Understand the principles & purposes of punishment

Corrections: Sentencing & Punishment
Module 8 Lecture
1
Preparing for this module
You are expected to have
completed the following
reading before your
lecture & workshop.
Easton & Piper (2012),
‘Part A: Sentencing
Principles and Policies –
Influences on penal
policy’
Bun et al (2019), Dead
Man Walking and the
Rhetoric of an ‘eye for an
eye’ A Punishment Out of
the Public View
Reading
Attend both the
lecture and workshop
this week to enhance
your learning
experience.
Attend
You must complete the
quiz on this module
available on vUWS.
Assessments
2
About this lecture
Lecture Learning Outcomes
1. Understand the principles & purposes of
punishment
2. Recognise the range of sentencing options
available in NSW
3. Identify a range of factors that impact on
sentencing decisions
Lecture is constructed from the following
readings
Easton, S, & Piper, C 2012, ‘Part A: Sentencing
Principles and Policies – Influences on penal policy‘, in
Sentencing and Punishment : The Quest for Justice,
Oxford University Press, Oxford University Press, pp. 3-
35
Bun, M, Kelaher, R, Sarafidis, V, & Weatherburn, D
2019, ‘Crime, deterrence and punishment revisited’,
Empirical Economics,
Empirical economics, DOI:
10.1007/s00181-019-01758-6
Optional: Ienna, M 1997, ‘Dead Man Walking and the
Rhetoric of an ‘eye for an eye’ A Punishment Out of
the Public View’,
Current Issues in Criminal Justice, vol.
8, no. 3, pp. 324-336
CULT1025 Week 8 Lecture 3
4
Have you ever thought about why we think
punishment is the right response to crime and
why we think it helps us achieve justice?
CULT1025 Week 8 Lecture
What is punishment?
It must involve
pain or other
consequences
normally
considered
unpleasant.
It must be for an
offence against
legal rules.
It must be of an
actual or
supposed
offender for this
offence
It must be
intentionally
administered by
human being
other than the
offender.
It must be
imposed and
administered by
an authority
constituted by a
legal system
against which
the offence is
committed.
5
Cesare Beccaria: The Origin of Punishment
During the 18th Century
Beccaria argued that
punishment should be a tool
whereby the community
protects the common good
against the individual.
Only punishment could serve
to contain the ill motives of
individual greed.
The limits of punishment are
that it must not go beyond
what is necessary for
defending the public good lest
it become unjust.
6
Jeremy Bentham:
The Utilitarian Theory of Punishment
When are we justified in punishing?
Cost benefit
Deterrence
Rehabilitation
CULT1025 Week 8 Lecture 7
Jeremy Bentham:
The Utilitarian Theory of Punishment
What are the limits of just punishment?
Where punishment is groundless
Where punishment is inefficacious
Where punishment is unprofitable
Where punishment is needless
8
For the greater good!
CULT1025 Week 8 Lecture
Purpose of sentencing/punishment
9
Retribution
Community
outrage leads to
the offender
receiving
proportional to
the nature of the
offence
Rehabilitation
Penalty is
designed to
influence the
offender away
from future
criminal
behaviour in
favour of lawabiding
behaviour
Deterrence
Penalty will
discourage the
offender, and
others of like
disposition in the
community, from
engaging in
further criminal
behaviour
Reintegration
Penalty is
designed so that
the offender can
successfully
integrate back
into the
community
Community Protection
Penalty is
designed to
protect the
community from
the offender, and
criminal
behaviour

Retribution
Retribution is giving people what they
deserve, hitting them back with equal
force to a blow they have struck, and
treating someone as they have treated
others
Retributivism ties punishment to what
the person deserves, thereby avoiding the
problems of over-punishing, underpunishing, and punishing the innocent
10
e.g. an eye for an eye!
CULT1025 Week 8 Lecture
Activity: Punishing the Three Drunks
11
Three neighbours get drunk at a bar. Each takes the same route home but 15 minutes after the
one before them.
The first drives home without incident except that a police officer happens to pull him over
right next to his home on a random check and arrests him for drunk driving. Shortly after
the first man is arrested, it begins to rain.
The second drives home but skids off the wet road during a sharp corner into a telephone
pole where police find him and arrest him for drunk driving.
The third drives home and skids at the same wet sharp corner but due to bad luck or
timing hits a family of four head on, who are killed. The third man is arrested for drunk
driving (and four counts of manslaughter).
You, a retributionist, are assigned to determine the deserved punishments for each of the men.
Each of the three intended to drive home drunk, but due to rain and bad timing the results of
each drunk driving attempt varied widely.
What is the deserved punishment for each of the men?
Rehabilitation
Think of prison life
in NSW and the
many rehabilitation
programs in place.
Why do we offer
educational
opportunities in
prison?
Why are inmates
encouraged to
work?
We do these things
in the hope that
inmates will learn
the value of
legitimate work and
hopefully gain the
skills needed to be
productive citizens.
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Deterrence
In the name of deterrence,
several state legislatures have
adopted “three strikes and you’re
out” laws. But this has entailed
that the man with two robbery
convictions who then writes bad
checks gets a life sentence.
Either we reject this law (and
utilitarian deterrence) or we
reject what the man deserves
(retribution).
How can we resolve this?
13
Example: Mandatory Sentencing
Under the Northern Territory mandatory
sentencing regime a 24-year-old indigenous
mother was sentenced to 14 days in prison for
receiving a stolen $2.50 can of beer; a 27-yearold teacher disputed the quality of a hotdog at
a Darwin fast food bar and poured water onto
the till, resulting in 14 days in prison; and an
18-year-old indigenous man who admitted to
police that he stole a $2.50 cigarette lighter
also got 14 days in prison.

Denouncing
Perhaps another objective of punishment is to
denounce not only the criminal behavior but
the individual as well.
Naming and shaming offenders
Reintegrative shaming is an example of where
this can have a positive impact on the
offender (discussed during module 9).
Could reduce/prevent reoffending.
CULT1025 Week 8 Lecture 14
What do you think should be the main objective of
“punishment” in the criminal justice system?
CULT1025 Week 8 Lecture 15
Our legislation also stipulate these purposes
of sentencing!
CULT1025 Week 8 Lecture 16
Sentencing Hearing
Held on a separate day
to the trial or summary
hearing before the
judicial officer
Victims have the right
to be present at the
sentencing hearing
The court often obtains
a pre-sentence report
(PSR) from
The PSR details the
offender’s background
& any appropriate or
available sentencing
options
CULT1025 Week 8 Lecture 17
Sentencing in the Local Court
Where an offender is sentenced in the
Local Court either for a summary matter
or for an indictable matter dealt with
summarily, the maximum penalty which
the Local Court can impose is 2 years
CULT1025 Week 8 Lecture 18
Factors in deciding a sentence

In determining the
sentence, the judicial
officer must take into
account a number of
factors, such as:
The facts of the offence;
The circumstances of the
offence;
Subjective factors about the
offender; and relevant
sentencing law
General pattern of sentencing
by criminal courts for the
offence in question

CULT1025 Week 8 Lecture 19
Factors affecting a sentencing decision
MITIGATING FACTORS listed in section 21A(3) of
the Act include:
The injury suffered by the victim was not substantial;
Defendant was under duress when carrying out the
offence;
The defendant was a first time offender;
The defendant improved significantly during and after
rehabilitation;
Evidence to prove that the defendant has shown
remorse for the offence; and
The defendant has entered into a plea guilty.
Aggravating factors listed in Section 21A(2) of the
Act include:
Offence involved the actual or threatened use of
violence or weapon or explosives;
Defendant has a criminal record
Offence involved gratuitous cruelty;
Injury sustained by the victim was substantial; and
The offence was part of a planned or organised
criminal activity.
Click here for the Crimes (Sentencing Procedure) Act 1999 CULT1025 Week 8 Lecture – 21A Aggravating, mitigating factors in sentencing 20
Sentencing Options
Crimes (Sentencing Procedure) Act 1999
21
Division 2 – Custodial sentences
Imprisonment
(s.5)
Compulsory
drug treatment
detention (s.5A)
Intensive
correction
orders (s.7)
Division 3 – Non-custodial alternatives
Community
correction
orders (s.8)
Conditional
release orders
(s.9)
Dismissal of
charges &
conditional
discharge of
offender (s.10)
Conviction with
no other
penalty (s.10A)
Deferral of
sentencing for
rehabilitation
(s.11)

Sentencing Options
Crimes (Sentencing Procedure) Act 1999
Division 4A Non-association and place restriction orders
Non-association
and place
restriction
orders (s.17A)
Division 4 Fines
Fines as an additional or
alternative penalty to
imprisonment for offences
dealt with on indictment
(s.15)
Fines for bodies corporate
for offences punishable by
imprisonment only (s16)
Penalty units (multiplying
$110 by that number of
penalty units) (s.17)
22
Division 2 – Custodial sentences
Imprisonment (s.5)
“A court must not sentence an offender
to imprisonment unless it is satisfied,
having considered all possible
alternatives, that no penalty other than
imprisonment is appropriate”
Did you know – Australia has a total of
101 prisons. NSW has 27 prisons in total.
NSW Corrective Services are responsible
for keeping inmates secure, supervising
offenders in the community, and reducing
reoffending.
Australia has 9 private prisons–
2 prisons in Queensland,
2 in New South Wales,
1 in South Australia,
2 in Victoria and
2 in Western Australia
Private prisons incarcerate 18.5% of
the prison population of Australia
CULT1025 Week 8 Lecture 23
Division 2 – Custodial sentences
Imprisonment (s.5) & security classification
24
Maximum security
correctional centres
• inmates whose escape
would be highly
dangerous to members
of the public or the
security of the State.
• e.g. Silverwater,
Goulburn, & Lithgow
Medium security
correctional centres
• surrounded by walls or
high security fences,
but inmates move
around inside more
freely than in maximum
security.
• E.g. John Moroney
(Windsor)
Minimum security
correctional centres
• inmates who can be
trusted in open
conditions where there
are fewer physical
barriers to escape.
• E.g. Emu Plains

Imprisonment
Activity: Welcome to your cell
25
https://youtu.be/odcsxUbVyZA
CULT1025 Week 8 Lecture
Johnny Perez was in solitary confinement for three years
CULT1025 Week 8 Lecture 26
Division 2 – Custodial sentences
Imprisonment (s.5) & life after
Offenders could
experience the
following challenges
when re-entering
the community.
• Finding services that support their
diverse needs;
• Finding safe and non-violent
accommodation;
• Dealing with risks of drug use;
• Re-establishing or cutting ties from
family and community relations;
• Finding employment;
• Not resuming unhealthy friendships;
and
• Re-uniting with children
27
Division 2 – Custodial sentences
Compulsory drug treatment detention (s.5A)
“The Drug Court may make an order under Part 2A of the Drug Court Act 1998 directing
that an offender, who is an eligible convicted offender within the meaning of that Act, serve
a sentence of imprisonment by way of compulsory drug treatment detention.”
The Compulsory Drug Treatment Correctional Centre (CDTCC) is separately based on the
Parklea Correctional Complex.
Entry to the program is by way of an order issued by the NSW Drug Court located in
Parramatta.
The program has three stages that individuals must complete successfully.
28
Division 2 – Custodial sentences
Compulsory drug treatment detention (s.5A)

STAGE 1
• Provision of intensive programs
to address offending behaviour
and drug use in a secure
environment.
• Programs will include
motivational sessions, cognitive
skills based offending and drug
use reduction programs as well
as self-help programs based on
programs available and able to
be accessed in the community
after the sentence has expired.

 

STAGE 2
• intensive preparation for
community living including
attendance at work, education
and programs in the
community.
• Re-settlement issues such as
housing, employment and
family dynamics will also be
stressed at this stage.

 

STAGE 3
• Includes the use of electronic
monitoring of offenders as they
are integrating in the
community

29
Division 2 – Custodial sentences
Compulsory drug treatment detention (s.5A)
30
https://west-sydney-primo.hosted.exlibrisgroup.com/permalink/f/1t3tv7l/TN_cdi_rmit_primary_TSM201802130006
A look inside
how the NSW
Drug Court
works!

Division 3 – Non-custodial alternatives
Community correction orders (s.8)
The maximum term of a community correction order is 3 years (s.85(2))
Additional conditions of a community correction order that are available to be imposed are:
a. up to 500 hours of community service work
b. participation in a rehabilitation program or to receive treatment
c. abstention from alcohol or drugs or both
d. a non-association condition prohibiting association with particular persons
e. a place restriction condition prohibiting the frequenting of or visits to a particular place
or area
f. a supervision condition requiring the offender to submit to supervision
See
Part 7 Sentencing procedures for community correction orders
31
Division 3 – Non-custodial alternatives
Corrective Services NSW: Managing Offenders in the Community
32
https://youtu.be/g3-opFglP6c
Division 4A – Non-association &
place restriction orders
Non-association order
• being an order prohibiting the
offender from associating with a
specified person for a specified term,
or
Place restriction order
• being an order prohibiting the
offender from frequenting or visiting a
specified place or district for a
specified term
CULT1025 Week 8 Lecture 33
NSW Corrective Services
Delivers professional correctional services and
programs to reduce re-offending and enhance
community safety.
As an important element of the criminal
justice system, CSNSW manages remand and
sentenced inmates as well as offenders in the
community.
Thus are considered an integral internal
stakeholder to the criminal justice system.
Can be a career trajectory for you!
CULT1025 Week 8 Lecture 34
NSW Sentencing
Snapshot
CULT1025 Week 8 Lecture 35

Conclusion
Sentencing is a complex function.
The sentencing judge has the unenviable task of sifting through a host of facts in a
procedurally fair manner, deciding along the way whether they are relevant to the
sentencing decision.
Having accomplished that, they will then have to categorise the facts into aggravating and
mitigating factors and determine the weight to be given to each.
In deciding on the appropriate sentence, the judge must reflect on the often competing
aims of sentencing, comply with any judicial or legislative guidelines on sentencing, note
any relevant sentencing trends and practices, and hope that the proposed sentence is in
tune with community standards and expectations.
37
Next Week
38
Alternatives to the traditional criminal justice system
Be sure to review the set readings before class
Daly, K & Marchetti, E 2012, ‘Innovative justice
processes: restorative justice, Indigenous justice, and
therapeutic jurisprudence’, in M Marmo, W De Lint &
D Palmer (eds.),
Crime and justice: a guide to
criminology
, 4th edn, Lawbook Co., Sydney, pp. 455–
481.
Optional: Lovell, M, Guthrie, J, Simpson P, & Butler T
2018 ‘Navigating the Political Landscape of Australian
Criminal Justice Reform: Senior Policy-makers on
Alternatives to Incarceration’,
Current Issues in
Criminal Justice
, vol.29, no.3, 227-241,
DOI:10.1080/10345329.2018.12036099
CULT1025 Week 8 Lecture
References
Findlay, M, Odgers, S & Yeo, S 2014, ‘Sentencing’, in M Findlay, S Odgers & S Yeo
(eds.),
Australian criminal justice, 5th edn, Oxford University Press, South Melbourne, pp.
237–280.
Findlay, M, Odgers, S & Yeo, S 2014, ‘Punishment and penalty’, in M Findlay, S Odgers & S
Yeo (eds.),
Australian criminal justice, 5th edn, Oxford University Press, South Melbourne,
pp. 202–236
.
Crimes (Sentencing Procedure) Act 1999 NSW
39