Sentencing

Question 1

Factors must consider in determining the appropriate sentence

Answer 1

Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing –

(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.

Question 2

The various philosophical rationales

Answer 2

When a court passes sentence, it authorises the use of state coercion against a person for committing an offence.

The sanction may take the form of some deprivation, restriction, or positive obligation.

Deprivations and obligations are fairly widespread in social context – e.g. duties to pay taxes, to complete various official forms, etc.

But when imposed as a sentence,
there is the added element of condemnation, labelling, and censure of the offender for the offence. In view of the direct personal and indirect social effects this can have, punishment requires justification.

In order to understand punishment as a social institution and to understand the tensions inherent in any given ‘system’, there is benefit in identifying the principal approaches to sentencing.

Question 3

Desert Theories

Answer 3

Retributive theories of punishment have a long history, in their modern guise as the ‘just deserts’ perspective, they argue that punishment is justified as the morally appropriate response to crime.

Proportionality is the key concept in desert theory.

There are two forms of proportionality.

Cardinal proportionality concerns the magnitude of the penalty, requiring that it not be out of proportion to the gravity of the conduct.

Ordinal proportionality concerns the ranking of the relative seriousness of different offences.

Question 4

Deterrence Theories

Answer 4

Deterrence theories regard the prevention of further offences through the threat of legal sanctions as the rationale for punishing.

More attention has been devoted to general deterrence, which involves calculating the penalty on the basis of what will deter others from committing a similar offence.

Question 5

Rehabilitation

Answer 5

The rationale here is to prevent further offending by the individual through rehabilitation, which may involve therapy, counselling, cognitive-behavioural programmes, skills training, etc.

The rehabilitative approach advocates that sentences should be tailored to the needs of the particular offenders.

Question 6

Incapacitation

Answer 6

The incapacitative approach is to
identify offenders or groups of offenders
who are likely to do such harm in the future
that special protective measures
(usually in the form of lengthy incarceration)
are warranted.

Question 7

Restorative and Reparative Theories

Answer 7

These are not regarded as theories of punishment.

Rather, their argument is that sentences should move away from punishment towards restitution and reparation,
aimed at restoring the harm done
to the victim and to the community
(Hoyle, 2007).

Restorative theories emphasise the significance of stakeholders in the offence
(not just the state and the offender, but also the victim and the community),

the importance of process
(bringing stakeholders together in order to decide on the response to the offence),

and restorative goals
(usually some form of reparation to the victim and ‘restoration’ of the community).