Purposes of Sentencing: An Eye for an Eye?

The biblical perspective of an eye for an eye which has its foundations within the notion of retribution implies that punishment should be served in proportion to the degree of the offence. Meaning, literally, whatever you do to your family or neighbour will be done onto you. If you kill a man, you will be killed. If you steal a man’s asset, your asset will be taken away too. In Gandhi's often quoted words ‘an eye for an eye ends up making the whole world blind’, may be true in more ways than he had in mind. He makes it evident that this type of thinking isn't productive at all for a peaceful global community or lifestyle. You cannot play the advocate for peace whilst simultaneously supporting the rule. The concept of punishment is a universal phenomenon. Any society who finds that their customs or laws have been impeded upon is swift to impose sanctions. Our legal system aims to deliver quick, cheap and just decisions however the core question stems from the long-held debate of whether the punishment always befits the crime?

What Does The Law Say?

The law states that there several purposes of criminal punishment: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. These purposes all interrelate with each other and cannot be viewed separately from the rest when judges attempt to decide the suitability of the sentence for each particular case. Attempting to determine what sentence is appropriate is not an easy feat which carries with itself the difficulty in giving due importance to each of the purposes of the punishment.

Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the various purposes “for which a court may impose a sentence on an offender”:

1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions
6. to denounce the conduct of the offender,
7. to recognise the harm done to the victim of the crime and to the community.

Punishment Objectives

The objectives or purpose of punishment in the criminal justice system can be categorised accordingly:

• Deterrence: The objective of deterrence is to discourage people from offending in the future. The notions aims to confront the problem of recidivism (repeat offenders). Deterrence may be applicable for minor offences such as fear arising from speeding however as the nature of the crime increases, consequently the punishment too, will have a minimal deterrence effect. However with high profile cases such as the recently highly publicised Bali 9 executions, this may now possibly act as a deterrent or possibly even a reason to stop and think for all those involved in drug trafficking.
• Retribution: The objective of retribution encompasses the notion that the punishment should fit the crime. The judge or magistrate will consider, as is always the case with respect to sentencing, the impact of the crime upon the victim, their family and the community. Lengthy custodial sentences are an example of a punishment aimed at retribution.
• Rehabilitation: The aim of rehabilitation is to change the behaviour of the offender so that they will not re-offend. Accordingly, rehabilitation is primarily aimed at tackling the problem of recidivism, i.e. repeat offenders especially amongst children and young offenders.
• Incapacitation: The concept of incapacitation aims to protect society by removing the offender from society which is usually opted for in cases where the crime is of a heinous nature and/or would pose a risk to society.

Looking Beyond Punishment

Often imposing lengthy sentences in an attempt to deter civilians from committing further crimes in many cases may not be sufficient. According to the Australian Bureau of Statistics, In Australia, high crime rates are often associated with poverty, unemployment, low levels of educational attainment, family relationship problems and high levels of drug use. As most offenders within incarceration will be illiterate, poor and often mentally unstable, it is essential that these aspects are addressed through education which in turn should lead to stopping recidivism. Not only do these opportunities offer advantages for the legal system, government and society, they also offer a new lease on life for these individuals once their punishment ceases. It is for this reason that punishment should focus on making reparations to victims and restoring offenders in a sound state of mind back within the community.

If you are concerned about your rights under Australian law then give us a call on 02 8917 8700 or alternatively fill out the inquiry box detailing your issue and we will ensure to get back to you as soon as possible.