Principles of sentencing
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Commenting on a number of studies which investigated links between offending rates on the one
hand, and increased penalties or the chance of being caught and convicted on the other, Von
Hirsch noted that:
‘Current research confirms earlier correlational and quasi-experimental studies and
indicates consistent and significant negative correlations between the likelihood of
conviction and crime rates. The data on severity effects is less impressive.’
This suggests that relying on more severe penalties and sentences as a significant factor in
reducing crime rates may not be as effective as some policy makers seem to assume.
To what extent do legislators and criminal justice policy makers in Queensland seem to be
guided by a belief in the deterrent effect of stronger penalties? What factors might impact on
whether the severity of a particular penalty available to the sentencing court for a given offence
does, in fact, deter? Are there other justifications for increasing the statutory maximum penalties
for offences apart from an appeal to deterrence?
[TOTAL: 20 MARKS]
In R v Bojovic  2 Qd R 183, the Queensland Court of Appeal held that:
“In a case such as the present where the essential feature was over-reaction in the
course of self-defence and where the danger of repetition seems remote we fail to see
why any additional recommendation over and above an adequate sentence, which in this
case is eight years, would be called for. “
If an offender is convicted of a manslaughter offence and then, by applying the normal principles
and factors of sentencing, the court is of the view that a custodial penalty in the range of between
6 and 8 years is appropriate – does the Penalties and Sentences Act 1997 (Qld) then require the
court to make a declaration that the offender is convicted of a serious violent offence (SVO)?
If the court considers that this offender deserves the benefit of not being subject to a SVO
declaration, can it then fix the penalty at the higher end of the 6 to 8 year range, based on the
rationale that this will ensure a significant time in custody but without that time in actual custody
being calculated with reference to an SVO declaration?
[TOTAL: 20 MARKS]
When might a sentencing court be of the view that a substantial fine is the appropriate penalty
for a particular offender? How can a pecuniary penalty help achieve the purpose for which a
sentence is imposed?
The most common criticism of fines is that they can be an inequitable form of punishment where
co-offenders are convicted of the same offence, but who have different levels of culpability
and/or different capacities to pay. It is also probably accurate to say that fines rarely do anything
to address the causes of offending. Is this criticism justified?
How might a court combine a fine with some other sort of penalty where a fine alone is
considered insufficient or inappropriate?
[TOTAL: 20 MARKS]
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