Just deserts instead of potluck in sentencing

Recently the Australian Law Reform Commission tabled a report in federal Parliament, Same Crime, Same Time: Sentencing of Federal Offenders, which highlights gross sentencing inconsistencies. The report notes that “offenders who have committed the same crime can receive very different outcomes. To fix this palpable unfairness the report has called for the introduction of a new Federal Sentencing Act to promote “consistency, clarity and transparency”.

This is a message that must be heeded by all legislatures in Australia, especially state governments under whose laws most criminals are sentenced in Australia.

Following a string of high profile outrageously light sentences handed out to sex and violent offenders, community confidence in the sentencing across Australia has plummeted to an all time low. A community based petition proposing transparent and tougher sentences for serious offenders has already attracted more than 12,000 signatures in Victoria alone.

The community plea to finally fix the policy and rationality wasteland that is sentencing law can no longer be ignored.

The present system is an intellectual basket-case because it lacks an overarching rationale and is devoid of transparency. Sentencing outcomes in Australia are unpredictable and often flawed because there are about 300 different (mainly misguided) aggravating or mitigating variables that judges can pluck out at a whim to justify their intuitive predilections.

Common aggravating factors include breach of trust and the prevalence of an offence. Mitigating considerations include such things as the age of offender and remorse.

These should all be abolished. Empirical studies provide no evidence that giving weight to them will advance the goals of a properly structured sentencing system.

It is especially galling that remorse by offenders should serve to reduce the penalty. Remorse is usually just regret at being caught. Moreover, minimal decency commands that people should be sorry for harming others and people should not get a benefit for behaving in a manner that is expected of them.

The way to inject fairness and community confidence into sentencing is to adopt a clear rationale for the system and to develop it on the basis of research findings regarding what can actually be achieved through a state run system of punishment.

A principal objective must be to ensure that offenders get their “just deserts”. This can only be achieved by adopting the principle of proportionality, which prescribes that the pain inflicted by the punishment should equal the harm caused by the offence.

This formula should not be distorted by misguided considerations such as remorse or a desire to rehabilitate offenders. The empirical evidence shows that rehabilitation doesn’t work. Neither do other goals which currently serve to increase penalties, such as specific deterrence - offenders who commit the same offence recidivate at the same rate, irrespective of whether they are dealt with by way of a fine or imprisonment.

Just deserts is best secured by setting penalties for all offences by way of predetermined grid - with mandatory terms of imprisonment only for crimes that cause the most distress to victims.

Mandatory minimum penalties have received a lot of press over the past few years. None of the criticisms have even a veneer of plausibility, where the design of the grid is informed by a clear rationale and research data.

It is false that mandatory minimum penalties will result in an increase in the imprisonment rate. The guiding principle for fixing the penalties is proportionality. This will result in sentences which will have the net effect of making the system fairer and less punitive. Serious sex and violent crimes devastate the lives of victims. Perpetrators of these crimes must go to jail. Minor traffic offenders and welfare cheats don’t shatter the lives of others. They won’t go to jail.

The grids I propose will result in a reduction in prison numbers, but will guarantee that the people who deserve to be in jail will not avoid prison by milking a judicial sympathy gland. The costs saved by reducing prison numbers ($70,000 a year for each prisoner) will be used to put more police on the streets.

It is false that we should rely on judges to achieve proper sentencing outcomes. Judges are not trained in sentencing. They do not have some sort of mystical fairness antenna. Their hunches are not superior to those of other people in the community. Let’s take all hunches out of the system and ensure that all offenders get their just deserts.

It is false that offences vary too much to enable set penalties to be set. Crimes are differentiated with sufficient precision to enable experts to set penalties that match the seriousness of the offence. In the end, most offenders are not unique and neither are most crimes. This is supported by the outstanding success of the AFL and NRL grid sentencing models. In the end, all rapes and serious assaults devastate the lives of the victims. There are no exceptions.

It is false that minimum penalties are an extreme sentencing model. Most criminal offences in Australia are already dealt with by way of formal or de facto minimum penalties. We have mandatory penalties for offences such as drink driving, speeding and disqualified driving. In fact at the moment over 80 per cent of criminal matters are already dealt with by an on-the-spot fine (which serves as a de facto minimum penalty given that virtually no one challenges the fines at court). The perverse aspect of the current approach is that we have minimum penalties for relatively minor offences, but none for serious offences. Incredibly, people who commit rape can avoid a prison term, yet if you get pinged twice for disqualified driving in some Australian jurisdictions it’s mandatory that you serve at least one month in jail (although there is a discretion to suspend the sentence).

Here is an example of the way in which the grid would work. Obscene language would be met with a fine of $100; stealing a car would see criminals $200 worse off and doing 100 hours community work; thieves would receive a fine equivalent to ten times the value of the goods; whereas rapists and muggers who cause serious injury to their victims would serve at least 5 years in jail.

The system being proposed is not a revolution but rather an extension of the method by which most criminal offences in Australia are already dealt with. The proposed reform would make the system goal focused and transparent.

This would lead to a safer and fairer Australia.