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Principles of sentencing - the aims of sentencing
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The aims of sentencing

 

The purposes of sentencing are defined by section 142 Criminal Justice Act 2003 which says that

"Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing"

(these purposes do not apply to persons under 18 or where the sentence is fixed by law minimum sentences and mental health orders)

  1. the punishment of offenders

  2. the reduction of crime (including its reduction by deterrence)

  3. reformation and rehabilitation of offenders

  4. protection

  5. the making of reparation by offenders to persons affected by their offences

Modern sentencing policy reflects a combination of several or all of these elements.

 

Judicial aims; retribution -v- utilitarian

Sentencers can look back at the offence and apply punishment - a retribution approach - and/or look forward and aim to impose a sentence that has a useful purpose, the utilitarian approach.

 

Punishment

 

sometimes referred to as Retribution.

This element is intended to show public revulsion from the offence (this has been a constant theme since the Report of the Royal Commission on Capital Punishment 1953) spelt out to punish the offender for his wrong conduct R v Blake [1962] QBD George Blake an infamous spy was given 42 year prison sentence

Lord Hilbery:

"This sentence had a threefold purpose. It was intended to be punitive, it was deigned and calculated to deter others, and it was meant to be a safeguard to this country."

Exam focus:

Punishment - retribution for wrongdoing, society’s revenge for the offence. "Let the punishment fit the crime".

Based on proportionality or ‘just desserts’ it contains an element of denunciation - society’s outrage at the offence committed

 

Deterrence

Deterrent sentences (or rather a sentence with a deterrent element) are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law.

 

So, in R v Hussain (Mohammed) [2005] CA a deterrent sentence was imposed in relation to electoral fraud but in R v Oosthuizen [2005] CA the Court of Appeal ruled that to impose a sentence with a deterrent element on the grounds of prevalence of the offence there must be statistics that support the about prevalence:

"even a judge with experience of that area should not assume that prevalence was more marked in that area than nationally" 

This particular case concerned robbery of handbags from women on the streets of Guildford.

Reformation

 

sometimes referred to as "Rehabilitation"

The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation.

 

Community punishment/rehabilitation orders are good examples of sentences designed to reform the offender. 

 

The general restrictions on imposing custodial sentences on young offenders are designed to keep young offenders out of the criminal justice system until maturity.

 

Drug treatment orders

In the case of an offender aged 16 or over who has a drug problem which might respond to treatment, a court may have power to make a drug treatment and testing order: see the Crime and Disorder Act 1998 s 61

 

Protection

The protection of society is often the overriding consideration, so in R v Brewster (1980) CA  a professional criminal had to be locked up for a substantial period.

 

Exam focus:
Protection of the public by preventing the offender from re-offending.

 

Reparation

Reparation is becoming an important objective in sentencing which can be seen by such sentencing options as community orders.

 

Exam focus:

Reparation - considers the victim when sentencing the offender. Compensation orders used to make offender make amends to the victim

 

Courts are required to state which element is being used.

In relation to custodial sentences in particular, the court ought to explain the practical effect of any sentence it passes, in terms which assists the understanding of the offender, any victim and the general public: Practice Direction (Custodial Sentences: Explanations) [1998] (and here)

 

The essence of restorative justice was caught by Archbishop Desmond Tutu in a recent lecture

“A criminal offence has caused a breach in relationship and the purpose of the penal process is to heal the breach, to restore good relationships and to redress the balance . . . the fundamental purpose of the entire exercise is to heal”...

 

Exam focus:

Reduction of crime - this includes both deterrence and rehabilitation
Deterrence has two types - individual and general:

  • Individual - aimed at particular offender to put him off re-offending by either a very severe sentence eg custodial sentences or a fine, or by the threat of imprisonment eg a suspended sentence or conditional discharge

  • General - put society off committing crimes by exemplary sentences or minimum sentences not concerned with fairness and may be harsher than the usual tariff for the offence so can lead to injustice in particular case eg very severe sentences for the theft of mobile phones on the street

Rehabilitation - aims to reform the offender to stop them re-offending. It is focused on the longer term looking at the potential of the offender to reform. It is now accepted that custodial sentences only have very limited rehabilitative effect

Sociology and psychology - perspectives on sentencing

Symbolic or expressive function.

All laws have a symbolic or expressive function.

 

We have laws against race and sex discrimination - not purely to provide a remedy for the victims of such discrimination, but also to convey and underline the important message that such discrimination is wrong.

 

Expressing this message through the criminal law, with its potential stigmatic consequences, emphasises the total rejection of the activity in question. (For this reason it can be argued that certain instances of direct discrimination should have been criminalised to make the message 'stronger'.)

 

Kaufmann

 

Walker and Marsh

Simply declaring an activity to be criminal can, in itself, have a symbolic effect in influencing attitudes and moral beliefs.

 

This point is illustrated by the research of Kaufmann (1970) who asked a group of subjects to evaluate the morality of certain behaviour (failing to rescue a drowning man). Some subjects were told that this behaviour was criminal; others were told that there was no legal duty to rescue.

 

The former group judged the inaction more harshly than the latter group. Breaking the law was in itself viewed as immoral. Similarly, Walker and Marsh (1984) discovered that subjects stated that their disapproval of not wearing a seat belt would increase when this became an offence.

 

Feinberg, disavowing behaviour

While the mere existence of criminal laws has important expressive consequences, it is enforcement of that law and the punishment of offenders that gives the criminal law its real 'sting'.

 

Through punishment society is emphatically condemning and thereby disavowing the offender's acts.

 

Failure to punish, on the other hand, amounts to an endorsement or approval of such actions. Feinberg (1965) uses a telling example: suppose an aeroplane from nation A shoots down an aeroplane from nation B over international waters. If nation A were to punish its pilot this would amount to a disavowal of the pilot's action: the actions would simply be those of a deranged pilot. But a failure to punish the pilot would amount to an endorsement of his actions. Nation A would effectively be admitting that it was responsible for the act and approved of it.

 

Socialising effect of disavowing behaviour

Such disavowals of criminal acts have an important socialising effect in reinforcing attitudes and social values.

 

They are part of the conditioning process that creates conscious and unconscious inhibitions against committing crime. In this way the criminal law can have the effect of strengthening the public's moral code. Every time a person is punished for, say, theft, our underlying conviction that theft is wrong is reinforced. The aim of punishing drunken drivers is not simply to deter other would-be drunken drivers but to try to induce a social climate in which it is regarded as morally unacceptable to drive after drinking too much alcohol.

 

Substantive offences follow, communication of the disawols.

Acceptance of these views has important implications for the structuring of substantive criminal offences.

 

If the function of the criminal law and punishment is largely an expressive, symbolic one, it is important that the messages to be communicated be informative.

 

For instance, single broad offences would be morally confusing. The law must state clearly, for example, that both murder and manslaughter are unacceptable wrongs, but it must point out the level of rejection of each activity by different labels and punishment levels.

 

Bearing this expressive function more clearly in mind would also lead to a clearer relationship between different offences, for example, they, handling stolen goods and fraud. The enquiry would simply be: how crucial are the values embodied in each of these offences, relative to each other? The answer to this question would reveal how necessary it was to disavow deviation from those values; appropriate levels of punishment would emerge.

 

Punishment and morality.

A lesser, but related, claim is that even if criminal law and punishment does not actually mould morality, it nevertheless induces an automatic, habitual response of obeying the law.

 

A soldier in the army might not believe in the justice or morality of every order he receives, but he has been indoctrinated into a knee-jerk habit of obeying all orders.

 

The criminal law and punishment can induce such law-abiding conduct 'purely as a matter of habit, with fear, respect for authority or social imitation as connecting links' (Andenaes, 1952).

 

Durkheim and "Conformist Theory"

Punishment for the purpose of inducing the habit of conformity to the law might be necessary for other psychological reasons.

 

Durkheim (1964) has argued that those who obey the law need support. At a subconscious level there might be a temptation to commit crime. By abstaining therefrom, the conformist has been able to maintain internal control.

 

To sustain this balance within the personality and ensure the dominance of internal control, the conformist needs to be able to identify with the police and the courts; the offender must be made unattractive as a role model.

 

The inhibition of deviant impulses must be made to seem worthwhile. The punishment of offenders reassures the conformist that it was worth obeying the law. His morale and habit of not breaking the law are maintained.

 

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