few prior convictions, whereas penalty escalation was targeted at those with an extensive criminal record (at 150-1).

[30] For example, a six month suspended term was seen as equivalent to an immediate term of about four months: ibid at 153-4.

[31] See D Moxon, Sentencing Practices in the Crown Court, HMSO Study 103 (1988) p 35.

[32] Ibid, pp 34-6: it was noted that 29 per cent of sentences for theft in breach of trust were suspended, despite the principle that suspended sentences are rarely appropriate in such cases. See also, note 29 supra at 150-1.

[33] Note 31 supra, pp 35-6.

[34] AE Bottoms, “The Advisory Council and the Suspended Sentence” [1979] Criminal Law Review 437.

[35] Advisory Council on the Penal System, Sentences of Imprisonment: A Review of Maximum Penalties, HMSO (1978) at [263].

[36] R Jenkins, Home Secretary, in HC Committee Debates, Standing Committee A (session 1966-67) Vol II, cols 544-5, as cited in AE Bottoms, note 34 supra at 438.

[37] Note 34 supra at 438-9. The breach rate for suspended sentences in England is about one-quarter (A Ashworth, Sentencing and Criminal Justice, Butterworths (1995) p 286).

[38] Note 34 supra at 444. See also AE Bottoms, The Suspended Sentence After Ten Years: A Review and Reassessment, University of Leeds (1979); RF Sparks, “The Use of Suspended Sentences” [1971] Criminal Law Review 384.

[39] Note 35 supra at [263].

[40] Ibid at [266].

[41] Note 34 supra at 439.

[42] A Ashworth, note 37 supra, p 286.

[43] Ibid, pp 10 and 287. These changes have not been universally welcomed. Some feel that they have lost a vehicle which allows them to signify the seriousness of offences, while showing mercy in particular cases (see note 3 supra and also M Wasik, note 7 supra).

[44] Powers of Criminal Courts Act 1991 (UK), s 22(2)(b), as amended by the Criminal Justice Act 1991 (UK), s 5 (1). This has been interpreted very strictly. Circumstances which are normally considered mitigatory such as good character, remorse and a plea of guilty are not exceptional (Okinikan v R (1992) 14 Cr App R (S) 453). A similar view was endorsed in R v Robinson (1993) 14 Cr App R (S) 559. However, it has been held that depression could amount to exceptional circumstances (R v French [1993] Crim L R 893, but cf R v Bradley [1994] Crim L R 381); as could the need to rehabilitate an offender with a family (R v Cameron [1993] Crim L R 721); and as could terminal illness (see note 3 supra). See also M Wasik, note 7 supra.

[45] Lowery v R (1993) Cr App R (S) 485.

[46] Note 29 supra at 157-9.

[47] Ibid at 149. The significantly greater proportion of suspended sentences imposed by the higher courts follows from the fact that about 70 per cent of all sentences passed in these courts involve a gaol term, compared to approximately only 10 per cent of the sentences passed in the Magistrates’ Court.

[48] See notes 1 and 2 supra.

[49] See note 29 supra at 155.

[50] This was extended to two years in April 1991 and three years in September 1997 (Sentencing Act 1991 (Vic), s 27(2)).

[51] See note 29 supra at 159.

[52] Note, though, that until relatively recently, the West German Code adopted a primarily retributive approach and the sentencing system in the former Yugoslavia was essentially utilitarian: see N Walker, Why Punish?, Oxford University Press (1991) p 8.

[53] RG Fox and A Frieberg, Sentencing State and Federal Offences, Oxford University Press (1986) p 444 notes that at various times retribution, deterrence, rehabilitation, denunciation, incapacitation, education and community protection have all been advanced as the sole or main purpose of criminal sentencing.

[54] Section 5(1).

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

[56] A Ashworth, note 37 supra, p 81. The White Paper, upon which the 1991 Act is based, declared that proportionality was the primary consideration (ch 1 and 2), see ibid.

[57] Section 1 makes it clear that the only reason for going beyond a proportionate sentence is where this is necessary to protect the public. There is also room for rehabilitation to serve as a mitigating factor: ss 4(1), 6, 8, 28(1).

[58] J Shapland, Between Conviction and Sentence, Routledge & Kegan Paul (1981) p 55 identifies 229 factors, while R Douglas, Guilty, Your Worship, LaTrobe University (1982), 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 where it was stated that “it is impossible to allocate to each relevant factor a mathematical value, and from that, extrapolate a sum which determines the appropriate penalty”.

[59] [1970] 1 WLR 1016. The Advisory Council on the Penal System also thought that this would be desirable: note 35 supra at [288].

[60] Note 35 supra at [268].

[61] Note 55 supra at [3.20]-[3.21].

[62] For example, see R v H [1993] QCA 240; (1993) 66 A Crim R 505 at 510; Elliott v Harris (No 2) (1976) 13 SASR 516 at 527; Patterson v Stevens (1992) 57 SASR 213 at 217; R v Voegeler (1988) 36 A Crim R 174.

[63] R v Gillian [1991] FCA 184; (1991) 54 A Crim R 475 at 480.

[64] Note 29 supra at 146. See also AE Bottoms, “The Suspended Sentence in England 1967-1981” (1981) 21 British Journal of Criminology 1.

[65] C L Ten, Crime, Guilt and Punishment, Clarendon Press (1987) p 2.

[66] Ostensibly, confining punishment to the guilty might appear to be uncontroversial. However, one of the strongest objections which has been levelled against a utilitarian theory of punishment is that in some circumstances the utilitarian is indeed required to punish the innocent: see HJ McCloskey, Meta-Ethics and Normative Ethics, Martinus (1969) pp 180-1. As far as punishing the innocent is concerned, the correct position would appear to be that advanced by Walker, who provides that while punishment generally requires that the offender has voluntarily committed the relevant act, it is sufficient that the punisher believes or pretends to believe that he or she has done so: note 52 supra, p 2.

[67] H Morris, “Persons and Punishment” in SE Grupp (ed), Theories of Punishment, Indiana University Press (1971) 76 at 83.

[68] RA Duff, Trials and Punishments, Cambridge University Press (1985) p 267. See also p 151 where Duff states that punishment is suffering inflicted on an offender for an offence by a duly constituted authority.

[69] JME McTaggart, Studies in Hegelian Cosmology, Cambridge (1901) p 129.

[70] Walker takes the view that punishment can be ordered by anyone who is regarded as having the right to do so, such as certain members of a society or family, not merely a formal legal authority, and that punishment stems not only from violation of legal rules, but extends to infringements of social rules or customs: note 52 supra, p 2. This would seem to accord with general notions regarding punishment, and indeed there would appear to be many parallels between, for example, family discipline and legal punishment: see also note 67 supra. As Walker points out, punishment need not be by the state: it has different names depending on the forum in which it is imposed. “When imposed by the English-speaking courts it is called ‘sentencing’. In the Christian Church it is ‘penance’. In schools, colleges, professional organisations, clubs, trade unions, and armed forces its name is ‘disciplining’ or ‘penalizing’”: note 52 supra, p 1. For all this I shall not get weighed down on the identity of the punisher. This discussion is concerned with the social institution of punishment as authorised by the state and for the purposes of this paper I will assume that punishment is imposed by a person in legal authority.

[71] T Hobbes, Leviathan, Washington Square Press (1969) ch xxviii, emphasis added.

[72] T Honderich, Punishment: The Supposed Justifications, Penguin Books (1984) p 15, emphasis added. This definition is shortened at p 19 to include only the words in italics.

[73] Ibid, p 208.

[74] J Bentham, Principles of Morals and Legislation (1789) ch 13.2.

[75] Note 65 supra, p 2.

[76] N Christie, Limits to Pain, Martin Robertson (1981).

[77] RA Duff, “Punishment, Citizenship & Responsibility” in H Tam (ed), Punishment, Excuses and Moral Development, Avery Aldershot (1996) 1 at 2.

[78] Note 52 supra, p 1.

[79] A von Hirsch, Past or Future Crimes, Manchester University Press (1986) p 35. See also Ten who states that punishment is not merely the imposition of unpleasantness on the offender: “the imposition is made to express disapproval or condemnation of the offender's conduct which is a breach of what is regarded as a desirable and obligatory standard of conduct” (note 65 supra, p 2).

[80] For the sake of completeness, in my view punishment is an unpleasantness; the taking away of something of value for a wrong actually or perceived to have been committed: see M Bagaric, “The Disunity of Sentencing and Confiscation” (1997) 21(4) Criminal Law Journal 191 at 197.

[81] The fact that a conviction also must normally be recorded when a suspended sentence is imposed is not an integral part of the suspended sentence. This association is merely contingent; there is nothing to prevent a sentencing system making a conviction optional where a suspended sentence is imposed.

[82] Which are the only type of offences for which a suspended sentence may be restored: Sentencing Act 1991 (Vic), s 31(1); Powers of Criminal Courts Act 1973 (UK), s 23(1).

[83] The individualised nature of the risk of imprisonment which stems from a suspended sentence, as opposed to the risk of imprisonment faced by the community generally which follows from laws with universal application is also irrelevant. This is evident from the fact that criminal laws applying to only a relatively small section of the community (such as workplace safety laws which apply only to employers, or laws which apply only to lawyers, police, estate agents and the like) are not considered by their nature to be more severe.

[84] For example, see R v Ottewell [1970] AC 642 at 650.

[85] For example, see Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 487-9. See also note 23 supra, p 197.

[86] In fact, as we have seen, even where there is a breach it is not mandatory that the term be restored.

[87] See L Sebba and G Nathan, “Further Explorations in the Scaling of Penalties” (1984) 24 British Journal of Criminology 221 at 229. The most severe sanction was rated one.

[88] There was also a suspended sentence coupled with a $1000 fine, which ranked 23rd: ibid at 228.

[89] There was a strong correlation from the results of each group, hence it was legitimate to average the scores of the four groups.

[90] Which was ranked 26th: note 87 supra at 228.

[91] Which was ranked 33rd: ibid.

[92] Ibid at 231. An earlier survey conducted by Sebba revealed that a $250 fine was regarded as more severe than a six month suspended sentence: L Sebba, “Some Explorations in the Scaling of Penalties” (1978) 15 Journal of Research in Crime and Delinquency 247.

[93] N Walker and C Marsh, “Do Sentences Affect Public Disapproval?” (1984) 24 British Journal of Criminology 27 at 31. A suspended sentence was regarded as the least punitive of the penalties which respondents were requested to place in order of most to least punitive. The rankings which occurred were: 12 months imprisonment, one month imprisonment, $100 fine, $40 fine, community service, probation and, finally, the suspended sentence.

[94] A Kapardis and DP Farrington, “An Experimental Study of Sentencing by Magistrates” (1981) 5 Law and Human Behaviour 107.

[95] A Freiberg and RG Fox, “Sentencing Structures and Sanction Hierarchies” (1986) 10 Criminal Law Journal 216 at 228 and 220.

[96] N Morris, “Dangerousness and Incapacitation” in A Duff and D Garland (eds), A Reader on Punishment, Oxford University Press (1994) 241 at 241.

[97] See also PA Fairall, “Violent Offenders and Community Protection in Victoria - The Gary David Experience” (1993) 17 Criminal Law Journal 40 at 50. Fairall defines a preventive sentence as “the incarceration of individuals so as to incapacitate or prevent them from committing crimes in the future”.

[98] The economy of dangerousness was not always the risk to physical integrity. In the early part of this century it was the risk to one's property: J Pratt, Governing the Dangerous: Dangerousness, Law and Social Change, Federation Press (1997) pp 8-70. Pratt provides a thorough analysis of the evolution of the concept of dangerousness. Pratt states that the focus of dangerousness mainly relates to violence, offences against children and sexual offences, and that the focus on habitual offenders has disappeared, p 100.

[99] Note 4 supra at 125.

[100] For example, see Sentencing Act 1991 (Vic), ss 18A-P (see Moffat v R (1997) 91 A Crim R 557, where an indefinite sentence was imposed); Penalties and Sentences Act 1992 (Qld), Pt 10 (see R v Eather (unreported, District Court (Qld), Daly DCJ, 26 October 1993) where an application for an indefinite sentence was refused); Sentencing Act 1995 (NT), ss 65-78; Sentencing Act 1995 (WA), ss 98-101; Criminal Law (Sentencing) Act 1988 (SA), Pt 2, Div III; Criminal Code 1924 (Tas), s 392 (see Read v R (1997) 94 A Crim R 539). The most extreme indefinite sentence provision which relies on predictions of future dangerousness is found in Texas, where capital punishment can follow instead of life imprisonment where “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (Texas Code Crim Proc Ann s 37.071).

[101] For example, see Crimes Act 1900 (NSW), ss 115, 443; Criminal Law (Sentencing) Act 1988 (SA), s 22; Sentencing Act 1991 (Vic), Pt 2A; Criminal Justice Act 1991, ss 1(2)(b), 2(2)(b). For an analysis of such provisions, see RJ Henham, “Dangerousness, Rationality and Sentencing Policy” (1997) 26 Anglo-American Law Review 493.

[102] Indefinite and additional sentences also violate the principle of proportionality, see Chester v R [1988] HCA 62; (1988) 165 CLR 611 at 619 where indefinite sentences were described as stark and extraordinary.

[103] As amended by the Community Protection (Amendment) Act 1991 (Vic). For background leading to the passing of the Act, see D Greig, “The Politics of Dangerousness” in S Gerull and W Lucas (eds), Serious Violent Offenders: Sentencing, Psychiatry and Law Reform, Conference Proceedings, Australian Institute of Criminology (1993) 47 at 56-8. The Community Protection (Violent Offenders) Bill 1992 (Vic), which was a more generalised form of the Community Protection Act 1990 (Vic), was ultimately not passed following heavy criticism by the Parliament of Victoria Social Development Committee, Inquiry into Mental Disturbance and Community Safety: Third Report: Response to the Draft Community Protection (Violent Offenders) Bill, 1992.

[104] See also Criminal Justice Amendment Act 1993 (NZ), s 34(1)(b) which provides for preventive detention where the court is satisfied “that there is substantial risk that the offender will commit a [relevant] offence upon release”.

[105] For a discussion regarding the perceived difficulties in defining dangerousness: see P Mullen, “Mental Disorder and Dangerousness” (1984) 18 Australia and New Zealand Journal of Psychiatry 8; P Scott, “Assessing Dangerousness in Criminals” (1977) 131 British Journal of Psychiatry 140; D Greig, note 103 supra at 53.

[106] Community Protection Act 1990 (Vic), ss 4, 8.

[107] Community Protection Act 1994 (NSW), s 5(1).

[108] Sentencing (Amendment) Act 1993 (Vic), s 17.

[109] [1996] HCA 24; (1997) 189 CLR 51 (Kable).

[110] Toohey, Gaudron, McHugh, Gummow JJ; Brennan CJ and Dawson J dissenting.

[111] The separation of judicial power from executive and legislative power imposes two broad limits on governmental power. First, Parliament cannot usurp judicial power and, secondly, functions cannot be conferred on courts which are incompatible with the exercise of judicial power (it was this latter limit which was violated in Kable). Although Kable concerned state legislation, and the separation of powers doctrine was not a feature of the constitution of any of the states, the High Court nevertheless held that the doctrine was applicable to state courts because state courts are invested with and exercise federal jurisdiction (see note 109 supra at 143, per Gummow J; at 114-15, per McHugh J).

[112] Note 109 supra at 122, per McHugh J.

[113] For example, see ibid at 106-7, per Gaudron J; at 98, per Toohey J; at 122, per McHugh J; at 132-4, per Gummow J.

[114] For example, see ibid at 106-7, per Gaudron J; at 122, per McHugh J.

[115] Ibid at 122, per McHugh J.

[116] Ibid at 134, per Gummow J; at 98, per Toohey J.

[117] For comment regarding the legality of the Victorian Act see note 97 supra at 40, 46-9; D Wood, “A One Man Dangerous Offenders Statute - The Community Protection Act 1990 (Vic)” (1990) 17 Monash University Law Review 497 at 501-5. For an analysis of Kable, see J Miller, “Criminal Cases in the High Court of Australia” (1997) 21 Criminal Law Journal 92.

[118] See Victoria Law Reform Commission Report 31, The Concept of Mental Illness in the Mental Health Act 1986, 1990 where it is argued that preventive sentences are an affront to civil liberties.

[119] Note 52 supra, p 69.

[120] For a discussion regarding the use of fantastic examples, see note 65 supra, pp 18-25.

[121] Retributivism (under the banner of just deserts) has replaced utilitarianism, at least ostensibly, as the prime philosophical theory justifying punishment. However, I have previously argued that in reality a utilitarian theory of punishment still best fits the relevant sentencing variables: see note 80 supra. For an overview of the academic and social trends in punishment, see A Duff and D Garland, “Thinking about Punishment” in A Duff and D Garland (eds), note 96 supra 1 at 8-16; A von Hirsch, note 79 supra, ch 1; note 52 supra, ch 1; A Ashworth, note 37 supra, ch 13.

[122] See also J Floud and W Young, Dangerousness and Criminal Justice, Heinemann (1981) p 60. This observation is supported by Farrington who states that “the use of prediction within criminal justice decision making might be justifiable within a utilitarian approach to penal treatment”: D Farrington, “Predicting Individual Crime Rates” in D Gottfredson and M Tonry (eds), Prediction and Classification, University of Chicago Press (1987) 1 at 5.

[123] D Wood, “Dangerous Offenders and Civil Detention” (1989) 13 Criminal Law Journal 324 at 343.

[124] Note 96 supra at 238.

[125] D Wood, “Dangerous Offenders, and the Morality of Protective Sentencing” [1988] Criminal Law Review 424 at 425-6; note 123 supra.

[126] CS Lewis, “The Humanitarian Theory of Punishment” in S E Grupp (ed), note 67 supra 301 at 304. Further, it should be noted that, a sanction does not cease to constitute punishment merely because psychiatric treatment is offered: see Power v R [1974] HCA 26; (1974) 131 CLR 623.

[127] For an overview of the different theories see note 65 supra, pp 38-65; J Cottingham, “Varieties of Retributivism” (1979) 29 Philosophical Quarterly 238.

[128] See also note 71 supra, p 211.

[129] For example, see A Duff and A von Hirsch, “Responsibility, Retribution and the ‘Voluntary’: A Response to Williams” [1997] Cambridge Law Review 103 at 107.

[130] J Anderson, “Reciprocity as a Justification for Retributivism” (1997) 16 Criminal Justice Ethics 13. As Anderson points out, all of these factors are present in what Hart refers to as “crude Retributivism”. See HLA Hart, Punishment and Responsibility, Oxford University Press (1963) pp 231-7.

[131] J Anderson, note 130 supra at 13, 14.

[132] Ibid.

[133] Ibid.

[134] Note 68 supra, p 7.

[135] N Morris, note 96 supra at 250 suggests that diagnoses of dangerousness should be regarded as a statement about a person’s present condition, as opposed to a prediction of future conduct. The continuing offence concept is also adverted to by D Wood, note 125 supra at 429.

[136] For example, Crimes Act 1958 (Vic), s 21A.

[137] For example, Crimes Act 1958 (Vic), ss 20, 21.

[138] For example, Crimes Act 1958 (Vic), ss 22, 23.

[139] This would of course require an offence of ‘dangerousness’ to be created. This would best be achieved by making ‘dangerousness’ a continuing offence which only ceases upon the person appropriately attenuating his or her threatening behaviour. Duff, a leading retributivist, contends that punishment must be for an offence, and an offence is something which the “law prohibits and condemns as a moral wrong”: note 68 supra, p 153. It is arguable that the social unease created by dangerous people means that such a propensity is immoral, and thus there would not appear to be any fundamental retributive objection to creating an offence of dangerousness.

[140] H Gross, “Proportional Punishment and Justifiable Sentences” in H Gross and A von Hirsch (eds), Sentencing, Oxford University Press (1981) 272 at 272. See also J Floud and W Young, note 122 supra, p 138.

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

[142] See CR Williams, “Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the Gary David Case” [1990] MonashULawRw 10; (1990) 16 Monash University Law Review 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 PA Fairall, note 97 supra at 51, Williams offers no empirical evidence in support of such an assertion.

[143] J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312 at 322.

[144] See notes 96 and 125 supra; J Floud, “Dangerousness and Criminal Justice” (1982) 22 British Journal of Criminology 213; SR Brody and R Tarling, Taking Offenders Out of Circulation, HMSO, Research Study No 64 (1981); J Monahan and HJ Steadman (eds), Violence and Mental Disorder: Developments in Risk Assessment, University of Chicago Press (1994).

[145] J Floud, note 144 supra at 217.

[146] J Monahan, “The Prediction of Violent Behaviour: Toward a Second Generation of Theory and Policy” (1984) 141(1) American Journal of Psychiatry 10. Another study revealed a false positive rate of about 65 per cent: see K Kozol, “Dangerousness in Society and Law” (1982) 13 Toledo Law Review 241. For an extensive discussion on the research into dangerousness see P Shea, Psychiatry in Court, Saunders (1996) pp 155-63; note 98 supra, pp 171-7.

[147] Note 109 supra at 106.

[148] Ibid at 123. See also Veen v R [No 1] [1979] HCA 7; (1979) 143 CLR 458 at 462-7, 494.

[149] Note 96 supra at 244.

[150] For a good overview of the proportionality principle, see A Ashworth, note 37 supra; RG Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Monash University Law Review 489 at 492.

[151] For example, in R v Jenne [1956] Crim L R 495 the court reduced a term of imprisonment despite the fact that the court believed that “it is certain that the defendant will reoffend as soon as he leaves jail”.

[152] RG Fox, note 150 supra at 491. See also A Von Hirsh, “Censure and Proportionality” in A Duff and D Garland (eds), note 96 supra 115 at 115.

[153] RG Fox, note 150 supra at 491. For a historical overview of the proportionality principle, see RG Fox, “The Killings of Bobby Veen: The High Court on Proportionality in Sentencing” (1988) 12 Criminal Law Journal 339 at 350-1.

[154] Australian Law Reform Commission Report 44, Sentencing, 1988 at 15-16; note 4 supra at 492; note 55 supra at 5.

[155] Note 148 supra.

[156] Note 85 supra.

[157] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, 1986 at 154.

[158] Note 55 supra at [2.3].

[159] See A Ashworth, note 37 supra, pp 81-4.

[160] Criminal Justice Act 1991 (UK), ss 2(2)(a), 6(2)(b), 18.

[161] For example, see Channnon v R (1978) 20 ALR 1; R v Valenti (1980) 48 FLR 616 at 620; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 298; R v Radlich [1954] NZLR 86 at 87; R v El Karhani (1990) 21 NSWLR 370 at 377.

[162] Note 85 supra at 473. This distinction appears somewhat unclear. Fox suggests that it means that community protection is relevant to the fixing of a sentence within the outer limits established by other criteria by the notion of proportionality, as opposed to the view that community protection is a factor in determining a proportionate sentence: RG Fox, “The Killings of Bobby Veen: The High Court on Proportion in Sentencing”, note 153 supra at 348.

[163] Chester v R [1988] HCA 62; (1988) 165 CLR 611 at 618.

[164] Ibid. See also Chivers v R [1993] 1 Qd R 432.

[165] The principle is also given legislative recognition, for example Sentencing Act 1991 (Vic), ss 5(1)(a), (c) and (d); but cf s 6D(b), which provides that when a court is sentencing a serious offender (as defined in s 6B) it may impose a sentence longer than that which is proportionate to the gravity of the offence. See RG Fox, “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394; Criminal Justice Act (UK), ss 2(2)(a), 6(2)(b), 18(2)(a). See also Crimes Act 1900 (NSW), s 442B which allows disproportionate sentences in certain circumstances, so long as the sentence is not ‘unreasonably’ disproportionate: Veen v R [No 1], note 148 supra; Veen v R [No 2], note 85 supra.

[166] A von Hirsch, Censure and Sanctions, Oxford University Press (1993).

[167] See A von Hirsch, “The Politics of ‘Just Deserts’” (1990) 32 Canadian Journal of Criminology 397 at 398. See also A Von Hirsch, note 152 supra at 125.

[168] A von Hirsch, note 152 supra at 125.

[169] Note 74 supra, pp 165-74.

[170] A von Hirsch, note 79 supra, p 32.

[171] See M Maiden, “How Does a Man Worth More than $5 Billion Get Away with Paying No Tax?” Age, 15 October 1998, p 3.

[172] Packer rejected an offer to settle the matter with the Taxation Office out of court on the basis that he pay $30.55 for the three year period. Packer managed to minimise his tax essentially through the use of foreign tax shelters.

[173] It was for this reason that in 1996 the Victorian Parliament, concerned about the community outrage caused by a series of apparently lenient sentences imposed by courts, sanctioned a community sentencing survey. The survey was in “Crime & Punishment Insight: The Sentencing”, The Herald Sun, 29 July 1996. The results revealed that respondents wanted significantly tougher sentences to be imposed for numerous offences (“Crime and Punishment: Your Verdict”, The Herald Sun, 13 September 1996, pp 1, 4, 12-15). This led to a significant increase in the maximum penalty for many indictable offences, see Sentencing and Other Acts (Amendment) Act 1997 (Vic).

[174] See T Tyler, Why People Obey the Law, Yale University Press (1990) pp 107, 175-6. Following a 1984 study of approximately 1500 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. See also E Lind and T Tyler, The Social Psychology of Procedural Justice, Plenum Press (1988); M Bagaric, “Instant Justice? The Desirability of Expanding the Range of Criminal Offences Dealt With on the Spot” [1998] MonashULawRw 11; (1998) 24 Monash University Law Review 231.

[175] JS Mill, “On Liberty” in M Warnock (ed), Utilitarianism, Fontana Press (1986) 126 at 135: “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant”.

[176] R v Dodd (1991) 57 A Crim R 349.

[177] RG Fox, note 150 supra at 495; A Von Hirsh, Doing Justice, Hill and Wang (1976) p 73; A von Hirsch, note 79 supra.