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Denunciation as a Sentencing Purpose (Vic)

When a Victorian court decides on the appropriate sentence to impose for a criminal offence, it must consider the principles set out under Section 5 of the Sentencing Act 1991. These are known as sentencing purposes and one such purpose is denunciation. Denunciation means the condemnation of the type of conduct engaged in by the offender. This article discusses the sentencing purpose of denunciation in Victoria.

What is denunciation?

The sentencing purpose of denunciation is based on the idea that when imposing a sentence the court can communicate to the accused but also to the greater public that the type of offending behaviour they have committed is unacceptable and will not be tolerated by the courts. To that end, the courts through this sentencing purpose have the power to impose sentences which express public condemnation of the offender’s conduct.

In the1975 decision of Wilston & Ors, Judges Adam and Crockett stated:

“The aims of punishment are often classified as retributive, preventive, deterrent, and reformative, but this classification is plainly an oversimplification. It ignores or leaves inarticulate, for example, other purposes which the criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.”

Community attitudes and denunciation

The role of the court is to represent the community and through it the community’s attitudes towards and views of the criminal conduct alleged. Notably, the courts may not always know what the community’s view of an appropriate sentence is. However, similarly, the court often has access to details, which the public may not be aware of simply through media representations and also has a limited understanding of the law itself. Accordingly, ‘The courts are expected and obliged… to implement the criminal law in a way that ‘can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just’ (R v Williscroft & Ors).

Courts often impose sentences which the public considers too lenient (and sometimes too harsh, but less frequently so). Members of the community then sometimes argues that the courts are not imposing sentences which are reflective of the community’s expectations and standards. However, it is important to understand that the role of the court is not to reflect the community’s opinion with respect to sentencing, but rather, not to disregard the community’s views.

Ultimately it has been noted that the community’s outrage with respect to certain sentences cannot be a sentencing consideration, as the public is generally not informed of all the relevant facts. As was noted in Inkson (1996), in considering the public’s opinion this must be the “informed public opinion” which can be described as the “rational balanced opinion based upon all the material put to the court for the purpose of imposition of sentence and an awareness of the range of penalties imposed in the past in like cases”.

What factors will be taken into account?

Notably, in applying denunciation as a sentencing purpose, the courts must make sure that it is not the offender themself but the conduct that is being denounced. Section 5(2) of the Sentencing Act 1991 details the factors which must be taken into account when sentencing an adult in Victoria. These include, among others:

  • whether the crime was motivated by hatred or prejudice;
  • the impact of the offence on any victims;
  • the personal circumstances of any victims;
  • any injury, loss, or damage resulting directly from the offence;
  • the presence of any aggravating or mitigating factors.

The above factors are likely to determine how much weight a court gives to the sentencing purpose of denunciation.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Deike Kemper - Senior Associate - Melbourne

This article was written by Deike Kemper - Senior Associate - Melbourne

Deike Kemper holds a Juris Doctor (Master of Laws degree) from Monash University, a Graduate Diploma of Legal Practice from the College of Law and a Graduate Certificate of Forensic Psychology from Curtin University. She is admitted to practice in the Supreme Court of Victoria and the High Court of Australia. Deike’s main area of practice is criminal law. She...

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