Sentencing Criminal Offenders – You Be the Judge

Man walking towards a doorDo you think the sentences that judges hand out are too soft, or out of touch with community expectations? If you were the judge, how would you sentence a person who broke the law?

It’s a commonly held view that judges are more lenient than the public when it comes to sentencing people found guilty of crime, but according to research by Kate Warner, the Governor of Tasmania and Emeritus Professor of Law at the University of Tasmania, this is not the case. Professor Warner found that when presented with the same information as judges, members of the public often recommend lighter sentences.

The study involved 987 Victorian jurors from 124 criminal trials in the County Court between 2013 and 2015. Jurors from criminal trials were asked before the sentence was handed down what sentence they thought the offender should be given. In 62 per cent of cases, jurors proposed a lighter sentence than the judge.

When is a sentence decided, and by whom?

It is the role of the courts, through a judge or magistrate, to sentence an offender. A sentence is decided when a person pleads guilty or is found guilty after a trial or a hearing.

There are three levels of Victorian courts that sentence adult offenders:

  1. Magistrates’ Court – deals with the vast majority of sentencing in Victoria for the less serious offences like theft, less serious assaults, and most driving offences.
  2. County Court – deals with serious offences including culpable driving causing death, armed robbery, drug trafficking, and sexual offences.
  3. Supreme Court – deals with the most serious criminal offences such as murder, and manslaughter.

How do judges decide a criminal sentence?

Judges deciding a sentence need to balance a number of principles, purposes and factors to ensure a fair and appropriate outcome. The principles of sentencing are illustrated below.

Image credit: Design by Jade Cho. Image produced as part of a 2016 partnership between the Sentencing Advisory Council and the Master of Communication Design program, School of Media and Communication, RMIT University.

Under Victorian law there are five purposes for a sentence, and all sentences must fulfill at least one:

  1. To punish the offender in a way that is just in all the circumstances;
  2. To deter the offender or others from committing the offence in the future;
  3. To rehabilitate the offender from personal circumstances (like drugs or alcohol) that contributed to the offending;
  4. To show community disapproval (denunciation) of the offending behaviour; and
  5. To protect the community from the offender.

Sentencing factors are considerations that a judge must take into account when deciding a sentence. This ensures that each criminal matter is weighed according to its own unique circumstances. No two offences or offenders are exactly the same, and sentences need to reflect this.

The sentencing factors are set out in the Sentencing Act and include:

  • the nature and seriousness of the offence
  • the impact of the offence on any victims
  • the offender’s previous character, intention, and prior offending
  • whether the offender pleaded guilty
  • the maximum penalty for the offence
  • what sentences have been imposed for similar offences.

What types of sentences are there?

Judges have multiple sentencing options which include:

  • Adjourned undertaking – the offender’s sentence is postponed for up to five years, with the offender making an undertaking (agreement) to behave in a certain way (e.g. to complete a drug and alcohol treatment program). At the end of the adjournment period, the offender returns to court and if they have not reoffended and have complied with the undertaking, the judge may release them without further sentence.
  • Fines – the offender is ordered to pay a financial penalty.
  • Community Correction Order – a flexible order in which the offender is released into the community under conditions set by the court. Conditions may include unpaid community work, an alcohol and drug ban, treatment in a rehabilitation program or restrictions on movement.
  • Imprisonment – where the offender is held in prison. Prisons vary according to their level of security: high, medium, and low. Imprisonment is always considered a sentence of last resort.

Would you like to have a go at sentencing?

As part of the Sentencing Advisory Council’s role in informing and educating the community about sentencing issues, they have created ‘You be the Judge’, an online program which gives the public an opportunity to decide the sentence in scenarios based on real life cases. Why don’t you be the judge? You can find it here. Other teaching and study materials on sentencing are available here.

This page was last updated on April 10, 2018