Abstract
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.
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Notes
von Hirsch and Ashworth (2005).
NSW examples have been used. See Crimes Act (1900).
Above n 1, 84–85.
Hoare v The Queen (1989).
Sentencing Act (1991) (Vic) s 5(2) (daa–db); Sentencing Act (1995) (WA) s 6(2)(b); Crimes (Sentencing) Act (2005) (ACT) s 7(1) (g); Sentencing Act (1995) (NT) s 5(2) (b); Criminal Law (Sentencing) Act (1988) (SA) s 7; Sentencing Act (1997) (Tas) s 3(h); Crimes (Sentencing Procedure) Act (1999), (NSW) s 3A(g); Penalties and Sentences Act (1992) (Qld) s 9(2) (c)(i).
Siganto v The Queen (1998).
R v P (1992).
R v RKB(1992).
See Cannon (2008).
Dingan (2003).
Pettit and Braithwaite (1998).
Hill (2008).
GA Res 40/34, Annex, 40 UN GAOR Supp (No 53), 96th Plenary Meeting, 214, UN Doc A/Res/40/53 (1986).
The Hon Bob Debus, Speech delivered at the Sentencing Conference (2008).
Tyrone Kirchengast (2007).
See, for example, the weighting of the views of the victim as appropriate to sentence in R v Newman and R v Simpson (2004). The views of victims become especially problematic where the victim forgives their offender. In such instances, the relevant perspective is that of the community. See R v Bradford (1988) per Street CJ ‘It does not of course lie in the hands of a victim to determine what punishment should be meted out for a criminal offence. Punishment can properly be tempered in the light of the victim’s attitude. But the community’s interest in ensuring law abiding conduct by its citizens must be given due weight when determining the sentence in a case such as this.’
Wolhunter et al. (2009).
As to Forum Sentencing, see Criminal Procedure Regulation (2005) (NSW) Sch 5.
Above n 1, 110.
Above n 14, 51–52.
Above n 13.
See generally above n 1.
Bagaric and Edney (2008).
Above n 1, 75.
Fox (1994).
See R v Williscroft (1975); As to the High Court’s reluctance to rule over the validity of a two stage sentencing process, see Bugmy v The Queen (1990) [6], ‘Before us, much of the applicant’s argument focused on the purposes of sentencing, with particular reference to what had been said by this Court in Veen v. The Queen (No.1) (1979) HCA 7; and in Veen v. The Queen (No.2) (1988) HCA 14; Counsel suggested that, since Veen (No.2), a method of sentencing, described as a two-step approach, has developed in the courts. This approach, it was said, involves first determining the outer limit of the sentence and then applying mitigating factors, if any, so as to arrive at an appropriate sentence. It was further suggested that had his Honour adopted such an approach he would have been less likely to fall into error. Such an approach was firmly rejected by the Victorian Court of Criminal Appeal in The Queen v. Young, Dickensen and West (unreported, 1 March 1990). In the view of that Court, this Court in Veen (No.2) “did not have in mind that a sentencer might, let alone should, proceed to arrive at the sentence to be imposed by a staged or structured approach”: at p 11.’
Above n 1, 143.
Above n 1, 147.
Above n 1, 144; von Hirsch and Jareborg (1991). Also see above n 27, 499. As to a critique of such an approach, see above n 25, 44.
Above n 1, 145.
Above n 1, 147.
Braithwaite (2003).
Above n 12, 136–156.
See above n 10.
This method is currently endorsed in NSW. See R v Way (2004).
R v Williscroft (1975) VR 292, 300.
Above n 1, 113. Also see Goulding and Steels (2007).
See Kay (2008).
Note that victim impact statements can be tendered for certain minor offences, although a conference or intervention would obviate the need for such a statement. The other means of integrating victim interests, for example, under ss 3A(g) or 21A of the Crimes (Sentencing procedure) Act (1999), do not call for the direct participation of the victim.
References
Journal Article
Bagaric, M., & Edney, R. (2008). The proportionality thesis in Australia: Application and analysis. International Journal of Punishment and Sentencing, 4(1), 38–50.
Cannon, A. (2008). Sorting out conflict and repairing harm: Using victim offender conferences in court processes to deal with adult crime. Journal of Judicial Administration, 18, 85–100.
Cossins, A. (2008). Restorative justice, child sex offences: The theory, the practice. British Journal of Criminology, 48(3), 359–378.
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Daly, C. (2008). Setting the record straight, a call for radical change: A reply to annie cossins on restorative justice, child sex offences. British Journal of Criminology, 48(4), 359–378.
Fox, R. G. (1994). The meaning of proportionality in sentencing. Melbourne University Law Review, 19, 498.
Goulding, D., & Steels, B. (2007). Developing, implementing and researching a communitarian model of restorative and transformative justice for adult offenders in magistrates’ courts. Murdoch University Electronic Journal of Law, 1, 27–50.
Hill, F. (2008). Restorative justice: Sketching a new legal discourse. International Journal of Punishment and Sentencing, 4(2), 51–81.
Kirchengast, T. (2007). Victim influence, therapeutic jurisprudence and sentencing law in the New South Wales court of criminal appeal. Flinders Journal of Law Reform, 10(1), 143–159.
Morris, N., & Zimring, F. (1969). Deterrence and corrections. ANNALS of the American Academy of Political and Social Science, 381(1), 137–146.
von Hirsch, A., & Jareborg, N. (1991). Gauging criminal harm: A living-standard approach. Oxford Journal of Legal Studies, 11, 1–38.
Book
Morris, N. (1974). The future of imprisonment. University of Chicago Press: Chicago.
von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing: Exploring the principles. Oxford: Oxford University Press.
Wolhunter, L., Olley, N., & Denham, D. (2009). Victimology: Victimisation and victims’ rights. Oxon: Routledge Cavendish.
Book Chapter
Braithwaite, J. (2003). Principles of restorative justice. In A. von Hirsch, J. Roberts, E. Bottoms, & M. Schiff (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (pp. 1–20). Oxford: Hart Publishing.
Dingan, J. (2003). Toward a systematic model of restorative justice. In A. von Hirsch, J. Roberts, & A. E. Bottoms (Eds.), Restorative justice and criminal justice: Competing or reconcilable paradigms? (p. 144). Oxford: Hart Publishing.
Kay, J. W. (2008). Murder victims’ families for reconciliation. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perpsective (p. 231). London: Routledge.
Pettit, P., & Braithwaite, J. (1998). Republicanism in sentencing: Recognition, recompense and reassurance. In A. von Hirsch & A. Ashworth (Eds.), Principled sentencing: Readings on theory and policy (pp. 317–335). Oxford: Hart Publishing.
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW).
Crimes (Sentencing) Act 2005 (ACT).
Crimes Act 1900 (NSW).
Criminal Law (Sentencing) Act 1988 (SA).
Criminal Procedure Regulation 2005 (NSW).
Penalties and Sentences Act 1992 (Qld).
Sentencing Act 1995 (NT).
Sentencing Act 1991 (Vic).
Sentencing Act 1995 (WA).
Sentencing Act 1997 (Tas).
Cases
Bugmy v The Queen (1990) 169 CLR 525.
Dale Robert Mitchell & Ors v The Queen & Anor (1998) WASCA 334.
Hoare v The Queen (1989) 167 CLR 348, 354.
R v Apostilides (1984) 154 CLR 563.
R v Birmingham (No 2) (1997) 69 SASR 502.
R v Bradford (unreported, NSWCCA, 6 May 1988).
R v Dodd (1991) 57 A Crim R 349.
R v FD; R v FD; R v JD (2006) 160 A Crim R 392.
R v Geddes (1936) 36 (NSW) SR 554.
R v Miller (1995) 2 VR 348.
R v Newman, R v Simpson (2004) NSWCCA 102.
R v P (1992) 64 A Crim R 381, 384.
R v Penn (1994) 19 MVR 367.
R v Previtera (1997) 94 A Crim R 76.
R v RKB (1992) NSWSC (unreported, Badgery-Parker J, 30 June 1992).
R v Slack (2004) NSWCCA 128.
R v Singh (2006) QCA 71.
R v Way (2004) NSWCCA 131.
R v Williscroft (1975) VR 292.
Siganto v The Queen (1998) 194 CLR 656.
Staats v R (1998) 123 NT 16.
Veen v. The Queen (No. 1) (1979) 143 CLR 458.
Veen v. The Queen (No. 2) (1988) 164 CLR 465.
Whitehorn v The Queen (1983) 152 CLR 657.
International Declarations
1985 United Nations declaration of basic principles of justice for victims of crime and abuse of power (GA Res 40/34), Annex, 40 UN GAOR Supp (No 53), 96th Plenary Meeting, 214, UN Doc A/Res/40/53 (1986).
Speeches
The Hon Bob Debus, Speech delivered at the Sentencing Conference 2008, National Museum of Australia, Canberra, 9 February 2008. Currently, the Judiciary Act 1903 (Cth) s 68(7–8) provides that the state practice be adopted with regard to Commonwealth offences prosecuted in state courts.
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Kirchengast, T. Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?. Criminal Law, Philosophy 4, 197–213 (2010). https://doi.org/10.1007/s11572-010-9088-3
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DOI: https://doi.org/10.1007/s11572-010-9088-3