Transcript: What is sentencing

Elena Marchetti, Deputy Chair Queensland Sentencing Advisory Council:

Hello and welcome to the first edition of Sentencing Matters, a podcast from the Queensland Sentencing Advisory Council.

Voiceover (music):

Sentencing matters: a podcast that informs, engages and advises on sentencing issues in Queensland.

Elena Marchetti:

In this edition, I'm talking to Rebecca Wallis from the Griffith Institute of Criminology at Griffith University, about punishment and sentencing in Queensland. So sit back and enjoy.

Hi Rebecca, thanks for joining us.

Rebecca Wallis, researcher, Griffith Institute of Criminology, Griffith University:

Thanks Elena, it's really great to be here.

Elena Marchetti:

So firstly, can you tell us what are the things we need to know about how sentencing works in Queensland?

Rebecca Wallis:

Right, so actually sentencing is a very complex thing. That's probably the first thing to know about sentencing in Queensland—is that it's actually quite difficult to understand everything you need to understand about the sentencing process.

So one of the first things really to understand is that sentencing encompasses a lot of different things. We're talking a little bit about the sentencing process, what actually happens in the courtroom, you know, who does what in a courtroom. We're also talking about the law and how the law is applied, what the law is and how that actually works in a courtroom setting. Then of course we're also talking sometimes, when we talk about sentencing, about the administration of sentences. So the actual penalty is the punishment that flows from that. So you can imagine actually a lot of the time people are talking about slightly different things when they talk about sentencing. What I'm going to try and do today is give you just a bit of the basics of a little bit about all those things.

One of the things you really need to start with to understand sentencing in Queensland is actually a little bit of the political system and the way that power is shared across different kinds of government, arms of government, so forgive me for a minute while be a little bit boring.

In our system of government we have this thing called separation of powers, so your political system, your legislature, your government is really responsible for creating law in Parliament and that's a very important thing to realise when you talk about sentencing.

People often think that it is judges making all of this stuff up. But actually judges are applying law, and in Queensland for sentencing law it's the Penalties and Sentences Act. That act has been written or created by the decisions of your local representatives in Parliament coming up with this piece of legislation. Then we obviously have another arm of government which we call the executive government and those guys are obviously the party that's in power. The ministers, the various government departments and they're very responsible for the administration of that sentence.

So once a judge applies the law, decides the penalty, it goes to, for example the department of the Queensland Corrective Services to actually administer that sentence, to run the prison systems that kind of thing.

And then importantly of course we've got the judiciary. So these are all part of the government system broadly speaking, but they all connect with each other.

And importantly the other fundamental kind to talk about, and really important, is the idea of the rule of law. So in our system we try very hard to not give power to an individual or to a government per se but really to—we really use the law as the most powerful thing. Binding and governing and constraining the actions of all of those people.

The judges have to act according to law, the executive government we hope acts according to law, the legislature is bound by legal rules. So the rule of law is really important in all of this.

How is this all relevant to sentencing right? This is very high-level stuff. That's a very important thing first to understand that sentencing really is something that isn't just judges making up their minds about things arbitrarily. What they do is very bound by the decisions that the legislature have made about sentence and hopefully, those decisions are things that reflect democratic interests—so the people's interests.

But as we go through this you'll see it's actually very complex because we all have different opinions, different things that we think need to be achieved when we sentence somebody. So let's get down a little bit to more practical aspects of that.

What it means in Queensland is that we have this piece of legislation called the Penalties and Sentences Act .This piece of legislation is really, really important. I would really encourage people to go and have a look at that piece of legislation. It's easily available online and it's quite useful to look sometimes at the law. In that piece of legislation we have a lot of things set out. So we have: what are the purposes of punishment? What is it that we're actually trying to achieve or what are we allowed to try to achieve in Queensland when we punish somebody or when we sentence somebody? And then we also have a whole thing, series of things set out about what a judge can actually take into consideration when deciding a sentence. If you look at the Act, this is kind of a shopping list of things that they can all that they are required to take into consideration.

The Act also then sets out what the penalty options are and a lot of administrative detail about which bit can… you know, what kinds of penalties can be imposed with or without others, what happens if somebody pleads guilty early, how does that get taken into account. How do you take into account things like time served—so if somebody's already spent some time in prison. All of these things actually require the law to create, I guess, the mechanisms to ensure that what you do with somebody during sentencing process and post sentencing is lawful. So this piece of legislation is really important and we hope that it reflects the needs and the desires of the people generally.

Elena Marchetti:

So that's interesting Rebecca isn't it? Because the public seems to sometimes have a perception that judges can do whatever they like. But they are constrained to a certain extent, they’re limited. But they have discretion, but they're also limited in their discretion.

Rebecca Wallis:

That's absolutely right and I think that that's a fundamental thing to understand. That discretion is bounded, you know, quite considerably by law. And in fact it's probably best to think of it almost the other way, you only have discretion within the limits of the law. And so, the way that that discretion plays out is quite an interesting thing to look at.

What we have in that area that's very important on top of legislation is case law. This is the kinds of decisions that judges in the past have made that help them or help to guide how they exercise decisions in this context. This is really because we have a real desire in our system to ensure that there's consistency, that you know you'll be punished in the same way, or you'll have the same sort of sentence as somebody who's committed a similar offence in the past. Also a really significant balancing act that has to take place, between the needs and the perspectives of the person who's offended, so the offending person, as well as the needs and perspectives of the community. And if you work too much towards certainty, if you say well you can only impose this sentence in this circumstance sometimes that can lead to significant individual injustice both for, say victims of the crime, as well as for offenders.

If you allow too much discretion, well you can make up, and if you don't have a whole heap of certainty then that can actually create unfairness as well. So this idea of individualised justice is really a balancing act and we know that that can lead to quite a bit of debate, ongoing debate, about what justice really looks like in this area. And that's a good thing I think, for a healthy democratic system.

Elena Marchetti:

Right so, Rebecca now that you've given us the context of sentencing and you briefly highlighted the issue that, sentencing has a purpose could you please explain like what the purposes of punishment are?

Rebecca Wallis:

This is actually very interesting because, really sentencing has a number of different purposes. One of the things that decision makers, so judges or magistrates, need to decide is what purpose is going to apply in any particular case. They have the option of course to try and achieve a number of different purposes with the sentence that they come up with. And these things are set out in the Act, if you go to Section 9 of the Penalties and Sentences Act, you’ll a nice little list and it says something like ‘the only purposes for which a judge can impose sentence are the following’. But then it includes a number of things that you know potentially are actually relatively conflicting, a little bit inconsistent so it's an interesting mishmash of different types of purposes.

But what you see set out there is first what we call ‘just deserts’. Right? And the best way to understand a ‘just deserts’ model of punishment is really to think a person is punished in the way that they justly deserve. So it's not ‘just deserts’ like I'm going to get cheesecake or something, it’s ‘justly deserve’ this punishment. That of course is a completely retrospectively focused thing. You're looking at what it is that the person did and you're punishing them for that offence, in a way that's just. So in that context we're thinking about justice in terms of proportionality, so we're thinking, this was a serious offence, it caused a lot of harm. It was a very bad thing to do, therefore the punishment, the just punishment, is more severe than perhaps if it was less serious, it caused less harm, and whatever it might be. So that question of justice in that context is a very retrospective thing, you're thinking about what's already occurred. And that's a significant purpose of punishment to actually punish people for what it is that they've already done.

A lot of the other purposes of punishment, so the next one for example in the list is rehabilitation. So let's rehabilitate this person so that they don't do this kind of thing again. So you immediately see there's a different focus there. That focus is very forward-looking, let's make sure that they don't do it again in the future. And to do that we've assumed that that bad thing, to some extent is, the product of an individual problem or an individual deficit within that person that needs to be rehabilitated. And if we did that, if we solved that problem, they wouldn't offend in the future. And so it's a very forward-looking kind of purpose of punishment.

Then we have a whole mixture of other things we also say in the Act. We would like a person to be punished in order to deter them from committing that acting again in the future. So this idea of specific deterrence. That I'm going to tell you, I'm going to punish you so that you're warned. Or that you've learnt your lesson and you don't do it again in the future. And that's very specific to the offender so what punishment can I come up with that would stop you, Elena from committing this offence again in the future.

And then we have a more complicating aspect of deterrence which is this idea of general deterrence and this becomes almost symbolic— what can we do to you that would send a message to everybody else in the community. Particularly to people like you perhaps, not to engage in this behaviour again. And general deterrence of course is quite different in its scope to specific deterrence. All of these things have got merit, all of these ways of thinking about punishment in the purposes of punishment have got merit, but they result in slightly different kinds of punishments. If you think about it and different arguments about what is effective and what isn't effective. Is it effective for rehabilitation, is it effective for deterrence? there are actually different arguments.

Then we have really an expressive component of punishment which is community denunciation. So our Act also says that this, that the community denounces this kind of behaviour. And this is really a very symbolic expression, this says we don't accept as a community that this behaviour is tolerated and we're sending a very strong symbolic message that that this is denounced. Again, difficult to understand on or to see sometimes how that works as of how you actually make that into some sort of a penalty.

Then we have community protection. Community protection is a very significant component, increasingly and something that people are interested in when we talk about sentencing. How do we sentence someone in a way that then protects the community? That's of course very important but it requires some very interesting things. For example, risk assessment, how do you actually know what risk this person poses to the community in the future? And not just now on the basis of their behaviour, but in the future and what their future to how you might be.

There's also then questions about what's the best way of protecting a community. Is it best to lock somebody up for a very, very long period of time, and therefore remove them from a community although they still exist within a community in fact, in a prison context? Or is it best to try and put in place programs that support or that change that person's behaviour? For example, so that they no longer pose a risk to the community. And there's quite a lot of debate about that.

Of course some of the interesting things are that you know the fact that you might remove somebody from the community for a period of time by sending them to prison, but in fact this may actually make them worse when they're released because of that prison experience. So that brings into focus a lot of questions about the effectiveness of the penalties that we're putting in place. And that effectiveness is difficult to assess without knowing what the purpose of the penalty was.

And so we have this list, we have this, you know, ‘just deserts’ idea. This rehabilitation, specific and general deterrence, community denunciation, community protection, and/or a combination of those things. And these are the things that judges have to decide when they sentence a person. ‘What is it that I'm trying to achieve’, what is the purpose of this sentence?

Elena Marchetti:

And do judges usually make it clear, what purpose they are focusing on in the in their sentencing decision?

Rebecca Wallis:

Very often when you look at the sentencing comments of a judge, yes. They will demonstrate a weight that's been placed on one or the other, or a combination of these factors. In some circumstances, the legislation itself will say you need to place more weight on one of these purposes over and another.

So we see that, for example around violent offences or sexual offences, particularly against children, that they place a greater weight on community protection. It places a greater weight on those kinds of ‘just deserts models and is less concerned with the other components. It doesn't completely allow, doesn't completely say a judge can't take those other things into account. But it's about where you place your weight in sentencing. So you can see immediately this becomes very complex.

Elena Marchetti:

Now that we know the purposes of sentencing, how do judges or magistrates actually decide a sentence?

Rebecca Wallis:

Right, so you can see really what I'm painting for you is an increasingly complicated picture isn't it? We have a variety of different purposes and then we have a number of different things that you can take into account when you're trying to consider what sentence you should come up with.

And if again you go to the Act, and I really do encourage people to look at the legislation itself. It is fairly straightforward, it is really good for people, ordinary people, to actually start to engage with the law. I think that is a really important thing actually—that we feel like we're able to look at these pieces of legislation and understand them. But within Section 9 (of the Act), so the rest of section 9, essentially in the Penalties and Sentences Act sets out various different sentencing considerations. These are things that a judge must consider when they're trying to create the right sentence or decide on the purpose of punishment. And there's a shopping list of things there, and there's a little bit of different ordering in that.

There are general principles in the first part of that section and then there are some specific things for specific offences that kind of reorder what it is that you take into account. But broadly speaking these fall into issues that are to do with the offence. These are often things that the prosecutor will talk about in a sentencing hearing and they're usually things like how serious was it, how prevalent was is the offence—is it an issue of that the community is particularly concerned about, or that's a big problem for the community at the moment. It will take into account things like aggravating features of the offence.

One of the things that people often forget is that you might be charged, say, with armed robbery. But there are a whole heap of different examples of armed robberies. So people often think of, you know, the gun-wielding balaclava, clad-armed robber who creates a very serious, very significant, very violent, you know smash-and-grab robbery. But armed robbery is really, it can also include an offender who's perhaps drug affected, who runs into a service station with the syringe for example. They're quite different sorts of pictures of the same offence. They can cause significant harm to their victims regardless of which version you're looking at, but there's a lot of difference in the way that these offences might play out or what they look like. Looking at those aggravating features helps you to see, is there some more or less serious version of what is still a serious offence.

We’ve got those kinds of, I guess objective features that people look at, those issues to do with the offence. Then there's a whole set of considerations you need to think about which are around the issues to do with the offender. And these of course might be relevant to questions of, well can they be rehabilitated? Is a worth prioritising rehabilitation?  Is the offending caused by something that we could do something about? Taking into account their level of responsibility that they have for that offence. Are they you know cold-blooded in what they did or is there some other kind of level of criminal responsibility there?

Elena Marchetti:

Does that also include whether they plead guilty early or not?

Rebecca Wallis:

Pleas of guilty are allowed to be taken into account, or in fact, must be taken into account at sentence. Mostly because of the way that they express remorse, right. So they’re understood as an expression of remorse that, you know, if you've decided to plead guilty and fess up to the issue early. Not only is that practically good for the system because it saved money in time and hopefully it saved the victim having to re-live that experience in a trial and all of that kind of thing. But it's also understood to be an expression of remorse and that's something that often, not always, but often will go I guess in your favour as a as an offender.

So all of those issues you know, so for example if you look at age, you can take the person's age into account, and there's a whole heap of assumptions that we're making about paying we're thinking about younger people. Perhaps they're better able to be rehabilitated. Perhaps they didn't quite understand fully the consequences of their actions. Perhaps, you know, whatever it might be, on the other hand, an older person ought to have known better. And you can see these things, they get taken into account, they should be considered. But how they actually are going to operate in that sentencing recipe, you know he's going to be very case-by-case. It's going to depend on lots of other factors within that case as well.

Elena Marchetti:

Is there any consideration given to the victim and also their family? Or the impact on other members, you know, that might be directly affected by the offence?

Rebecca Wallis:

Right, so this is one of the things within the Act often, which a prosecutor particularly will focus on— the impact of that offence or that crime on the victim certainly, and then on the community. This is an area that we've, I think, made some strides over the last maybe 20 years, but still probably could think about, or continue to think about. Because our sentencing processes really represent the state and not the victim.

When you're taking an action against an offender it's the state, I mean it's really the Queen, it's in the Queen's name, and it’s not that individual person. But we do see the inclusion now of things like victim impact statements and that being able to be looked at to see well what kind of consequences is this crime had on the victims of the crime. One of the things that's harder to look at is the kind of secondary, I guess, band of people. You know, so families and not just families of the victims, but also families of the offenders and, the kinds of positions that their dependents might be left in. And the kinds of ripple-on effect of the penalty that you're looking at. And so you can see it's quite a complex framework that we're talking about.

Elena Marchetti:

It certainly is it, and there's so many things that you've covered Rebecca. What do you think are the most common issues that you know arise when a when a judge sentences, or even, that arise for a government in making rules about sentencing?

Rebecca Wallis:

I think one of the one of the things that you often see is a lot of community interest in sentencing, particularly when there's been a really terrible crime that's caused a lot of damage and it attracts a lot of attention. And there's a perception that a judge has made a mistake in the way that sentence has played out. There's a lot of things that come to the fore when those sorts of things happen and part of that is sometimes a lack of very good understanding about how sentencing really operates. So I think particularly that idea that judges can just make this stuff up.

One of the things that I should have mentioned probably in the sentencing consideration, one of the fundamental things is actually the maximum penalties that are set out in the Act. In any case so, you know, what is—we don't usually sit in penalties, sometimes we do, but we don't usually in our system but certainly most offences have a maximum penalty prescribed. And often when you look at a section that says, the maximum penalty that you can apply and for this crime is say seven years, people will then automatically say ‘well how come this guy didn't get seven years?’. And then starting to look out what the law says about the use of those maximum penalties. So often in fact maximum is really, really left for the very worst case that you can imagine for kind of offence. And most of the time it's sits somewhere lower of that. And that consistency, that maximum penalty is set in legislation.

But the decisions about where your case fits within that kind of framework is going to be dependent on what other cases have decided, other similar cases, and the penalties that have been put in place there, then this one should fit somewhere in that same area. That is about fairness. In fact making sure you've got consistency, that a lawyer can advise their client ‘look you're looking at five years’ or ‘you're looking at probably somewhere in the range of this kind of penalty’. So it's an attempt to try and keep things fair and consistent, but sometimes that can be misunderstood, I think, in the public eye.

The other thing that public attention or the public outcries around sentencing highlight is a question really about the purposes of punishment. Which ones are the most important, but in terms of community perceptions and in terms really of what is best for a community and an individual and the victims of crime individually. And it's very, very difficult to come to consensus on that. It would be very easy for us to say, well let's throw everything else out, let's just do say, rehabilitation. Or lets throw everything else that let's just do ‘just deserts’ and you probably get a simpler system. But it might not actually be in the end, a very fair system. So it is this—we have this complexity because our system has arisen over time with a whole heap of history behind it, that's attempted to end up with a fair process and a fair system of sentencing. But of course it's kind of like a pendulum swinging you're constantlytrying to find that balance point.

Elena Marchetti:

And I guess it also, you know, it's not only about fairness, but effectiveness. And locking everyone up costs a lot of money to—so it takes away the opportunity to rehabilitate people and have them re-enter the community as a valuable member of society.

Rebecca Wallis:

I think that's another good point, thinking about the range of penalty options that we have. That's another thing that is a significant issue around sentencing, what kind of penalty options do we have and how effective are they? And we have a system that no longer uses corporal or capital punishment, so we don't impose a death penalty, we don't impose floggings and things like that anymore.

So really the hardest bluntest tool in our in our toolbox is imprisonment. And so imprisonment takes on this very symbolic kind of thing, you know. ‘They should be locked up because that's the worst kind of punishment that we have’ and that's where that's what we want to see happen in this particular instance.

But of course, in fact the imprisonment costs a lot of money it doesn't always achieve the purposes that you think it's going to achieve, and sometimes in fact it actually make people worse or more dangerous. There's also a perception that people go to prison for punishment or they go to prison for rehabilitation and to some extent we have, you know, some of those things operating in our prison system so we do have some services some rehabilitation programs things like that. But that's not what prisons really are about, prison in itself is the punishment, that your actual loss of liberty is the punishment and that anything else that happens within that prison context is sort of tacked on.

Then aside from that, we have community-based orders, we have fines, we have probation, we have essentially good behaviour bonds and structures that try and keep people under a threat of punishment that might be enough to keep them toeing the line for a period of time.

One of the things that often comes up is well maybe we need more tools in our toolbox. We need to think a little bit more about what options we do have, and what options we should have.

And then the last thing I think that comes up in that context is the sentencing hearing itself. So we've got some arguments about the law and how the law operates, and should we improve that? We have some arguments about penalty options what do we have, how effective are they? Do we need more do we need less? When should we use them? And the third thing is, do we have different ways of actually sentencing a person, of running that process to get different voices into that courtroom to allow people to have more input into that process. And in this context you see, for example the rise of the specialty court, so court processes that are specialised towards certain kinds of offences or specialised towards some sort of different kind of penalty use or different kind of cause of crime. So a drug court for example—which is really about how do we punish somebody, but at the same time try to stop them from using drugs—which is potentially the cause of their offending. So those kinds of things that obviously, that kind of court is very, very clearly aimed towards rehabilitation as opposed to those other purposes of punishment. And so that sentencing process is another area where you see a lot of interesting things come up, innovation come up.

Elena Marchetti:

But they still place the onus of the actual decision of the sentence on the judicial officer?

Rebecca Wallis:

That's right, and it's again still bound or constrained by the law that's put into place. So if you look for example at a court like the Murri Court which is a sentencing court in Queensland—that attempts, I suppose, to try and make the sentencing process more meaningful, more relevant and therefore more effective for Aboriginal and Torres Strait Islander peoples caught up in the criminal justice system. That court actually applies and uses the same legislation as any standard Magistrates Court. So it's not actually a different sentencing process at all, sentencing legislation, sentencing framework at all. It's just a different courtroom process. And that can make some big differences.

But that's quite different to say a drug court where you often have a different piece of legislation that sets out different considerations for a judge and different weight to be placed on those considerations by a judge.

So understanding this complexity is hard, there's a lot in that, and every one of these things that I’ve talked about can really be a podcast in itself to explore.

If there's a takeaway message from anything that I've said it's that sentencing is a complex process. There is a lot of room for innovation for experimentation and a lot of ways in which this can go wrong. But because of our system that's not necessarily a bad thing to have that complexity, to be able to try and continue to improve, to continue to tinker with this system is a good way of trying to reflect community values. And also of trying to deal with the needs of all of the individuals that are caught up in this system. But we should always be paying attention to how this is actually working on the ground for all of those different stakeholders.

Elena Marchetti:

Well, I guess at the end of the day life is complex isn’t it, and it's reflecting that in itself.

Thank you so much Rebecca we could spend hours on this, but I'm sure our listeners have learnt a lot from the very useful information that you've provided.

To the listeners, I hope you've enjoyed our first edition of Sentencing Manners.

For more information on sentencing issues in Queensland head to our website:

www.sentencingcouncil.qld.gov.au