Lock ‘em up and throw away the key?

Sentencing is the process by which a magistrate or judge decides what the consequences will be for someone who has been found guilty of breaking the law.

But how often do they get it right?

When evaluating whether sentences are too tough or not adequate, the average person should consider several key factors related to the justice system. Media representation/coverage of crime can often have bias and focus on extreme cases or sensational aspects, which can skew public perception. Moreover, news reports may not provide all the details, such as mitigating factors or the legal constraints the court was working within. Understanding these elements can help people form more informed opinions on the fairness and appropriateness of sentencing:

Sentencing Purposes

Courts in Victoria, like in other parts of Australia, must try to achieve one or more purposes (goals). These include:

Just punishment: The sentence should reflect the seriousness of the crime

Deterrence: Both specific deterrence (to discourage the offender from doing it again) and general deterrence (to discourage others) are important.

Rehabilitation: Some sentences are designed to help the offender reintegrate into society.

Community Protection: Sentences sometimes focus on protecting the public from dangerous offenders.

Denunciation: Sentences should reflect society's disapproval of the crime.

Understanding that a chosen sentence must balance these goals can help avoid oversimplifying them as merely "tough" or "lenient."

Legislation and Sentencing Guidelines

Statutory Minimums and Maximums: The law that defines an offence (crime) will prescribe the maximum penalty offence that can be imposed. Judges and magistrates will impose the maximum penalty only for the most serious example of an offence, or for the most serious example of an offender.

Some offences (such as many driving offences) have fixed penalties (such as a set fine or period of license suspension). Some serious offences are also subject to legislated sentencing schemes (e.g. Category 1 & 2 Offences, Category A & B offences, Standard Sentences) that limit the type and number of sentences that can be imposed. 

In some circumstances, the offence of manslaughter has a legislated minimum sentence.

Magistrates and judges are required to work within these legislated constraints and must also take into account factors like the gravity of the crime and any aggravating or mitigating circumstances.

Aggravating and Mitigating Factors

 Each case has unique circumstances that can either increase or decrease the severity of the sentence:

   - Aggravating factors: Prior convictions, the use of violence, or committing the offence in front of a child may lead to harsher penalties.

   - Mitigating factors: First-time offenders, showing remorse, or cooperating with law enforcement can lead to more lenient sentences.

Rehabilitation vs. Retribution

Some sentences might seem "lenient" because they prioritize rehabilitation more than harsh punishment, especially for younger or first-time offenders. This doesn't necessarily mean the system is "soft on crime," but rather reflects a view that rehabilitation can prevent future offences. There are different types of sentences.

The type of sentence imposed can vary significantly depending on the offence and circumstances. Some people may equate imprisonment with being "tough" on crime, but non-custodial sentences (e.g., community service or fines) might be more effective in certain cases:

   - Custodial sentences: Time served in prison.

   - Non-custodial sentences: Community corrections orders, fines, or treatment programs.

One important consideration is whether harsher sentences reduce reoffending. Research shows that excessively punitive measures don't always deter future crimes. A focus on rehabilitation might seem lenient but can result in lower recidivism, benefiting public safety in the long run.  People sometimes compare sentences without considering the distinct circumstances of each case. Different offences (e.g., violent crimes vs. non-violent crimes) and different offender backgrounds (e.g., repeat offenders vs. first-time offenders) justify different kinds of penalties.

Victim Impact

Sentencing in Victoria must consider the impact on the victim(s). The average person may feel emotionally inclined to demand harsher sentences after high-profile cases, but it’s important to balance emotional reactions with legal fairness. Sentences can be appealed by either the prosecution or the defence. If a sentence seems too harsh or too lenient, it can be reviewed by a higher court. This process ensures there’s a mechanism to correct potential imbalances.

The Victorian Sentencing Advisory Council provides data and educational resources to help the public better understand how these principles are applied in practice. Rather than focusing solely on whether a sentence "feels" right, it’s valuable to evaluate how well it achieves the goals of justice, including punishment, rehabilitation, and protecting society.

SAC wrote a report (at the request of the then Attorney General) recommending sentencing guidelines, but these recommendations have not been implemented.

See https://www.sentencingcouncil.vic.gov.au/publications/sentencing-guidance-victoria-report