Sentencing: The rationality free zone 
Posted By Mirko Bagaric on May 24th, 2007
The pain suffered by the family of hit run victim Sen-Constable Robert Kerr who was killed after being struck by a car driven by Raymond Oates far outweighs the hardship of spending six months in jail and being disqualified from driving for two years. That is incontestable.
The sentence imposed on Oates demeans the worth of Mr Kerr and repudiates properly held community values regarding making criminals accountable for their actions. The victim’s son, Stephen Kerr, was right when he stated that no sentence could compensate for the loss of his father, but the sentence didn’t ‘send much of a message to the community’.
Of course, that a sentence of this nature would be handed down is no surprise to Victorians. In the past few years there has been a string of high profile grossly inadequate sanctions meted out to offenders who forever ruin the lives of innocent people. Each time the response by the judiciary and government is the same: sentencing offenders is a tough gig and we are best off leaving it to the wisdom of judges.
Moved by public criticism following a number of recent lenient sentences for child killers the Chief Justice of Victorian penned a piece for these pages (30/11/2006) trying to explain to the community why many sentences don’t meet community expectations.
In doing so, she highlights exactly why the judiciary and the government have turned sentencing into a moral and intellectual wasteland and why we have no basis for confidence that some semblance of justice will be infused into the sentencing system in the foreseeable future.
The courts accept that the main aim of sentencing should be to ensure that the hardship inflicted on the offender by the sanction matches the pain inflicted on the victim by the crime. This is called the proportionality principle. This principle has widespread support in the community.
Despite furious agreement on this front, something often goes horribly wrong when the courts hand down a sentence. This is because there are hundreds of factors that courts take into consideration in reducing (or in rare cases increasing) the penalty.
Remorse, rehabilitation and pleading guilty were the considerations that the Chief Justice mentioned as being reasons that judges often reduce sentences. But there is one central problem with these factors: they are devoid of an empirical or moral foundation.
Let’s look at remorse first. The fact that an offender ceases being proud of driving dangerously and leaving the pedestrian he has struck in a ditch on the side of the road and suddenly has his remorse gland stimulated cannot ethically justify the imposition of a lower sentence. Minimal decency commands that people should be sorry for harming others and people should not get a benefit for what is expected of them.
In theory the desire to rehabilitate offenders can serve as a basis for reducing sentences. Yet, there is a slight problem here: it doesn’t work. Governments world-wide have spent hundreds of millions dollars on projects designed to illicit attitudinal reform in criminals. While the research data is not conclusive, the overwhelming weight of evidence suggests that the behavioural mental wiring of people is fixed by the time they reach early adulthood.
The most commonly used contemporary rehabilitative programs assume that people commit crime because of defects in ‘social intelligence’. To remedy this, programs use cognitive-behavioural and educational methods to rehabilitate offenders. A recent evaluation of these programs in the UK showed that they do not reduce the recidivism rate of offenders. The programs are a failure – so too logically is any system that reduces penalties on the basis of unattainable objectives.
And as for pleading guilty, there are strong reasons for reducing the penalties of offenders who concede defeat when they are nabbed. Pleading guilty means that victims aren’t put through the turmoil of the trial process and the community is spared hundreds of thousands of dollars in court and legal aid costs.
But in the system that the Chief Justice endorses there is no incentive for offenders to plead guilty. Theoretically offenders get less of a whack if they plead guilty rather than being found guilty after going to trial. But reality is a different thing. Judges don’t state how much discount they actually give for pleading guilty.
In reality it could 30 per cent in one case and zero in another. In fact the evidence suggests that pleading guilty makes very little difference to the ultimate penalty, especially in the lower courts with sentencers merely paying lip service to it as a mitigating consideration. It is not surprising that many experienced criminals always contest charges.
Thus, while judges might like to invoke mitigating considerations, these factors have no scientific or moral justification. They are simply wrong.
There is only one way to bring sentencing law and practice out of the dark ages. We need a two-pronged system of penalties. Serious sex and violent offenders should always go to jail for significant periods, whereas softer penalties should be imposed on other types of offenders. Minimum jail terms are the only way to ensure that such offenders always get their just deserts. This would in fact result in a net reduction in jail numbers, but ensure that the people who deserve to be there could not avoid the experience by sulking to a judge.
Oates did not intend to kill Stephen Kerr. Yet the consequences for Kerr and his family could not be more terrible as a result of Oates’ callous and dangerous behaviour. While Oates is not as culpable as an intentional killer, the sentencing system must place greater weight on the consequences of a person’s behaviour instead of focusing mainly on their intentions. In the end, as with all things in life, consequences matters most.
That is why many members of the community are manifestly right when they say that six months imprisonment for killing a pedestrian and failing to stop and offer assistance is a manifestly inadequate penalty.
A version of this was in the Herald Sun (Melbourne) on 24 May 2007.