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Just Punishment as a Sentencing Purpose (Vic)

When sentencing a person for criminal offending of any kind, courts must apply a number of principles. A sentence must be imposed for one or more sentencing purposes. These are the things the sentencing order is designed to achieve. Sentencing purposes include rehabilitation, community protection, deterrence and just punishment. This article deals with the sentencing purpose of just punishment.

The sentencing purpose of just punishment relates to the need to impose sentences that are appropriate and fair to punish the offender, taking into account the circumstances of the offence. The punishment imposed by a court should not be excessive or unfair. Rather, it should be proportionate to the offence. At its simplest, the principle underlying this purpose is that, if a person does something wrong, they ought to receive a degree of punishment for it.

As stated in Channon v The Queen (1978) 20 ALR 1, “Punishment is the means by which society marks its disapproval of criminal conduct.” Therefore, punishment is important to ensure that the accused, as well as other offenders in the community, are shown how the community views their conduct.

What does the court take into account?

Proportionality is the main principle taken into account by the court when considering what punishment is just. When determining a just sentence and considering proportionality, some factors that the court takes into account include:

  • The circumstances of the offence, which broadly includes the nature of the offending generally (i.e. family violence, sexual offending etc), but also the specific circumstances of the offending (i.e. what was the relationship between the offender and the victim or the amount of money or property involved in an offence relating to theft).
  • The reasons for the offence – i.e. was there a level of planning and premeditation or was it committed in the thralls of drug addiction for which the offender has since sought assistance?
  • The offender’s prior good character – i.e. has the offender come before the court before for other criminal offending?
  • Whether the offender can be rehabilitated – i.e. does the offender show remorse and understand the wrongfulness of their conduct and does the offender want to better themselves?

How much weight is given to just punishment?

When determining a sentence, just punishment is an essential purpose to consider. It is important as it provides a limitation to the judge’s power since the court is required to consider whether the sentence is fair and proportionate to the offence committed. In this regard, it is also guided by the maximum penalty that applies to each offence. Many sentences for high-profile cases may frequently be viewed as lenient by the community, which largely engages with the case only as it is reported in the media. In such circumstances, it is important to understand that what is reported in the media is highly unlikely to be a reflection of all the matters which were put before the court and thus ultimately considered as influencing the sentence ultimately imposed. Society, in general, tends to be focused on punishing offenders but fails to take into account the various other sentencing guidelines which are in place and ultimately need to be applied by the court, many of which are focused on things other than punishment, such as rehabilitation.

Just punishment is arguably the most basic and simple sentencing purpose; however, it is complicated by the need to be balanced against the individual circumstances of the offender and the offence, and all the other sentencing purposes.

Where does this leave us?

Ultimately the court must take into account a great variety of subjective and objective matters when considering what sentence is appropriate in a matter. As such it is generally important to obtain legal representation to ensure that the court is able to be directed towards the aspects of an individual’s case which are able to have the most mitigating (sentence reducing) impact.

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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