Criminal law  -  The Australian Law Reform Commission  - Last modified on 10 November, 2010.

4.73 Where family law disputes are regarded as ‘private’ disputes, involving litigation between individual litigants, criminal law—like child protection law—is ‘public’ in the sense that the state has a clear role to play in the investigation and prosecution of offences. It has been said that the criminal law is designed to maintain the social order and to stipulate the fundamental requirements for a person’s treatment of others.^[130] It is difficult to identify a single underlying philosophy of the criminal law although central to the concept of criminality are the notion of individual culpability and the criminal intention for one’s action.^[131] As some criminal law academics have contended:

What we choose to call criminal law in fact comprises a number of different practices with a variety of rationales rather than a single principled response to diverse social behaviour. We have criminal laws rather than criminal law.^[132]

4.74 Professor Andrew Ashworth has described the construction of the criminal law as ‘unprincipled and chaotic’ and

not the product of any principled inquiry or consistent application of certain criteria, but largely dependent on the fortunes of successive governments, on campaigns in the mass media, on the activities of various pressure groups, and so forth.^[133]

4.75 Nonetheless, the following discussion describes some functions of the criminal law, particularly in the context of sentencing. Chapter 10 discusses the policy basis of a specific aspect of criminal procedure, namely bail.

4.76 Judicial pronouncements and legislative provisions have emphasised the protective role of the criminal law, particularly in seeking to protect innocent members of the community who are unable to protect themselves.^[134] The South Australian sentencing legislation, for example, states that the primary objectives of the criminal law include protecting the safety of the community^[135]—in particular, children—from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.^[136]

4.77 Punishment for past criminal conduct is an essential component of any criminal justice system. There is a significant amount of academic literature on the underlying justification for punishment, largely dominated by two theories. The utilitarian theory of punishment justifies punishment on the basis that its benefits outweigh its detrimental effects. Proponents of this theory consider that punishment has the potential to reduce crime.^[137] On the other hand, the retributive theory of punishment justifies punishment as an appropriate moral response to the voluntary commission of an offence, regardless of its effects.^[138]

4.78 To the extent that the criminal justice system integrates and considers restoration and rehabilitation—either at the sentencing stage or as a diversionary practice—the orientation is forward-looking, with an emphasis on prevention of further offending via treatment and healing.

4.79 Understanding the various purposes of sentencing is integral to a consideration of the policy basis of criminal laws.^[139] When a person is sentenced for a family violence offence or for a breach of a protection order that sentence will be imposed in furtherance of specific objects.

4.80 Many state and territory sentencing acts expressly set out the purposes of sentencing.^[140] The commonly cited purposes of sentencing are retribution, deterrence, rehabilitation, incapacitation, denunciation, and in more recent times, restoration. The sentencing acts of NSW and the ACT also specify that a purpose of sentencing is to make the offender accountable for his or her actions.^[141]

4.81 The main purposes of sentencing are considered below. The purposes of sentencing may sometimes conflict, but some purposes—such as retribution and deterrence—can be pursued simultaneously.

Retribution

4.82 Retribution—often referred to as ‘punishment’ in legislation and case law—is derived from the retributive theory of punishment. It is the oldest theory of punishment based on concepts of vengeance and responsibility.^[142] It is advocated in the ‘eye for eye’ principle in the Book of Leviticus in the Old Testament.^[143]

4.83 Proponents of the retribution theory disagree about why offenders deserve to be punished. Some argue that it is to eliminate the unfair advantage the offender gained over other law abiding citizens by committing the offence; while others say that it is to satisfy a debt to society.^[144] Those who advocate for ‘just deserts’ consider that offenders deserve to be punished but that the punishment should be proportionate to the gravity of the offence.^[145]

4.84 A number of state and territory sentencing acts set out retribution as a sentencing purpose in varying language:

• to ensure that the offender is adequately punished for the offence;^[146]

• to punish the offender to an extent or in a way that is just in all the circumstances;^[147] or

• to ensure that the offender is adequately punished for the offence in a way that is just and appropriate.^[148]

Deterrence

4.85 Deterrence is derived from the utilitarian theory of punishment.^[149] There is widespread support for the proposition that the mere existence of a criminal justice system has the effect of deterring persons from committing criminal offences.^[150] This systemic effect is commonly referred to as ‘absolute deterrence’. Other forms of deterrence arise specifically in the context of sentencing, and describe the deterrent effect of the sentence both on the future behaviour of other people and of the offender. These types of deterrence are known respectively as general deterrence and specific deterrence.

General deterrence

4.86 General deterrence assumes that offenders are rational and will therefore refrain from engaging in criminal conduct if the consequences of their actions are perceived to be sufficiently harsh. The assumption that offenders are rational—when some do not in fact undertake a rational analysis of their actions prior to committing an offence—is one basis upon which the effectiveness of general deterrence has been challenged.

4.87 In its 1988 report, Sentencing, the ALRC objected to general deterrence on the basis that it was unfair to punish one person by reference to the hypothetical crime of another.^[151] However, in its report, Same Time Same Crime: Sentencing of Federal Offenders, the ALRC agreed that general deterrence is an established and legitimate purpose of sentencing, having regard to judicial pronouncements on the importance of general deterrence, and the purposes of sentencing articulated in other jurisdictions.^[152]

4.88 A number of state and territory sentencing acts set out general deterrence as a purpose of sentencing. This is usually done in language to the effect that a purpose of sentencing is to prevent crime by deterring or discouraging other persons from committing the same or similar offences.^[153] The South Australian sentencing legislation specifies the deterrent effect any sentence under consideration may have on other persons as a matterto which a court is to have regard in determining sentence, to the extent that it is relevant and known to the court.^[154]

4.89 In sentencing for family violence offences the importance placed upon general deterrence will depend on the circumstances of particular cases. For example, in R v Collins: Ex parte Attorney-General, the Crown appealed against the inadequacy of sentence imposed on a 17 year old father for causing grievous bodily harm to his three and a half month old son.^[155] In dismissing the appeal, the court made the following observations about general deterrence:

So far as general deterrence is concerned, this crime was not one of calculation but a spur of the moment explosion of anger and frustration. It is important here to keep steadily in mind that the respondent was little more than a child himself at the time of the offence. How the respondent came to find himself at the age of 17 years in the position of father to a three and half month old baby without the assistance of adult supervision and care was not satisfactorily explained. … The social structure which should have been in place to prevent the appalling situation in which the care of the child was left to the respondent and the child’s 16 year old mother were, lamentably, absent. …

In relation to general deterrence, I consider that the suggestion that juvenile fathers, similarly situated to the respondent, will be deterred by reflecting upon a custodial element in the sentence imposed on the respondent when they are minded to act violently towards an infant in their care out of tiredness, frustration and personal inadequacy is not so compelling as to persuade me that this consideration affords a ‘reason of substance’ to conclude that this Court should impose a sentence which includes a period of custody.^[156]

4.90 Officers of the ALRC observed that in a particular case of family violence at Burwood Local Court, Sydney, general deterrence was said not to be a factor in sentencing because the family violence was said to be at the ‘lower end’ of the scale of seriousness and it was unlikely that the offender would re-offend.^[157]

Specific deterrence

4.91 Specific deterrence seeks to prevent offenders from engaging in further criminal conduct by demonstrating to them the adverse consequences of their offending. Specific deterrence may be afforded greater emphasis when sentencing a repeat offender because there is an assumption that the previous sentence was ineffective in its deterrent effect.^[158] Specific deterrence may not be as significant in circumstances where an offender is considered unlikely to reoffend, such as where an offender has demonstrated significant remorse.^[159]

4.92 A number of state and territory sentencing acts set out specific deterrence as a sentencing purpose, usually in language to the effect that a purpose of sentencing is to prevent crime by deterring or discouraging the offender from committing the same or similar offence.^[160] The South Australian sentencing legislation specifies the deterrent effect any sentence under consideration may have on the defendant as a matterthat the court must have regard to in determining sentence, to the extent that it is relevant and known.^[161]

Rehabilitation

4.93 Rehabilitation looks to identify and address the underlying causes of criminal conduct, by changing an offender’s personality, attitudes, habits, beliefs, outlooks or skills to stop them from re-offending.^[162] It is derived from the utilitarian theory of punishment.^[163] Susette Talarico comments:

While retribution, deterrence and incapacitation are based on assumptions of free will, rationality and simple confinement, rehabilitation looks to the offender in a rather innovative and distinctly contemporary perspective. Assuming that criminal behaviour can be explained and predicted, rehabilitation focuses on a treatment approach to crime control.^[164]

4.94 A number of state and territory sentencing acts set out rehabilitation as a purpose of sentencing in the following terms:

• to promote the rehabilitation of the offender;^[165] or

• to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated.^[166]

4.95 The Tasmanian sentencing legislation states that a purpose of the Act—as opposed to a purpose of sentencing—is to help prevent crime and promote respect for the law by allowing courts to impose sentences aimed at the rehabilitation of offenders.^[167] The South Australian sentencing legislation specifies the rehabilitation of the offender as a matter that the court must have regard to in determining sentence, to the extent that it is relevant and known to the court.^[168]

4.96 In sentencing for family violence offenders, courts have remarked on the offenders’ prospects of rehabilitation,^[169] and have suspended sentences on the basis that offenders will—among other things—undergo treatment.^[170]

Incapacitation

4.97 Incapacitation aims to restrain an offender in order to render him or her incapable of re-offending.^[171] Imprisonment is one form of incapacitation. Other sentencing options that curtail an offender’s liberty—such as the use of electronic surveillance to track an offender’s movements—are also forms of incapacitation.

4.98 Collective incapacitation is the strategy of seeking to reduce crime by incapacitating more offenders, or incapacitating them for longer periods of time.^[172] Selective incapacitation is the strategy of trying to identify, and then incapacitate, certain offenders who are likely to re-offend.^[173] This strategy relies on predictions of future criminality—which have been criticised by some as inherently unreliable^[174] and often erroneous.^[175]

4.99 Provisions in sentencing legislation of a number of states and territories include the selective incapacitation of certain offenders.^[176] In addition, a number of state and territory sentencing acts state that a purpose of sentencing is to protect the community from the offender.^[177] The Western Australian sentencing legislation provides that a court must not impose a sentence of imprisonment unless it decides—among other things—that it is required to protect the community.^[178]

Denunciation

4.100 Denunciation is premised on the theory that a sentence can serve the purpose of communicating to the offender and the community the message that the law should not be flouted.^[179] In this regard, denunciation performs an educative role. Further, a sentence that denounces the conduct of an offender represents a symbolic, collective statement of society’s censure of the criminal conduct.^[180] The public opinion to be taken into account is ‘informed public opinion’, as opposed to actual public opinion.^[181] In Inkson v the Queen, Underwood J stated that:

The community delegates to the Court the task of identifying, assessing and weighing the outrage and revulsion that an informed and responsible public would have to criminal conduct.^[182]

4.101 A consideration of informed public opinion cannot, however, lead to the imposition of a sentence that is contrary to law.^[183]

4.102 A number of state and territory sentencing acts set out denunciation as a purpose of sentencing in the following terms:

• to denounce the conduct of the offender;^[184]

• to manifest the denunciation by the court of the type of conduct in which the offender engaged;^[185] and

• to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved.^[186]

4.103 In sentencing offenders for family violence offences, courts have specifically referred to the need for denunciation.^[187]

Restoration

4.104 While there is no universally accepted definition of restorative justice, it is essentially an approach to crime that is principally concerned with repairing the harm caused by criminal conduct and addressing the underlying causes of criminality. In this regard, restoration integrates elements of rehabilitation.

4.105 Restorative justice initiatives in Australia are diverse and employed at different stages of the criminal justice process, including sentencing. Examples of such initiatives are victim-offender mediation, conferencing and circle sentencing. Restorative justice is considered in Chapter 23.

4.106 The sentencing legislation of some states and territories refers either to restorative aims or restorative initiatives. For example, the sentencing legislation of NSW and the ACT states that a purpose of sentencing is ‘to recognise the harm done to the victim of the crime and the community’.^[188] The South Australian sentencing legislation mandates conferencing prior to the sentencing of Indigenous offenders. Victims of crime may choose to be present at such conferences.^[189]