Criminal Law
31.03.17
Sentencing: Is the length of a sentence the measure of justice?
Courts around the country are filled with horrendous crimes, stories of tragedy, broken lives, and disadvantaged people.
The role of Courts in sentencing offenders is often misplaced. Courts do not administer justice they administer the law.
Those who say they want justice, in fact, often want retribution. Those wanting retribution may feel aggrieved that some offenders escape what they think is a punishment that fits the crime.
The truth is sentencing offenders is a complicated exercise. It requires balancing the objective seriousness of the offence with any aggravating and mitigating circumstances. It requires sending a message of general deterrence to the community whilst sending a direct message of specific deterrence to the offender. It requires protection of the community whilst rehabilitating the offender.
The length of a sentence, or type of sentence, should not be the only measure of justice. It should reflect a proper application of the legal principles relating to sentencing an offender to the facts of the offence.
Every sentence has to be approached on a case by case basis. An offender may have a mental illness or come from a disadvantaged background. Another is the offender may be a child where “The public have no greater interest than that he should become a good citizen”.[1]
Some sentences may be obviously too lenient or manifestly harsh. Rights of appeal to the prosecution and offenders exists for good reason.
Everyone is entitled to their views on how an offender is sentenced. Just remember, sentencing is an incredibly difficult job. Don’t be too quick to claim what the punishment should have been.
[1] R v Smith (1964) Crim LR 70, quoted in R v Alan James Lindsay (1995) FCA 1519 at 20.