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Deterrence as a Sentencing Purpose (Vic)

When deciding on the appropriate sentencing orders to make in respect of a criminal offence, courts must consider the five sentencing purposes set out in the Sentencing Act 1991. These are rehabilitation, denunciation, community protection, punishment and deterrence. Courts must impose sentences for one or more of these purposes. This article discusses the sentencing purpose of deterrence.

What is deterrence?

This sentencing purpose aims to discourage the individual offender as well as the general community from committing the same or similar offences in the future.

Whether general or specific deterrence is given greater weight in a given matter depends on the specific circumstances of the accused as well as of the offending. The question the court must ask itself is whether or not the person being sentenced is a good vehicle for general deterrence.

Specific deterrence

Specific deterrence overlaps to a degree with the sentencing purposes of punishment and rehabilitation. Its focus is ultimately to try and ensure the same offender does not return before the court.

Where a person has taken steps to rehabilitate themselves prior to coming before the court, the court will often give less importance to specific deterrence as a sentencing consideration.

General deterrence

General deterrence, on the other hand, aims to act as a warning to the general public that if a person commits this offence, this is the penalty they will incur.

Notably, whilst the courts are open for anyone to attend and hear a sentence, general deterrence becomes of significant weight generally only in highly publicised matters. However, in lower range offending, courts will still try to ensure that a message of deterrence is sent to the people who are sitting in court on the day of sentencing.

The weight give to this sentencing principle is dependent primarily on:

  • the punitive nature and perception of a sentence; and
  • the extent to which the sentence can be communicated to the ‘target audience’.

General deterrence endeavours to address and subside the criminal intentions of the greater public community. However, as this can at times lead to significantly harsher penalties than may be appropriate on the specific circumstances of an accused, it is important that the court is made aware of reasons why general deterrence shouldn’t be a primary consideration in a given matter and even in some situations should be given little or no weight.

However, as it was noted in Raptis & Ors (1988) “good character cannot protect from a custodial sentence those who embark upon crimes of such potential damage to the community. Society has little alternative but to impose upon such people a custodial sentence for the deterrence which it may have upon others.” It is therefore important to understand that general deterrence is always going to be considered.

Mentally impaired offenders

One exception to the application of specific as well as general deterrence is where an offender is mentally impaired (Verdins principles). It is important to understand that a mental impairment is distinguishable from a mental illness, as such matters as addiction and mental illnesses alike may not be sufficient to alleviate the weight given to deterrence as a sentencing purpose.

Young offenders

When sentencing young offenders, rehabilitation ought to be the primary sentencing purpose. Deterrence is, therefore, less of a consideration in matters involving young offenders.

As can be seen, there are many considerations a court must take into account when sentencing a person for criminal offences. As such it is always advisable to have a lawyer assist in the preparation of a plea, to ensure that the court is given all the right information to be led to the fairest sentence.

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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