When the Downing Centre Court Magistrate sentenced one former policeman to a maximum 12 months in prison, she said one of her reasons for doing so was to ‘scare’ politicians and policemen and thereby deter them from lying to ICAC and similar investigatory bodies.
She said that they needed to know that the law would be heavy-handed for those who lied and got found out.
And to prove this, Her Honour meted out the jail sentence to former-policeman Shane Diehm, who was caught lying when under investigation for police misconduct, including illicit drug use.
Deterrence is one of the major aims of sentencing people who have committed crimes, especially crimes that are prevalent in the community and hard to detect.
Hundreds of years ago in Britain, before an organised police force was established, public execution and corporal punishment not only served to punish a wrongdoer, but also warned the general community about the consequences of disobeying the law.
This is called ‘general deterrence’.
Even today, the theory behind using an individual as an example to others is still influential.
General deterrence is a consideration that can be found at each stage of criminal proceedings: from the decision to press charges in the first place, to the decision on whether a case should go all the way to a defended hearing or jury trial, to the determination of the appropriate penalty, and all the way to considerations about whether a perceived ‘lenient sentence’ should be appealed to a higher court.
When the prosecution is making a decision whether or not to progress charges to a hearing or trial, one of the factors that they may consider is the prevalence of the particular offence and any need to deter the person charged or the community in general.
Deterring the person charged from re-offending is called ‘specific deterrence.
According to the Crimes (Sentencing Procedure) Act, one of the purposes of sentencing is to deter offenders and others from committing similar offences.
By strongly punishing a few, it is hoped that the majority will be deterred from offending.
But is this fair on the person charged, who may face severe outcomes for prevalent offences even though his or her individual act caused little or no harm to anyone?
Let’s say a Magistrate notes the prevalence of drugs within the community and faces a string of teenagers each caught with a few drugs at a music festival.
Ordinarily, minor drug charges can be dealt with by a section 10 dismissal or conditional release order, where the person receives no conviction.
Small quantities of illegal drug possession can and often are dealt with in this matter.
But suppose the Magistrate wants to send a message to the community that drug use, even in small amounts and for first time offenders, is not accepted and will not be tolerated.
He or she then ensures that each of the defendants is given a criminal record, potentially affecting their future employment and travel options.
This scenario has happened before, and criminal convictions for first time drug possession offences are more common many might think.
There is no doubt that this could have a detrimental effect on those convicted, all for the sake of a community lesson.
It may seem unfair for individuals to be dealt with in a particularly harsh way in order to send a message to the wider community – after all why should a person have a sentence more than ordinarily severe than if their case was dealt with only on its own facts?
When it comes to drug offences and drug-induced offences, a deterrence-based approach will often be futile or even counter-productive, because it ignores many underlying causes, including addiction, and also overlooks the possibility that branding people as ‘criminals’ can stigmatise and steer them away from the right track in life.
Imposing criminal convictions can make it much harder for young people to get into careers like teaching, nursing, accounting and law. It can even cause young people to ‘throw in the towel’ rather than pursue of such careers, and may even lead to further drug use and associated offending.
Surely this is against the interests of the general community.
Surely it’s better to focus on underlying problems and impose court-sanctioned treatment and rehabilitation plans, rather than recording criminal convictions and spitting minor offenders out into the community.
Intoxication and addiction can override the process of logical and rational thinking, which is required for the deterrence theory to even get a chance to work.
And harsh punishments are not as effective at reducing crime as popular sentiment might convey.
They can even cause problems within the criminal justice system by lowering the chance that defendants will plead guilty.
What do you think: should we move more towards a rehabilitation and restorative justice-based approach to sentencing? Or are harsh punishments the way to go?
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