Sentencing the multiple offender : judicial practice and legal principle
This study examines the approach of Victorian judges to the determination of sentence for an offender convicted of multiple offences. Given that a substantial percentage of criminal cases involve a multiple offender and that the majority of offences are committed by repeat offenders, the sentencing of such offenders is a matter of significant public policy interest. The study is based on qualitative interviews with a group of Victorian County Court judges, an analysis of sentencing data on rape, armed robbery and burglary from Victorian County Court records, and a legal review of High Court decisions and Victorian Court of Appeal decisions. The study examines the way judges apply the totality principle in sentencing multiple offenders; whether sentences imposed these cases conform to the principle of proportionality; and whether proportionality, in respect to the multiple offender, can be expressed as a detailed policy, with associated guidelines. The empirical work undertaken in this study indicates that there is a need to develop a more detailed and comprehensive set of sentencing principles and an associated numerical framework for guidance.
The impact of crime outcomes on public opinions on sentencing: in particular regards to recent "One Punch" legislation
. Australia has recently experienced a punitive swing in sentencing policies and legislation. Consequently, politicians have responded favourably to popular demands for harsher sentencing. A comprehensive review of the current literature has been undertaken to understand why the community has adopted such a punitive position. It has been suggested that the media have hypersensitised the public into believing that crime is much more prevalent than it actually is, resulting fu the individual fearing becoming a victim of crime. The public then chooses to elect politicians who appear to be concerned with their safety and the associated legislation. Expectancy/value theory contends that people's behaviour is motivated by what they expect to occur and the values which they hold. Public opinion also affects the way in which the goals of sentencing including retribution, rehabilitation, deterrence and incapacitation or protection of the community, are prioritised. Retribution is generally the most favoured principle in sentencing and therefore pro-retributive policies tend to be more supported, both in the media and by the public. This literature review will discuss how public opinion has the ability to influence sentencing policy and legislation. The influence media has on how crime and sentencing are perceived will also be examined and the principles underlying sentencing were investigated. Relevant theories that explain individuals' behaviour and what affects their values and opinions will also be discussed. Gender-specific disparities were investigated with respect to the type of sentencing goal people choose, to distinguish whether different genders prioritise the various goals of sentencing. Other issues discussed include factors influencing sentencing for offenders such as mitigating and aggravating factors, culpability, intentionality and foreseeability. This review of the literature aims to present an insight into how the opinions of individuals in society affect the manner in which sentencing is conducted.
Sentencing as a Human Process
Sentencing is not a neutral or mechanical act; it is a human process, highly charged affectively and motivationally. Sentencing decisions take place in a social environment of laws, facts, ideas, and people. This study of sentencing behaviour is primarily concerned with the mental processes involved in decision-making. It is based on intensive interviews and on measures of the information-processing ability of seventy-one full-time judges in Ontario. The work covers such topics as: problems of sentencing (particularly existing disparities); social and economic background of judges and their varying penal philosophies; the nature and measurement of judicial attitudes toward crime; punishment and related issues; prediction of sentencing behaviour based on attitude scales (which the author has constructed) and also on 'fact patterns perceived by judges'; and the impact of social and legal constraints on the sentencing process. The study concludes that there exists a very high correlation between a judges definition of situation and the sentence which he imposes and that while sentences meted out for a particular law violation under similar circumstances may differ among judges, judges are 'highly consistent within themselves.' Using these conclusions the author constructs a model of judicial behaviour and shows how this model can be used to predict and to explain sentencing and breaks new ground in the use of the social and behavioural sciences as sources of data to explain the sentencing process.