Chapter 5 Mechanisms to Inform the Sentencing Process Terms of Reference 4: 4.1 Whether any mechanism could be adopted to more adequately incorporate community views into the sentencing process. 4.2 Whether superior courts in Victoria should a practice of publishing guideline judgments on various categories of offences. 4.3 The extent to the proposed judicial studies institute should be responsible for the collection, analysis and publication of sentencing statistics and other sentencing information for the assistance of magistrates and judges. Background Of all of the aspects of the criminal justice system, sentencing is probably most in the public eye and the most sensitive to changes in community moods and public opinion. Crime and punishment exist within a fluid and changing context of community values, attitudes and emotions. A criminal justice system which loses touch with its community risks losing its legitimacy. However, a criminal justice system which attempts to respond to every passing mood, crisis or trauma will soon lose its ability to function as an institution which stands between the state and the individual and whose primary task is to uphold and reinforce the principles of justice. Sentencing is a highly complex task carried out under difficult circumstances by a heterogeneous group of people operating in different levels of courts. Sentencers differ among themselves in their views and these differences are reflected in the 80,000 to 90,000 sentences handed down in Victoria each year in the Magistrates’ Court, the County and Supreme Courts. When sentencing an offender who is before the court a sentencer must consider three major categories of information. First, there are the general aims of punishment and the current attitudes of the legislature, judiciary and the public toward the appropriate balance between the retributive, deterrent and rehabilitative goals of the criminal law. Second, there is information about the offence itself. This includes consideration of such matters as the gravity of the crime as measured by the legislative penalty attached to it or by its social danger, the harm done (particularly having regard to its mode of execution and its effect on the victim), the prevalence of the offence, and the degree of participation by the person charged. Third, information about
Chapter 5 Mechanisms to Inform the Sentencing Process Terms of Reference 4: 4.1 Whether any mechanism could be adopted to more adequately incorporate community views into the sentencing process. 4.2 Whether superior courts in Victoria should a practice of publishing guideline judgments on various categories of offences. 4.3 The extent to the proposed judicial studies institute should be responsible for the collection, analysis and publication of sentencing statistics and other sentencing information for the assistance of magistrates and judges. Background Of all of the aspects of the criminal justice system, sentencing is probably most in the public eye and the most sensitive to changes in community moods and public opinion. Crime and punishment exist within a fluid and changing context of community values, attitudes and emotions. A criminal justice system which loses touch with its community risks losing its legitimacy. However, a criminal justice system which attempts to respond to every passing mood, crisis or trauma will soon lose its ability to function as an institution which stands between the state and the individual and whose primary task is to uphold and reinforce the principles of justice. Sentencing is a highly complex task carried out under difficult circumstances by a heterogeneous group of people operating in different levels of courts. Sentencers differ among themselves in their views and these differences are reflected in the 80,000 to 90,000 sentences handed down in Victoria each year in the Magistrates’ Court, the County and Supreme Courts. When sentencing an offender who is before the court a sentencer must consider three major categories of information. First, there are the general aims of punishment and the current attitudes of the legislature, judiciary and the public toward the appropriate balance between the retributive, deterrent and rehabilitative goals of the criminal law. Second, there is information about the offence itself. This includes consideration of such matters as the gravity of the crime as measured by the legislative penalty attached to it or by its social danger, the harm done (particularly having regard to its mode of execution and its effect on the victim), the prevalence of the offence, and the degree of participation by the person charged. Third, information about
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