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The Complexities of Sentencing as a Key Aspect of Criminal Law

Discuss about the Different Aims of Sentencing Essay.

The most politically sensitive and controversial aspect of criminal law is possibly the sentencing. It has also been noted as being difficult to overstate the significance of it in administrating a criminal justice system. Sentencing is also deemed as the lease predictable areas under the law. Then there is the case of no single sentencing being right in a specific situation. Owing to a number of reasons, sentencing is innately complex. Included in the complexity of sentencing are the key objectives of it, which include general deterrence, denunciation, retribution, community protection and specific deterrence as these are not prioritized and at times are conflicting with each other[1]. It is often stated that denunciation is a valid objective of sentencing and that there is a need for the community to be able to express their disapproval by means of condign punishment. This is so even with the lack of other sentencing objectives being fulfilled. At times, denunciation is unfortunate, but it does form an important part of society’s fabric. This discussion is focused on highlighted the manner in which denunciation proves to be unfortunate, and yet is required to be present.

The sentencing which is given to the miscreants under the criminal law is given with a proper purpose. The purpose of sentencing has been given under Crimes (Sentencing Procedure) Act, 1999[2], particularly under section 3A[3]. This section provides that there are different purposes for which a sentence can be imposed by the court. There are a number of reasons why the offenders are punished in the society. Individual deterrence is meant to discourage the offender from indulging in further crimes; rehabilitation is meant to help the offenders so that they would not indulge in offending again; incapacitation is meant to restrict the offender from being involved in crimes through imprisonment; and denunciation shows the disproval of the society to a particular crime[4].

With the objective of denunciation, in the sentencing law, the basic purpose of protecting the community from offender, covered under section 3A(c) of Crimes (Sentencing Procedure) Act[5], is met. Often denunciation is clubbed with objectives like retribution or deterrence in order to give justice to the sentencing. Howie J in R v Zamagias[6] provided that it was a common thing to observe that even though the punishment is meant to protect the community, this objective can be attained properly through such a sentence, which had been designed for the purpose of helping in the offender being rehabilitation at expense of denunciation, deterrence and retribution. When such happens, suspended sentence is often appropriate and effective[7].

Section 3A(f) of the  Crimes (Sentencing Procedure) Act particularly deals with the conduct of offender being denounced[8]. The key goal of denunciation is for the offender to be condemned for their conduct. In Ryan v The Queen[9]  Justice Kirby provided that denunciation was a fundamental objective of criminal law. The goal here was to sentence the convicted offender where they are publicly denounced for their unlawful conduct. The goal of denouncing the conduct of offender needs that a sentence had to communicate the condemnation of the society, regarding the conduct of the particular offender. It is basically a representation of collective and symbolic statement where by the conduct of the offender has to be punished for encroaching on the basic code of values of society, which are preserved in the substantive criminal law. Particularly in the cases which involved offenses against the children, involving derogation relates to the fundamental human rights of vulnerable, immature and dependent individuals. Such situations require punishment as being the obvious purpose so that the standards which the society expects from its members are reinforced.

In the case of R v MacDonald[10], the notion of denunciation made its very first appearance. In this case, Gleeson CJ, Hunt CJ and Kirby P stated that in that case it was important to keep the denunciatory role of sentencing in mind. In the cases involving manslaughter, there is felonious taking of human life. This could cover a range of situation which requires wider variety of penal consequences. Despite the form taken by unlawful homicide, it is recognized by the law as being the most serious crime as per the case of R v Hill[11]. The key goal of criminal justice system is protecting human life and ensuring personal safety. The value given to the human life by the community is reflected in the expectations of it from the criminal justice system. And in this very fashion, society had the entitlement of having the conduct of defendant denounced.

Specific reference was given to section 3A(f) of the  Crimes (Sentencing Procedure) Act[12] in R v King[13]  and in R v MacDonald it was provided that the society had the right of having the sentence imposed denounce the offender’s criminal conduct. Further, where the sentence fails in doing so, it means that there has been an error in the sentencing discretion being exercised. In R v King, a suspended sentence for sexual intercourse offence with a ten year old child fell short of properly denouncing the crime. Even in the ordinary cases, there is a need to give more weight to the purpose of denunciation. For instance, R v Nguyen[14], there was a need to give more weight to an individual like police officer, who had been directly involved in the administration of justice, where such person acted in a manner where the course of justice was prevented.

One of the justifications which are given for imposing penalties stems from symbolic denunciation, where it is stated that if a specific kind of behaviour is denounced, it would reaffirm the validity of moral attitudes to such behaviour. As per one of the White Paper of Conservative Government, there are a number of instances where the punishment can denounce criminal behaviour and also can express the public repugnance of it. This aim basically reflects the blameworthiness to the offence. Further, the denunciatory sentences have an ironic feature which provides that there is no need of complying with this objective. It has more of a symbolic function, where the sentence is passed based on expectations of the public to satisfy their moral standards. To put it more simply denunciation is required to uphold the societal moral values, where for the wrongful act or crime undertaken by the individual, they would be sentenced, to uphold the moral values. So, for instance, where a person is involved in a fight which gravely injures the other person, so as to cause bodily harm, it becomes necessary to award sentencing to the offender. This would help the society in upholding its social values and norms that to injure or hit another person is wrong. It would not be wrong to say that denunciation is basically upholding the moral values.

The Role of Denunciation in Criminal Sentencing

The problem which is often associated with denunciation is that it is basically the disapproval of the society towards certain acts of a person and it is awarded even when the other objectives of sentencing are not met. So, even when the principles of general deterrence, retribution, community protection and specific deterrence are not satisfied, denunciation would result in the individual being sentenced for the offence undertaken by them, just to conform to the societal standards and beliefs. What would happen if the belief of society in certain case is wrong? Would denunciation be justified then? What would have happened if denunciation principle was presented during the witch hunting story times? Where every person considers a specific woman as a witch, would her denunciation be justified, just to serve the symbolic function?

One thing which is worth noting is that denunciation is not of the offender, but it is of the conduct of the offender. So, basically the sentencers have to note that the offender is not personally denounced but their conduct is. There is a need for the sentencers for not indulging in the vulgar abuse of offenders as can be seen through the case of Sheriff[15], Young[16], Clarke[17]; and Beard[18]. There is a need for the sentencers to be careful in not allowing the personal views of the conduct of the offender cloud their judgment regarding the requirement of denunciation as being the objective for imposing sentencing in the particular matter. This danger had been referred to by Justice Fox in the matter of Dixon[19]. He directed the jury that they had to examine the case in a dispassionate manner where they would not allow for their feelings of abhorrence or distaste cloud their judgment. There is a need to apply such a caution to the sentencing judges as well. The duty of the sentencing judge is to do justice to Crown where they represent the community, and at the very same time, they also represent the guilty person. There is a need for special care to be taken in not assuming anything in a too ready manner where the matter of specific kinds of sexual conduct was involved, like oral genital contacts being regarded as abhorrent or indecent by the community. It is not known whether the community consensus is present on such matter, and even if it is present, on what such consensus is. In Ryan v The Queen, Justice Kirby considered the responsibility of the denunciatory function of the sentencer in the matter of sentencing of sexual offenders, who had also been paedophiles[20].

It is but natural that where the offence victims are young and they have been subjected to wrongful sexual conduct by another person having authority for a long period of time, the judges who perform the function of sending would develop a sense of shock and anger which is present in the society regarding such offences. Though, there was a need to put aside such emotions as far as was possible. In case this was not done, the society and the offender would be left with a belief that the judiciary rules on emotions and is prejudiced against the offenders, instead of ruling on the basis of legal and factual analysis of the offence, which forms the reasoning for the sentence being imposed. As a result of these observations, it is not suggested that the judicial reasoning for sentencing or even for the other judicial statements need to be entirely void of colour or verbal flourish. Though, where the denunciation of unlawful conduct is seen in light of purpose of judicial sentencing and criminal punishment, it would show that denunciation is substantially inherent in the punishment. In the quoted case, the appealing party could raise an argument that he had been additionally punished as he was a priest and a paedophile. Where such an approach is adopted, there would be specific error of sentencing. Where the reliance was placed on this by the appellant, they would have to show the same in ground of appeal. Though, where the judicial emotions are properly kept in check, as suggested earlier, such dangers could be avoided, which could other put the entire ruling of the case in jeopardy.

Thus, from the discussion undertaken in the previous segments, it can be concluded that denunciation is a valid sentencing objective. Even though this means that the society punishes the offenders for their wrongful conduct, even in absence of other sentencing objectives being met, it is an important part of the fabric of society, in terms of upholding the societal values and the moral standards. The discussion highlighted a number of cases where this objective resulted in sentencing and even the possibility of prejudice and wrong societal norms misguiding the course of judgment. This is the reason that, while using this objective, it is crucial that the decision by the judges is given in an impartial manner, so as to maintain the sanctity of the judgment.

Bagaric M, and Alexander T, ‘The Fallacy of Punishing Offenders for the Deeds of Others: An Argument for Abolishing Offence Prevalence as a Sentencing Aggravating Consideration’ (2016) 38(1) Sydney Law Review 23Beard [1967] Crim LR 376

Clarke [1968] Crim LR 47

Dixon (1975) 22 ACTR 13

R v Zamagias [2002] NSWCCA 17

R v MacDonald (unrep, 12/12/95, NSWCCA)

R v Hill (1981) 3 A Crim R 397 at 402

R v King [2009] NSWCCA 117 at [1] 

R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343 at [43]

Ryan v The Queen (2001) 206 CLR 267 at [118]

Sheriff 19/3/1998 CA Vic

Young [1972] Crim LR 650

Crimes (Sentencing Procedure) Act, 1999 (NSW)

Bartleby, The Different Aims of Sentencing Essay (2018) <https://www.bartleby.com/essay/The-Different-Aims-of-Sentencing-P33Y9ZYTC>

Judicial College, 7.7.2 - Denunciation of conduct not offender (14 December 2004) <https://www.judicialcollege.vic.edu.au/eManuals/VSM/15375.htm>

Judicial Commission of New South Wales, Purposes of sentencing (2018) <https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html>

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