K Warner

Sentencing and public confidence: results from a national Australian survey on public opinions towards sentencing

This paper examines the critical issue of public confidence in sentencing, and presents findings from Phase I of an Australia-wide sentencing and public confidence project. Phase I comprised a nationally representative telephone survey of 6005 participants. The majority of respondents expressed high levels of punitiveness and were dissatisfied with sentences imposed by the courts. Despite this, many were strongly supportive of the use of alternatives to imprisonment for a range of offences. These nuanced views raise questions regarding the efficacy of gauging public opinion using opinion poll style questions; indeed the expected outcome from this first phase of the four phase sentencing and public confidence project. The following phases of this project, reported on elsewhere, examined the effects of various interventions on the robustness and nature of these views initially expressed in a standard ‘top of the head’ opinion poll.

Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing

Abstract In 2001 and 2002, print, radio and television gave extensive coverage to a series of gang rapes in Bankstown and other suburbs of south-west Sydney. The coverage attacked the laxity and inefficiency of the criminal justice system and immigration policy. It fuelled public fears about increases in crime in particular areas and fear of “ethnic gangs” and racially-motivated crime. The sentences imposed on three youths of Lebanese background in the first of these cases to be dealt with attracted widespread criticism from politicians, the media and the public because of their leniency. These events occurred at a time when issues of race were in the news as a result of the arrival of “boat people”, followed by a heightened fear of terrorism because of the events of September 11, 2001. The issue of gang rape by ethnic-minority youth resurfaced in August 2002 when a second group of offenders, again Lebanese-Australian youth, were sentenced, this time with gaol terms which for the most part were applauded for their severity. In parliament, legislation was introduced to increase penalties and political parties engaged in a pre-election law-and-order auction. These events are portrayed as an example of how a localised story about crime can become “racialised” and linked with debates about asylum-seekers and terrorism. This article attempts to draw out some of the criminal-justice issues from this story. In particular it explores some of the flaws in the sentencing process that assisted in inflaming the debate. A pedagogical role for judges is suggested in relation to the public understanding of crime and guideline judgements are recommended.

Public preferences for sentencing purposes: What difference does offender age, criminal history and offence type make?

Preferences of 800 randomly selected Australians for retributive and utilitarian sentencing purposes were examined in response to brief crime scenarios where offender age, offence type and offender history were systematically varied. Respondents selected rehabilitation as the most important purpose for first-time, young and burglary offenders. Punishment was endorsed as most important for repeat, adult and serious assault offenders. Multinomial logistic regression analysis revealed that offence history was a stronger predictor of public preferences than offender age or offence type; the odds of choosing rehabilitation compared with punishment were significantly increased by a factor of 6.1 for cases involving first-time offenders. It appears that when given specific cases to consider, the public takes an approach akin to that taken by the sentencing courts as they weigh up the importance of the various purposes for the case at hand. Public preferences are thus broadly consistent with current law and sentencing practice.

Measuring jurors views on sentencing: Results from the second Australian jury sentencing study

This paper presents the results of the Victorian Jury Sentencing Study which aimed to measure jurors’ views on sentencing. The study asked jurors who had returned a guilty verdict to propose a sentence for the offender, to comment on the sentence given by the judge in their case and to give their opinions on general sentencing levels for different offence types. A total of 987 jurors from 124 criminal trials in the County Court of Victoria participated in this mixed-method and multi-phased study in 2013–2015. The results are based on juror responses to the Stage One and Stage Two surveys and show that the views of judges and jurors are much more closely aligned than mass public opinion surveys would suggest.

Sentencing the violent spouse

This article seeks to examine sentencing principles applicable to cases of domestic violence in the light of the perception that such cases are dealt with more leniently than other cases. A recent trend for appellate courts to reject the proposition that the domestic nature of an assault makes it less culpable is noted. But closer analysis of a number of relevant sentencing considerations which are likely to arise commonly in domestic cases suggests that leniency can be explained by treating such factors as victims wishes, hardship to the family, provocation, emotional stress and intoxication as mitigating. Objections to allowing such factors to attract leniency are discussed. Undesirable consequences include pressure on the victim to forgive, inconsistent outcomes, prioritising the sanctity of the family over the safety of victims, reinforcing rather than denouncing violent behaviour and facilitating denial of responsibility by offenders. Courts are exhorted to clarify their sentencing principles to sen...

Jurors’ views of suspended sentences

This article examines jurors’ views on sentencing from trials returning guilty verdicts where the offender has been sentenced to a wholly suspended sentence or where jurors have suggested a wholly suspended sentence as the most appropriate sentencing outcome. It challenges the poor public image of suspended sentences and provides further evidence that informed judgement on sentencing issues reveals a public that is not as punitive as is commonly portrayed. However, rather than claiming that the findings support the intrinsic worth of wholly suspended sentences, it is suggested that they indicate a desire to avoid immediate prison sentences in many cases. In other words it shows there is considerable support for non-custodial options in the kinds of cases that attract wholly suspended sentences, even in the case of some crimes of violence.

Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative Justice

Abstract Increased recognition of the need for victims of crime to be integrated into the criminal justice system and to receive adequate reparation has led, in a number of jurisdictions, to legislative measures to encourage the greater use of compensation orders. The Sentencing Act 1997 (Tas) (which came into force on 1 August 1998) went further and made compensation orders compulsory for property damage or loss resulting from certain crimes. This article shows that this measure has failed victims and argues that they have been used in the service of other ends. Mandatory compensation orders are a token gesture repackaged as restorative justice to gain public support for the administration of the criminal justice system.Ways in which compensation orders could be made more effective and the possibilities of accommodating restorative compensation into a conventional criminal justice system are explored.

Why sentence? Comparing the views of jurors, judges and the legislature on the purposes of sentencing in Victoria, Australia:

In recent times, parliaments have introduced legislation directing judges to take defined purposes into account when sentencing. At the same time, judges and politicians also acknowledge that sentencing should vindicate the values of the community. This article compares the views on the purposes of sentencing of three major participants in the criminal justice system: legislators who pass sentencing statutes, judges who impose and justify sentences and jurors who represent the community. A total of 987 Australian jurors in the Victorian Jury Sentencing Study (2013–2015) were asked to sentence the offender in their trial and to choose the purpose that best justified the sentence. The judges’ sentencing remarks were coded and the results were compared with the jurors’ surveys. The research shows that, in this jurisdiction, the views of the judges, the jurors and the legislators are not always well aligned. Judges relied on general deterrence much more than jurors and jurors selected incapacitation as the primary purpose in only about a fifth of ‘serious offender’ cases where parliament has provided that community protection must be the principal purpose.