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Sentencing study shows surprising results
Does the punishment fit the crime?
It’s a question that sparks debate in newspaper pages and on talkback radio just about any time a judge makes a decision in a high profile criminal court case.
More often than not, judges are portrayed as too lenient and out of touch with general community expectations. Brief and sometimes sensationalist media reports which adequately fail to explain the often complex issues surrounding the facts of criminal cases don’t help.
In recent years, Victoria has steered towards harsher sentencing with measures including the registration of serious sexual and violent offenders, the use of indefinite sentences and a reduction in suspended sentences. In 2004, the state government set up the Sentencing Advisory Council after a review highlighted shortcomings in the state’s sentencing system.
But a Melbourne University study has debunked the populist view that judges are too willing to make excuses for offenders.
The Melbourne Criminology Sentencing Study found when the full facts of a case – including any mitigating factors and more details about the offenders – are explained to the public they will often give more lenient sentences than those handed down by the courts.
Criminologist Dr Austin Lovegrove said the findings show opinion polls and newspaper reports calling for harsher sentences for criminals and criticising judges’ lenient sentences may not reflect the public’s true opinions.
During the two-year study, four actual cases were presented directly to 471 participants, drawn from 32 workplaces throughout Victoria.
The three retired and one reserve County Court judge who had presided over the cases spoke to the 32 groups, each of about 15 people. Before they did, Dr Lovegrove explained to the groups sentencing law and how judges determine sentences.
Participants were told about sanctions available to the courts and their dollar costs, and they were also told the maximum possible and average sentences for the offences they were considering.
The cases included multiple rapes, at knifepoint, of a young woman in her home; an armed robbery of $1100 at a gaming venue by a man carrying a pistol; a multiple stabbing and the theft of about $1 million worth of goods from a company by two employees.
Once the participants had completed their sentencing, the judge told them what sentence had in fact been imposed.
In three of the four cases where male offenders were jailed, a clear majority of study participants imposed a non-parole period less than that of the judge. The sentences decided by the community groups varied widely – including from 15 years jail to 12 months jail for the rapist and 10 years jail to a good behaviour bond or similar for the armed robber.
Rather than prison, study participants called for treatment for those offenders with personality disorders. In the cases involving two female offenders – one a co-assailant with the man who stabbed two people and the other an employee acting under the direction of a senior manager and who did not benefit very greatly from the crime – the participants wanted an alternative to a prison sentence. The female involved in the theft of goods was the sole carer of two chronically sick children.
The results question the wisdom of increasing the severity of sentences to satisfy what is believed to be a harsher public.
More information
From the LIV Bookshop How Judges Sentence by G Mackenzie, $66
Useful web link www.justice.vic.gov.au
Disclaimer: The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Mr Brendan Kelly, Ms Eleanor Coates, or Sam Marash of our office.
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