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MIRKO BAGARIC[*]
‘The treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’[1]In terms of the interests it deals with, sentencing is probably the most important area of the law. However, intellectually it is also the least sound. Decisions are often made not on the basis of binding rules and principles, but rather according to the intuitive sentiments of sentencers. As a result, sentencing law violates the rule of law virtues of consistency and fairness. In order to remedy this and to make constructive reform possible in sentencing law and practice it is necessary to adopt a justification for punishing offenders. This paper outlines the theories of punishment which could underpin the sentencing system and thereby overcome many of the fundamental problems which currently exist and pave the way for future reform.
Sentencing law is arguably the most important area of law: the sanctions available against offenders target the most cherished and coveted individual interests, such as the right to liberty and property and one’s reputation. Despite this, sentencing law is, and has traditionally been, the least principled and coherent body of law. Judges have displayed a remarkable reluctance to any fetters being imposed on their sentencing discretion. This has been tacitly supported by legislatures in most jurisdictions, particularly in Australia and the United Kingdom, which, on the whole, have refused to endorse specific sentencing goals. The unprincipled nature of sentencing practice has led to what Ashworth labels a ‘cafeteria system’[2] of sentencing, which permits sentencers to pick and choose a rationale which seems appropriate at the time with little constraint.
This paper outlines the current judicial approach to sentencing[3] and argues that as a result of the wide discretion enjoyed by sentencers the rule of law virtues of consistency and fairness are trumped by the idiosyncratic intuitions of sentencers. Recent changes in some Australian jurisdictions have gone a small way to remedying the inconsistent nature of sentencing law; however, it is contended that this does not necessarily address the more fundamental problem concerning the lack of fairness. In order for meaningful progress to be made in sentencing law, it is necessary to make clear and adopt a rationale for punishing people. Logically this requires analysis of the concept of punishment. I shall first outline the link between punishment and sentencing and then discuss the theories of punishment, which could be used to underpin and justify a system of sentencing. This is followed by a consideration of the current approach to sentencing and the problems stemming from it. Finally, some possible benefits of adopting a justification for punishment and sentencing are outlined.
Sentencing is the system of law through which offenders are punished. The main issues which must be addressed by any sentencing system are the types of sanctions that are appropriate and the factors that are relevant in fitting the sanction to the crime.[4] Punishment is the study of the connection between wrongdoing and state imposed sanctions. The main issue raised by the concept of punishment is the basis upon which the evils visited by the state on offenders can be justified. Sentencing and punishment are inextricably linked, with punishment being the logically prior inquiry. In order to properly decide how and how much to punish, it must first be established on what basis punishment is justified and why we are punishing.[5] For example, the lex talionis, an eye for an eye, theory of punishment requires us to select a sanction which as far as possible equates with the nature of the crime, whereas a communicative theory of punishment favours sanctions which will best inform offenders of the wrongfulness of their crimes.
Absent an understanding of why sanctions are imposed and what they seek to achieve, only sheer luck or an incredible coincidence would produce an appropriate sentencing system. Luck and coincidence have their proper role in life: they are central to the enjoyment of a lottery or raffle and to the joys, or ills, of bumping into old acquaintances and friends. But they are not appropriate variables when a person’s liberty and standing in the community are at stake. As is discussed below, the sentencing systems of most jurisdictions have not strongly endorsed a particular rationale for sentencing. There are two main contemporary theories of punishment that can form the foundation of a coherent sentencing system.
Utilitarianism is the theory that the morally right action is that which produces the greatest amount of utility. The utilitarian theory of punishment is merely an application of the general utilitarian theory of morality to the specific issue of punishment, and in this domain it does not matter significantly which version of utilitarianism is adopted.[6] Although utility has been defined in numerous ways, the most persuasive and coherent version of utilitarianism is hedonistic act utilitarianism, which provides that the utility which should be maximised is happiness or pleasure, which is the sole intrinsic good, and that pain is the sole inherent evil.[7]
The utilitarian starting point regarding punishment is to consider the most direct and immediate effect of punishment, and from this perspective it is a bad thing because it causes unhappiness to the offender. It is only justified because of the wider contingent benefits it produces, which it is felt outweigh the bad consequences. The good consequences of punishment, which are thought to outbalance the suffering inflicted on the offender, include discouraging the offender from re-offending and potential offenders from committing crimes in the first place, and once the offender is apprehended by rehabilitating him or her and where necessary incapacitating the offender. If there are several forms of punishment which produce the same good consequences we must chose the one which imposes the least unpleasantness on the offender. Thus the utilitarian theory of punishment is forward looking: the commission of a criminal act does not justify punishment; rather punishment is only warranted if some good can flow from it.
The other main contemporary theory of punishment is retributivism. Vast arrays of theories of punishment have been advanced that are classified as retributive.[8] Due to the diversity of these theories, it has proven remarkably difficult to isolate a distinctive feature of theories carrying the tag.[9] All retributive theories assert that offenders deserve to suffer, and that the institution of punishment should inflict the suffering they deserve, however, they provide immensely divergent accounts of why criminals deserve to suffer.[10]
The purest retributive theory is intrinsic retributivism,[11] which claims that punishment is justified because it is intrinsically good to punish wrongdoers. Other retributive theories appeal to the instrumental effects of punishment to justify the practice. These include the capacity for punishment to convey blame or reprobation;[12] to induce repentance, self-reform, reparation and reconciliation;[13] or to restore the fair balance of benefits and burdens which is disturbed by crime.[14]
Due to the diversity of retributive theories it is difficult to identify a principle which represents a retributive pedigree. The true picture seems to be that there are many different theories of punishment wearing the retributive label and that there is no distinctive badge worn by, or internal unifying principle running through, all of them. But they do have at least one thing in common: they do not appeal to the likely achievement of consequentialist goals to justify punishment.[15] Rather the moral wrongness of the act in itself supposedly justifies a punitive response: punishment is proper even when ‘we are practically certain that that attempt [to attain conseqentialist goals, such as deterrence and rehabilitation] will fail’.[16] This alludes to another characteristic feature of retributive theories: they are essentially backward looking; punishment is an appropriate response to a past offence, irrespective of other incidental effects of it.[17] This is in contrast to utilitarianism which, as I stated earlier, is concerned only with the likely future consequences of imposing punishment. Although most retributive theories rely on factors or virtues outside the parameters of the act of punishment itself to justify punishment, they are still regarded as retributive because the virtues invoked are not, at least expressly, consequentialist in nature, but instead are those commonly associated with a deontological account of morality.[18]
Many also believe that retributive theories are characterised by the claim that punishment must be equivalent to the level of wrongdoing.[19] This is a claim enthusiastically endorsed by Andrew von Hirsch, one of the main contemporary proponents of retributivism, who asserts that:
Sentences, according to this [the just deserts] principle, are to be proportionate in their severity to the gravity of the defendant’s criminal conduct .... In such a system, imprisonment, because of its severity, is visited only upon those convicted of serious felonies. For non-serious crimes, penalties less than severe imprisonment are to be used.[20]
He argues that the basis for proportionality is, essentially, that ‘punishment is the vehicle for condemnation and as a matter of fairness punishment must be proportionate since the severity of the sanction expresses the stringency of the blame’.[21] However, the view that punishment should be commensurate with the seriousness of the offence does not provide a justification for punishment; it simply acts as a restraint on it.[22] Proportionality is also not a distinctly retributive virtue. Utilitarians have also been known to invoke it. For example, Bentham argued that proportionality has a secure utilitarian foundation, and that in fact it has a central role in a utilitarian theory of punishment. Bentham asserted, as a secondary principle, that crimes should be punished in proportion to the harm done to the life and security of others in society.[23] If crimes are to be committed it is preferable that offenders commit less serious rather than more serious ones.
Therefore sanctions should be graduated commensurate to the seriousness of the offence so that those disposed to crime will opt for less serious offences. Absent proportionality, potential offenders would not be deterred from committing serious offences any more than minor ones, and hence would just as readily commit them.[24]
Notwithstanding the fact that the appeal to the virtue of proportionality is not distinctive of a retributive pedigree, it remains the case that the link between it and retributivism is pragmatically one defining feature of the retributive theory.[25]
Retributivism, under the banner of just deserts, has replaced utilitarianism, at least ostensibly,[26] as the prime philosophical theoretical underpinning of punishment[27] in many parts of the Western world, particularly the United States. It is also generally perceived that the philosophical leaning towards retributivism has permeated many sentencing systems,[28] despite the gulf that normally exists between theories of punishment and sentencing practice and the tendency of the sentencing systems of most jurisdictions not to adopt a primary rationale for sentencing. In this regard, the comments of Andrew Ashworth about a decade ago have proved somewhat prophetic:[29]
Across the common law world and elsewhere, new sentencing systems are being introduced or recommended. For example, Sweden, the US federal jurisdiction and several American states have already begun to operate new sentencing schemes, and there are important proposals on the table in Canada, the State of Victoria and the Australian federal jurisdiction ... In planning a new system it is necessary to think seriously about the purposes of sentencing, and it is at this stage that the “just deserts” approach has been influential in many of the jurisdictions mentioned.[30]
However, this has not long been the case. Only a few short decades ago, Mabbott stated that ‘[i]n the theory of punishment, retribution has been defended by no philosopher of note [for over fifty years] except Bradley. Reform and deterrence are the theories accepted in principle and increasingly influential in practice.’[31] In the 1975 Victorian decision of R v Williscroft, Starke J stated that ‘[r]etribution as an element of punishment has by now, in my opinion, disappeared, or practically disappeared from our criminal law .... Reformation should be the primary objective of the criminal law.’[32]
Broadly, there have been two main reasons for the movement away from utilitarianism as the prime theory of punishment since about the 1970s: one is pragmatic and the other theoretical.
The first problem was the perceived failure of penal practice and the treatment based goals of sentencing to measure up to the prime utilitarian objectives of deterrence[33] Research findings relating to rehabilitation, in particular, were at one point so depressing, that a ‘nothing works’ attitude was pervasive.[35] Given the apparent failure to achieve such lofty and ambitious sentencing goals, the natural inclination was to set the sights on aims which were far more achievable. Future orientated goals of punishment, such as rehabilitation and deterrence, made way for backward looking considerations where the main goal was to ensure that criminals got what they deserved. Thus the aim of doing more good through the prison system was replaced by the goal of doing justice, where justice broadly equated to imposing punishment that was proportionate to the severity of the crime.[36] On this rationale, so long as the punishment fitted the crime, or was thereabouts,[37] the sentencing system was a ‘success’, irrespective of the indirect consequences stemming from it. Retributivism was the clear beneficiary of such an approach.
The decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that at the theoretical level there was a move towards rights based moral theories and widespread support for arguments that utilitarianism commits us to abhorrent practices, such as punishing the innocent. Retributivism, too, has been heavily criticised. It has been persuasively argued that retributive theories cannot account for the link between crime and punishment without, ultimately, relying on consequentialist considerations.[38] Retributive theories also have difficulties in finding a basis for incorporating the relevance of an offender’s personal circumstances, particularly deprived social background,[39] into the sentencing calculus.
The on-going philosophical debate which continues to rage regarding the appropriate theory of punishment appears to be reflected by community division on the matter. A survey released in 1988 revealed that in England two out of five people preferred a retributive theory of punishment; the rest endorsed utilitarian aims such as rehabilitation, deterrence and community protection.[40] A more recent survey in Victoria revealed that most people wanted heavier sentences for most serious offences.[41] Superficially, this may be viewed as support for a retributive theory of punishment, however, on closer analysis this may not be so, given that there is no necessary connection between retributivism and harsher penalties.[42]
Philosophical discussion in the area of punishment and sentencing has been largely confined to the justification of punishment. On the other hand, legal analysis has primarily focused on sentencing issues. Oceans of ink have been spilt on each issue; however, the spills have rarely merged and punishment and sentencing have generally evolved with only a cursory consideration of each other.[43]
Despite the fact that the sentencing practices of many jurisdictions have a leaning towards a retributive theory of punishment, most sentencing codes do not expressly adopt a particular theory of punishment[44] and where sentencing objectives are declared they are often inconsistent. Good examples are the Sentencing Act 1991 (Vic) and the Criminal Justice Act 1991 (UK). The Sentencing Act 1991 (Vic) expressly endorses the apparently competing goals of deterrence, rehabilitation and incapacitation (which are paradigm aims of a utilitarian theory of punishment) on the one hand, while simultaneously promoting retributive objectives such as retribution and just deserts,[45] and provides that these five objectives are exhaustive of the purposes for which sentences may be imposed. However, by failing to prioritise the respective importance of these objectives it may seem that they were adopted in blissful ignorance of any inconsistency or tension between them.[46] Further, by effectively covering the field regarding virtually all of the possible objectives that one could seek to achieve through punishment, sentencers are given total discretion regarding the choice of sanction in relation to any particular offence.
Despite initial optimism, the Criminal Justice Act 1991 (UK) fares no better. The White Paper upon which the Act is based clearly supported a retributive theory: ‘the first objective of all sentencing is denunciation and retribution for the crime’.[47] In light of this it has been suggested that the Act gives desert and proportionality a primary role.[48] However, nowhere in the Act is this made express and in fact the Act states nothing about the rationales for sentencing. Indeed the only consideration which in certain circumstances can trump all others is incapacitation, which is clearly a utilitarian goal,[49] and matters not relevant to the just deserts principle have been invoked as important sentencing considerations.[50] The vagueness of sentencing law is further highlighted by the fact that numerous competing principles have at various times been declared as the most important sentencing objective.
In Walden v Hensler, Brennan J stated that the ‘chief purpose of the criminal law is to deter those who are tempted to breach its provisions’.[51] The primacy of deterrence (both specific and general) was also propounded in R v Radich:
[o]ne of the main purposes of punishment ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all “civilised countries, in all ages, [deterrence] ... has been the main purpose of punishment, and it still continues so”. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only light punishment.[52]
However, the courts have also held that the ultimate purpose of sentencing is community protection. In Channon v R, Brennan J stated:
The necessary and ultimate justification for criminal sanctions is the protection of society from the conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of the offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose. In R v Cuthbert (1967) 86 WN (pt1) (NSW) 272 at 274, Herron CJ, in a judgment in which Sugerman and Walsh JJA agreed, said: “The function of the criminal law and the purposes of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from the crime. The sentence should be such as, having regard to all the proved circumstances, seems at the same time to accord with the general moral sense of the community and to be likely to be a sufficient deterrent both to the prisoner and others: per Jordan CJ, R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554; 53 WN 157. Courts have not infrequently attempted further analysis of the several aspects of punishment (R v Goodrich (1952) 70 WN (NSW) 42, where retribution, deterrence and reformation are said to be its threefold purposes). In reality they are but the means employed by the courts for the attainment of the single purpose of the protection of society”.[53]
Furthermore, the High Court decisions of Veen (No1)[54] and Veen (No2)[55] stamped proportionality as the predominant objective of sentencing in Australia.[56] This is in keeping with its high regard in other jurisdictions. For example, in relation to the Canadian sentencing system it has been noted that: ‘[t]he paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence’.[57]
To make the picture even more confusing, proportionality, deterrence and community protection do not exhaust the list of the ‘most’ important sentencing objectives. As Fox and Freiberg note, apart from deterrence and community protection, denunciation, rehabilitation and education have also been treated by the courts as the only or predominant purpose of criminal sentencing.[58]
The division between punishment and sentencing, which in my view is responsible for the unsatisfactory state of sentencing law, has not gone by without raising at least the hint of suspicion: ‘[i]n democracies whose members are divided about ... [theories of punishment] legislators realise that ambiguity, not honesty, is the best policy’.[59] A similar view is held by Andrew Ashworth who, in the context of commenting on the failure of the Crime and Justice Act 1991 (UK) to provide a rational and coherent objective for sentencing, states that ‘it is evident that the need to analyse sentencing from the point of view of philosophy and principle often gives way in practice to stronger political and pragmatic pressures’.[60] But I suspect that Nigel Walker is far closer to identifying the true reason for the gulf between punishment and sentencing:
I have known magistrates who confused retribution with deterrence, and judges of appeal who confused it with denunciation. Reports of committees hurry past the fundamental issues because the draftsmen want to avoid dissension. Writers of textbooks on criminal law dispose of them in a few smooth paragraphs, knowing that they are skating on thin ice, with deep waters underneath. The deep waters are where moral philosophers lurk, preying like sharks on each other and on practitioners who are careless enough to put their feet through the ice.[61]
Whatever the reason for the dissociation between sentencing and punishment, due to the problems discussed below it is evident that there is a serious need for greater integration.
The lack of a rationale or basis for sentencing law and practice has resulted in several problems. These are highlighted and perpetuated by the judicial approach to sentencing.
(i) The Instinctive Synthesis
The misfortune of the division between punishment and sentencing is no more evident than in Victoria where the courts have flatly refused to adopt an analytical and open approach to sentencing and instead have opted for what they term an ‘instinctive synthesis’ technique:
[U]ltimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless ... to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination ... .
We are aware that such a conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate.[62]
This is now the standard sentencing approach. Recently Hunt J stated:
A lot of heartburn will also be saved in the Court of Criminal Appeal if the sentencing judge recognises that sentencing is largely an intuitive process. That process does not lend itself to the application of rigid formulas. The influences of the different factors to be taken into account in each case are infinitely various ....
The more unnecessarily analytical the judge becomes, the greater the room for attack upon the sentence on appeal.[63]
In R v Lawson, Wu & Thapa, the New South Wales Court of Criminal Appeal re-affirmed the instinctive synthesis method:
Sentencing is not carried out by the applications of formulae. As I have said before, it is largely an instinctive process, and the influences of different factors are infinitely various in different cases.[64]
This approach enables, if not encourages, judges to determine the sentence on the basis of what appears to them to be intuitively correct. A similar approach also had a prominent role in moral theory once upon a time. It was called Intuitionism. Most philosophers dismissed it as a tenable moral theory about half a century ago.[65] The trouble with intuitions is that they all differ, and there is no basis to test the accuracy of intuitive ‘truths’: principle and expedience become indistinguishable. A practice which relies on intuitive sentiments leaves itself open for bias, ignorance and prejudice as the guiding lights. A century ago it would no doubt have appeared intuitively correct to deny women the right to vote, and a little further back the enslavement of black Americans would also not have troubled the intuition too deeply. This is not to totally dismiss the important role that intuitions can have. No doubt, intuition, like luck, can be a good thing. It plays a big part when we decide which shirt to wear, which restaurant to dine at, or even which partner to choose, but it has no role in decisions concerning all that is meaningful in people’s lives.
It has been argued that even where the instinctive synthesis holds sway, the sentencing discretion is not totally unconstrained since the courts cannot ignore the fundamental principle that ‘like cases should be treated alike’.[66] However, two separate studies, about twenty years ago, determined that there were between 200 and 300 factors that were relevant to sentencing,[67] thus it will be rare, if ever, that one will come across like cases. The main casualties stemming from an absence of a primary or coherent sentencing rationale have been fairness and certainty.[68]
(i) The Reluctance of the Courts to Fetter the Sentencing Discretion
The preference in favour of flexibility over certainty is more marked in sentencing law than any other area of the law. The courts have adopted the approach that little guidance can be obtained from case comparisons for the purpose of determining the appropriate sentence. Such comparisons are thought almost meaningless due to the unique circumstances of each case.[69] Not only is there an absence of a coherent rationale, but the principle of stare decisis also appears to have little operation when it comes down to sentencing law. On infrequent occasions the courts have, however, appeared to accept a meaningful role for relying on case comparisons as a means of utilising ‘judicial wisdom’. In R v Oliver, Street CJ stated:
The task of the sentencing judge ... is to pursue the ideal of even handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. The collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.[70]
The advantages of such an approach were adverted to in Zakaria v R:
“One rule of fundamental importance in the administration of justice is that like cases should be treated alike (and unlike cases differently). This entails some knowledge of sentences imposed in previous cases. Prior sentences are not binding on courts but they do provide a yardstick against which a particular determination may be made. Indeed, earlier decisions provide a more reliable indication than the statutory maxima as to the appropriate sentence to be applied in a particular case. Ultimately, fair sentencing involves sentencing by analogy.”[71]
However, the weight of judicial opinion is firmly against curbing judicial sentencing discretion to any discernible extent. For example, in De Havilland v R it was stated that previous sentencing decisions are not binding due to the fact that there are almost an infinite number of variables, and it was then noted that:
As in any branch of the law which depends on judicial discretion, decisions on sentencing are no more than examples of how the Court has dealt with a particular offender in relation to a particular offence. As such they may be useful as an aid to uniformity of sentence for a particular category of crime; but they are not authoritative in the strict sense.[72]
The determination of the courts to not fetter the sentencing discretion is perhaps best illustrated by their reluctance in many jurisdictions to formulate guideline sentencing judgments.[73] Guideline judgments consider numerous variations of a specific offence and the importance of factors commonly raised in mitigation and aggravation for that offence and then suggest an appropriate sentencing tariff for that offence. In the United Kingdom, the Court of Appeal has refused to develop sentencing guidelines[74] to complement the, essentially, sentencing policy introduced by the Criminal Justice Act 1991 (UK), despite encouragement and an expectation that it would do so.[75] It has been suggested that this reluctance was one of the catalysts for the Crime (Sentences) Act 1997 (UK) which, among other things, introduced mandatory sentences.[76] Even in relation to the sentencing guidelines which have been developed by the Court of Appeal, the Court has been quick to reduce their significance by declaring that within the guidelines there is still a considerable degree of flexibility.[77] In Victoria, recommendations by the Victorian Sentencing Committee for statutory provisions recognising the use of guideline judgments[78] led to a provision in the Sentencing Bill 1990 (Vic) permitting the making of such judgments. However, following opposition by the majority of Supreme Court judges to such judgments, who felt that they were unnecessary in the ‘close knit’ Victorian legal community, the provision was ultimately not enacted.[79]
The lack of uniformity in sentencing law also stems from the fact that sentencing judgments do not necessarily detail all the considerations which were considered as being relevant to the decision, and accordingly it is a pointless task to attempt to determine the precise factors which influenced the sentencing discretion.
Given the unwillingness by the courts to adopt techniques which may curtail the sentencing discretion, it is fair comment to charge that, in contrast to every other area of the law, ‘appellate courts have actively sought to deny their own relevancy in sentencing decisions. Indeed they have embraced a culture of negation – they are loath to intervene, many judgments are ex tempore and/or unreported ... and it is the silences that ring the loudest’.[80]
(ii) The Importance of Consistency The problem with an unfettered sentencing discretion is that it must lead to inconsistent sentencing,[81] and this offends the principle of equality before the law and the rule of law maxims that the law must be certain and that legal standards must be declared in advance.[82]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as the badge of fairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.[83]
It may be countered that the failure of judges and legislatures to define uniform aims and goals of sentencing is no more an illustration of the not atypical tension between the desirability for certainty and flexibility in the law; the apparent greater flexibility in sentencing law being necessary due to the larger amount of considerations which are relevant.
However, the wide discretion enjoyed by sentencers is more fundamental than a ‘mere’ conflict between certainty and flexibility: ‘[o]ut of the rabble of case analysis of sentencing decisions, there is one principle which emerges supreme: judicial discretion. The search for the Holy Grail discovers nothing; but it is a Nothing held high ...’.[84] Sentencing is the one area of law where judges have attempted to steer clear not only of inflexible rules, but also of broad principles. Sentencing law is so inexact that, even where it is felt that a particular factor is relevant to the sentencing discretion, it is not uncommon that there will be confusion regarding whether it is aggravating or mitigating. Thus, ‘[f]actors such as diminished responsibility, intoxication, personal disadvantage, addiction, the public interest and even guilty pleas’[85] are capable of being either aggravating, mitigating or irrelevant.
In R v Hayes, Kirby J stated that:
cases vary infinitely, just as human experience does. Although in drug cases, as in other cases, there are common features, the variety of circumstances must be kept in mind before attempting to derive “principles” from sentences imposed in apparently like cases ....[86]
(iii) Rules, Principles and Policy
This is a remarkable concession about the arbitrariness of sentencing law. There are broadly only two different types of norms that comprise a legal system: rules and principles. Rules (such as those setting maximum speed limits on the roads) apply to conclusively resolve an issue; hence rules never clash.[87] Whereas principles (such as no person should benefit from his or her own wrongdoing)[88] are standards observed because of a requirement of fairness or justice and secure some individual or group right. These are of broader compass and carry a certain amount of weight; several principles can apply to one situation, with the most relevant or important resolving the outcome.[89]
The important thing to note is that in a legal system, rules and principles exhaust the type of considerations open to the courts. There is nothing else. Absent both, we have total randomness. Little wonder, sentencing has been described as the ‘... high point in anti-jurisprudence.’[90] Once a sentencer has purged him or herself of legal rules and principles, there can only be two other guiding lights: personal sentiments or policy considerations,[91] neither of which can legitimately fill the void. Personal sentiments obviously have no role in a community governed by the rule of law and, as Dworkin notes, there are two reasons why judges cannot decide cases on the basis of policy grounds. Judges are not elected and to invoke policy grounds is to apply retroactive law, unlike a principled decision which merely applies existing rights and duties.
There is no doubt that due to the limited nature of human foresight, all future situations cannot be anticipated in advance and accordingly, in any area of the law, it is necessary to maintain some degree of discretion. But sentencing practice is so nebulous and unconstrained that even the outcome of stock in trade cases is unpredictable. As the situation presently stands, sentencing law is so indeterminate that judges are free to switch from one rationale to another as they choose according to the case or type of case before them, and this amounts to a liberty to determine and to switch policy at a whim.[92]
(iv) The ‘Indefinite Number of Variables’ Argument
The strongest argument that can be advanced in defence of the present approach is that, because the factual circumstances that sentencing principles must apply to are so varied, it is not possible to fully develop or prioritise the principles beforehand. However the infinite number of variables argument is circular. The only reason that there are so many factors is because there is no coherent justification for sentencing and hence there is no basis upon which any factors may be excluded. Unless principles are adopted and standards set, not only is there no basis for identifying relevant considerations, but logically, there are no criteria which can be invoked to exclude irrelevant factors. Thus the safest and only thing to do is to ‘let it all in.’
The potential application of a supposedly infinite number of variables and situations in the sentencing domain does not entail that lines cannot be drawn. A perfect illustration of this is the manner in which the substantive criminal law has developed. The criminal law governs every human activity and transaction, from scratching one’s nose to detonating a bomb in a crowded building. Accordingly, there are literally an infinite number of variables that are potentially relevant to this field of law. Despite this, clear lines have been drawn between conduct that is relevant (ie, unlawful acts) and conduct that is irrelevant (ie, lawful conduct). And what is more, the demarcation between conduct which is lawful and unlawful is essentially widely accepted and uncontroversial. The reason for this ‘success’ is that a (sound) justification for the criminal law has, effectively, been adopted.
The purpose of the criminal law is generally to prevent people doing acts which cause, or seriously threaten, harm to others.[93] The criminal law no longer aims to also enforce public standards of decency; thus the trend in most jurisdictions has been to abolish offences relating to such matters as homosexuality and prostitution. Even more generally, the criminal law is not concerned to regulate the self-regarding conduct of individuals. Thus, matters such as suicide and attempted suicide are no longer offences.[94] Notable exceptions to this are drug offences and the prohibition against euthanasia. However, in both these instances there is growing community support for decriminalisation. The other significant exception is the proscription against the infliction of serious injury. One cannot consent to the infliction of bodily injury unless there is ‘good reason’ to justify the relevant behaviour,[95] due to the importance the courts place on physical integrity and the unsavoury social consequences which would ensue were injurious conduct generally condoned.[96] However, the list of good reasons is becoming so extensive that this prohibition is becoming less and less material. Conduct which satisfies the good reason test includes, surgery,[97] sporting contests,[98] religious rituals (such as circumcision), ear and body piercing and tattooing; it appears that these categories are not closed.[99]
The only reason that the criminal law is now in a state where it is approaching something like a coherent body of law, where rational and justifiable distinctions are capable of being drawn, is that it has a primary rationale. If sentencing law is to mature and progress in a similar fashion the same approach is necessary.
(v) Moves To Greater Consistency – Mandatory Sentencing and Guideline Judgments
Despite the inconsistent nature of sentencing, some jurisdictions have adopted measures which will no doubt improve uniformity. For example, the Northern Territory has introduced mandatory jail terms[100] for certain property offences, such as criminal damage, stealing (but not shoplifting), unlawful entry into buildings and unlawful use of a vehicle.[101] For adults, the penalty for a first offence is 14 days imprisonment; 90 days for a second offence, and 12 months where the offender has two or more prior property offences. For juveniles, aged 15 or 16, a mandatory term of 28 days in a detention centre is applicable for second or subsequent property offences. These provisions have been subject to several criticisms; however, the most perplexing aspect of them is that what amounts to the sternest sentencing provisions in Australia are targeted at property offences, as opposed to offences against the person.[102]
In a less drastic move, the New South Wales Court of Appeal finally appears to have accepted the need for greater certainty in sentencing. A specially constituted bench of the Court in R v Jurisic[103] for the first time issued a guideline judgment.[104] Spigelman CJ accepted that some limits must be imposed on the judicial sentencing discretion:
The existence of multiple objectives in sentencing – rehabilitation, denunciation and deterrence – permits individual judges to reflect quite different penal philosophies. This is not a bad thing in a field in which “the only golden rule is that there is no golden rule” (Geddes (1936) 365 SR (NSW) 554 at 555 per Jordan CJ). Indeed, judges reflect the wide range of differing views on such matters that exists in the community. However, there are limits to the permissible range of variation. The Courts must show that they are responsive to public criticism of the outcome of sentencing processes [Emphasis added.][105]
In a double triumph towards greater sentencing uniformity, the NSW Court of Appeal only several months earlier accepted that sentencing statistics have a meaningful role in the sentencing inquiry. While noting that caution needs to be exercised in using such data, Spigelman CJ stated that sentencing statistics may provide an indication of the general sentencing standards and thus ‘may be of assistance in ensuring consistency in sentencing’.[106]
The extent to which sentencing statistics and guideline judgments will ultimately attenuate the judicial sentencing discretion remains to be seen. However, what is less speculative is that the courts in this country (or at least some of them) may finally be coming around to the realisation that uniformity in sentencing is an important matter.
Although there are positive signs for improving the level of consistency in sentencing, there is no room for complacency. Consistency in sentencing is merely a necessary, but not a sufficient virtue towards the attainment of a just sentencing system. Inconsistent application of legal norms is a sure sign of unfairness; however consistency of its own is not a telling indicator. Consistency is merely an external restraint on the application of substantive rules or principles. If the substantive norms are themselves unfair, consistent application of them merely perpetuates the injustice. Thus while guideline judgments and reliance on sentencing statistics by courts should lead to greater consistency, this will facilitate discernible betterment of the system only if the principles underpinning sentencing law are themselves justifiable. Unfortunately this is not the case.
The lack of fairness in sentencing stems from the absence of a justification for punishing people. In order for the state to legitimately impose an unpleasantness on its citizens it is necessary to provide a rationale for this. To this end, the Victorian Sentencing Committee noted that:
Fairness in the sentencing process involves a mechanism by which it is ensured that like cases are treated in a like way, and that irrelevant considerations are not taken into account in determining a sentence, and neither is there any other ground giving rise to unequal treatment. The articulation of relevant factors to be considered in the sentencing process may well result in fairness being achieved.[107]
The absence of a justification for sentencing puts into question the legitimacy of the entire practice and reflects a contemptuous disregard by the state towards offenders. The integrity of offenders is violated by the failure of the system to declare a justification for why it is that they must be deprived of a coveted interest, such as the right to liberty.
(i) The Danger of Sentencing Change Without Principle
The absence of a justification for punishment also stifles progressive reform. This, however, has not deterred the legislature from making significant sentencing change. Sentencing law in most Australian jurisdictions and the United Kingdom over the past decade or so has undergone significant change, with the common thread being to impose heavier penalties for many offences by using several different techniques, the most visible result being a significant increase in the prison population.[108] The recent wholesale sentencing changes in Victoria provide a good illustration of the potential unfairness that can result through ad hoc and unprincipled reform.
(ii) Increased Penalties
The most transparent and obvious recent change to the Victorian sentencing system has been an increase in the maximum penalties of offences. Most indictable offences now carry a heavier maximum penalty than they did at the start of the decade. The Sentencing Act 1991 (Vic) increased the maximum penalty for many indictable offences, effective from 22 April 1992. This was followed by another penalty hike for most indictable offences effective from 1 September 1997.[109] For example, in the space of about five years, the maximum penalty for culpable driving[110] has increased from seven years to 15 years and then 20 years; rape[111] has increased from 10 years[112] has changed from 15 to 20 years; handling stolen goods[114] has changed from 14 years to 10 years and now back up to 15 years; and intentionally causing serious injury[115]
The maximum penalty attached to an offence is the single most relevant determinant regarding the seriousness of an offence. Accordingly, the breadth and significance of the changes constitutes a substantial change to what von Hirsch calls the ordinal proportionality of criminal offences.[117] Ordinal proportionality is a measure of the relative seriousness of offences and has three components: parity,[118] ranking order,119 and spacing of penalties.[120] While there may have been a need for changes to the scaling of the relative seriousness of offences, in order for such changes to be justified they must be founded on a broader rationale; one which identifies the principles that are relevant to the determination of offence seriousness. To this end, von Hirsch and Jareborg state that several considerations are relevant. The first involves an appraisal of the types of interests which the paradigm instance of an offence violates or threatens to infringe upon.[121] Next, it is necessary to determine the effect that violating the relevant interests typically has on the victim.[122] Finally, it is necessary to consider the offender’s culpability and the remoteness of the harm.[123]
This rationale for the determination of offence seriousness is by no means beyond challenge. In my view, the only two factors that are relevant to the determination of the relative seriousness of an offence are culpability and the consequences of the offence. However, for the purposes of this discussion, identification of the correct considerations which are relevant to the seriousness of an offence is not crucial. What is critical is that a wholesale change to the relative ranking of offence seriousness is an important matter and can be properly accomplished only through an application of relevant principles and standards.[124] Otherwise, an unsatisfactory regime of offence ranking is merely being replaced with an arbitrary one.
The first set of increases, in 1992, followed a well researched and detailed report regarding the need for consistency, simplicity and coherency in the scale of maxima for criminal offences.[125] However, the only discernible impetus, and apparent basis, for the last lot of increases was the result of a ‘sentencing survey’, sanctioned by the government, which called for harsher sentences;[126] hardly the most satisfactory method of determining appropriate sentencing principles. Not only should the law help shape public sentiment regarding crime (rather than simply reflect existing public sentiments),[127] but to the extent that public opinion about sentencing is relevant in assessing the degree of community outrage about crime, the law should look not to the actual feeling in the community, but rather informed public opinion: ‘it would be discreditable for the law to seek to give effect to extremist views of those palpably disabled from a fair judgment by reason of prejudice, ignorance or other such factors.’[128] It is only in an area of law where no guiding principle or purpose exists that such predilections could have induced such fundamental change.
(iii) Indefinite Sentences
Indefinite sentences have also relatively recently become a feature of the Victorian sentencing landscape.[129] A key feature of the indefinite sentencing provisions is that an indefinite sentence may only be imposed where the court is ‘... satisfied, to a high degree of probability, that the offender is a serious danger to the community ... [Emphasis added.]’[130]
Although past conduct may be regarded as a powerful indicator of future propensities[131] and arguably basic values and predispositions are pervasive,[132] current empirical evidence reveals that there is no reliable method for predicting dangerousness. Parke and Mason have noted that:
... there is a wealth of material on the assessment of risk and the prediction of dangerous behaviour. But despite these vast outpourings, there are no reliable actuarial and statistical devices as yet that can predict with any degree of certainty or likelihood of dangerous behaviour.[133]
In fact, the empirical evidence which does exist reveals a tendency to greatly over exaggerate the probability of future dangerous behaviour.[134] Few serious offenders commit other serious offences[135] and previous studies have shown that in predicting dangerousness, psychiatrists are wrong about 70 per cent of the time.[136] The curious feature of the use of psychiatric predictions of dangerousness is that the psychiatric profession has repeatedly stressed the unreliability of such predictions, yet the courts appear to be increasingly reliant on them.[137] Thus, there is no basis for confidence that a court which undertakes an inquiry into the dangerousness of an individual, using the best possible resources available, is likely to come to the correct decision. This incontrovertible truth, however, did not stand in the way of what, one assumes, must have seemed a good idea at the time when it was decided to introduce the indefinite sentence provisions.
One area where the Victorian legislature has been particularly active is the introduction of a range of ancillary orders available against offenders. In addition to the normal unpleasantness that accused historically face as a direct consequence of criminal charges, namely, the imposition of criminal sanctions, now there are other painful new measures that may be employed against them.
(iv) Confiscation Proceedings
The Victorian Parliament has enacted the toughest confiscation laws in Australia in a bid to seize the assets of those accused of criminal offences.[138] This includes provisions which allow confiscation of property or money even where an offender is not convicted of an offence[139] and reverse onus provisions whereby those convicted of certain offences face confiscation of property unless they can prove the property was acquired lawfully.[140] While it has been argued that offenders who derive profits from their criminal activities deserve to have these profits confiscated on the basis of the principle that people should not profit from their own wrongdoing,[141] it is a quantum leap to then propose that the process through which confiscation occurs should not be subject to safeguards which have evolved over centuries, such as the presumption of innocence and burden of proof beyond reasonable doubt. It may be contended that confiscation proceedings are essentially civil in nature. Hence, protections of this nature are not warranted, but this is a distinction in form only. It ignores the reality that the catalyst for confiscation proceedings is supposed criminal behaviour and that the pain of deprivation of property is often every bit as severe as the imposition of traditional criminal sanctions.[142]
(v) Compensation to Victims
Finally, victims may now be awarded damages against the accused for pain and suffering[143] sustained as a result of an offence pursuant to section 86 of the Sentencing Act 1991 (Vic).[144] At first glance, one might think that there is nothing novel about this; victims have always had the capacity to sue offenders on the basis of tortious actions such as battery, assault, false imprisonment and negligence for harm suffered as a result of crime. However, unlike tortious actions, with section 86 applications the victim is not put to the task of establishing the cause of action; this is done by the state through the criminal prosecution.
While in substance section 86 applications may not be objectionable,[145] the procedure by which they are generally determined places the accused in a particularly precarious position and prevents him or her from fully defending his or her civil liability. All of the material that a victim wishes to place before a court to enable it to determine the cause, nature and extent of the pain and suffering must be done before the offender is sentenced.[146] This normally means that section 86 applications are finalised at the end of the plea, but before sentence. An informed offender who is sceptical about the causal nexus between the crime and injury or feels that the victim is exaggerating the degree of suffering would be reluctant to cross examine too vigorously on such matters, as it may be interpreted as an absence of remorse – which is a critical sentencing consideration. There is also the problem that a section 86 award does not provide a sentencing discount to the accused. This is because reparation and punishment have traditionally been thought to be antagonistic,[147] since reparation is concerned with compensation to a person for what is essentially a private wrong and sentencing focuses on wrongs that are so serious that they offend not only against the interests of the victim, but the community as a whole. This ignores the fact that, pragmatically, a monetary award against the accused imposes an unpleasantness[148] on him or her and given that it is directly consequent upon criminal behaviour is punitive in character. There is no question that an accused who has a section 86 award made against him or her has been dealt with more harshly than an accused who has been dealt with in an identical fashion except for the making of a section 86 award.
Without an acute understanding of what we are seeking to achieve through sentencing law, significant changes such as these can be nothing other than illconsidered and it is all too probable that they are unlikely to be anything but regressive. This is not to contend that any changes to the sentencing system should be suspended pending the adoption of a coherent rationale. Where obvious shortcomings or anomalies are evident they should no doubt be remedied.[149] But, wholesale changes to matters which will significantly affect people’s lives should be saved until a clear direction for the practice is developed.
(vi) Other Advantages of Principled Sentencing – Presumptive Sentencing?
Once a rationale for sentencing is endorsed, not only will this have considerable advantages in terms of improvements to consistency, but it will also open the door for the possibility of fairer and more efficient sentencing practices. By way of illustration, one such possibility is the introduction of presumptive sentencing and the flow on benefits there from.
Presumptive sentencing involves the formulation of standard penalties for particular offences or instances of particular offences. This system can be as crude or as complex, in terms of the number of variables which are taken into account, as is thought appropriate. At its simplest, a standard penalty, say a fine of $1000, is set for all breaches of a particular offence, such as unlawful assault, and there is no variation or allowance made for the offender’s personal circumstances (such as prior criminal history) or the seriousness of the particular offence compared to other offences of that type. A more sophisticated system would be sensitive to both the personal circumstances of the offender and the relative seriousness of the offence compared to other offences of that type. An example of such a system is the Minnesota grid system.[150] The vertical axis of the grid lists the severity levels of offences in descending order of severity (there are ten different levels). The horizontal axis provides a (seven-level) criminal history score, which reflects the offender’s criminal record. The presumptive sentence is the sentence which appears in the cell of the grid at the intersection of the offence score and offender score. Where the sentence is one of imprisonment, the sentence is not expressed precisely, but rather within a small range to allow for the operation of aggravating or mitigating circumstances; apart from the offender’s prior criminal history. Sentences may only be imposed outside range where substantial and compelling circumstances exist.[151]
Once a sufficiently widespread presumptive sentencing table is formulated, the way is then left open for enormous cost and efficiency savings in the criminal justice system by greatly expanding the range of matters dealt with on the spot by way of infringement notice, and thereby largely removing the courts from the sentencing process.[152] Such a suggestion may be readily dismissed by some as being unworkable from the start on the basis that no presumptive sentencing system could hope to deal with all the variables relevant to sentencing, and would therefore lead to even more unfairness than the system at present. As sentencing law currently stands, there is a lot of merit in this view. However, one of the principal advantages of adopting a particular justification for punishment will be a significant reduction in the number of such factors. For example, if a pure retributive rationale of punishment is adopted, the offender’s personal circumstances would be effectively removed from the sentencing calculus, leaving only the objective seriousness of the offence to be determined. In terms of the general feasibility of such a system, it should also be pointed out that at present the vast majority of criminal offences (about 85 per cent),[153] albeit generally the less serious ones, are already dealt with in precisely such a fashion, by means of on the spot penalties.[154]
In any event, it is not the purpose of this paper to argue in favour of such a system, but rather to merely highlight that if a justification for punishment is established, such potentially promising developments could be considered in a meaningful manner.
Due to the void between the philosophy of punishment and sentencing practice, sentencing has been dragged up rather than being developed as a coherent social institution and body of knowledge. Sentencing law has essentially been developed and implemented in an ad hoc fashion without a real appreciation or serious commitment to fundamental principles which are logically relevant to the punishment of offenders. The haphazard nature of sentencing is reflected in the fact that most systems incorporate an unhappy mix of different theories of punishment, and is exacerbated by the fact that even in jurisdictions where certain sentencing objectives are expressly adopted, there is usually no attempt to rank the respective, often competing, goals. The reluctance of courts and legislatures to prioritise the relevant sentencing considerations gives sentencers a free reign to exercise their mysterious intuitions. Such an approach makes it virtually impossible for progress to be made in the discipline of sentencing. If we do not know why and how a particular conclusion has been reached (that is, why a particular sanction was imposed), it is not possible to subject the decision, in any serious respect, to logical evaluation. At present we have a process where certain factual data is entered; the data is then subjected to poorly defined variables and a conclusion is formed. But given that the relevant considerations are always to some extent conflicting and are not prioritised, we are normally not adequately informed of the rationale underlying the decision. Conflicting principles without weight are vacuous, since they can be used to justify any conclusion whatsoever.
As a consequence, the present sentencing system is unfair and inconsistent. ‘(J)udges ... frequently confess that the longer they perform the task of sentencing, the less confidence they have that they know what they are doing. Sentencing has been described as the most “painful” and “least rewarding” of judicial tasks.’[155] However, given the importance of sentencing, this is no reason to give up on attempting to ascertain a coherent justification for the practice. A difficult task is still worth undertaking if the potential gains are high. In order to have a coherent, transparent and justifiable sentencing system, the relevant principles must not only be articulated, but also prioritised. This may lead to mistakes being made along the way. But the gravest mistake is not to attempt the task at all. By being open and forthright about why we punish people, the courts would make their decisions subject to considered analysis and comment and thereby amenable to improvement and refinement, as opposed to possibly merely promulgating existing errors. This is the type of approach recommended by the Council of Europe, which stated that rationales for sentencing should be declared and where these rationales conflict, priorities should be stated and where possible a primary rationale should be declared.[156]
It is to this end that exertion in the area of sentencing law should be put. Although both major contemporary theories of punishment have been heavily criticised, the attacks are not necessarily insurmountable, and certainly have not been so overwhelming as to make the prospect of convergence in this area remote.[157] It is only after this task is undertaken that progressive sentencing reform will be possible and the foremost consideration on a defence barrister’s mind prior to a plea will not be which judge or magistrate will be hearing the matter, but rather the state of the LAW.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1999/23.html