The Classical Principles of Sentencing - Book Report/Review Example

TODAY'S RELEVANCY OF PRINCIPLES OF SENTENCING IN RV SARGEANT 1974 This paper seeks to validate today's relevancy of Lawton L.J's . pronouncement in R V Sargeant 1974 about the classical principles of sentencing to be followed.. Retribution, Deterrence, Prevention and Rehabilitation which he emphasised to be guiding principles of sentencing are valid even to day in more specialised forms to be applied in graded manner to the individual offender concerned rather than on mass scale without differential approach. The human rights unknown in those days have now come into play a crucial role in all walks of life more so in sentencing reforms. The retributive approach is on the wane slowly and a day will come when it will be altogether removed from the statute book as the concept of punishing individuals rather than reforming them on a restorative basis implying conciliation between the offenders and society rather than the offence is against the State, is gaining recognition throughout the world. The State would be expected to play a conciliator's role rather than as an administrator of sense with no human touch. Introduction The proposition before us is to examine how relevant the classical principles of sentencing cited in R V Sargeant 1974 1 are today. The judgement refers to the imperative of changing from old sentencing principle of retribution to rehabilitation. This concern of Lawton L.J. needs to examine as to whether it has been just in name or really being practiced by judiciary to day. Facts of the case A young man of 26 years of age was charged of affray. The trial court which convicted him for 2 years of imprisonment on his pleading guilty, failed to analyse the case according to classical principles of sentencing. The appeal court held that boy's antecedents were not as bad as they were made out to be and hence reduced the sentence. The other criteria followed by the learned judge Lawton, was that it should be the principle of rehabilitation and not retribution that should be the guideline for sentencing the accused proved guilty. The question is strange because it is not the reverse situation that is enquired about. That is whether principle of retribution is still the norm. The message in the present case is that retribution is not the answer even for a deterrent punishment and it goes without saying that in the circumstances in which the young man was forced to commit affray supported by his good background does not warrant a deterrent punishment such as the one passed on him. As there is no set of rigid calculations and rules judges have to exercise great care in meting out punishment in a graded manner commensurate with the seriousness of the crime, mental condition of the accused and expectations of the society from the State on such matters. We have to examine now whether judges do exercise great care in handing out sentences by following a rehabilitative approach or they still cling to the principle of retribution. Principles of Sentencing. The classical principles of sentencing are retribution, deterrence, prevention and rehabilitation. Lawton L.J. in his decision expressed that any judge with a duty of sentencing must always weigh them against the facts of the case dealt with and apply the one which is the most appropriate. The Judicial Studies Board in their Adult Court Bench Book has enumerated checklists for reaching a decision on the quantum of sentence. Firstly the court has to conduct itself consistent with the policy of European Convention of Human Rights which stipulates that no decision of a court much less its practices and procedures should act in breach of an individual's human rights applicable to not only the defendants but also victims and witnesses. Article 6 of the convention stresses the importance of the individual's right to a fair trial. The Adult Court Bench Book2 in pages 3-44 to 3-106 sets out check lists for passing sentences on various offences. The book brought out in 2003 is evident of the State's intention to deliver sentences in the most appropriate manner commensurate with facts of each case. "The Bench Book for the Adult Court is intended to assist magistrates to meet the high standards that are now expected of them. They will find that the Bench Book provides them with a set of tools which will assist them in their work. It will promote a consistent approach to decision making and court procedure. The national guidelines, checklists and pronouncements that are included should be of greatest value in helping magistrates undertake the task of decision making in a fair and structured manner. This will increase the public's confidence in their decisions"3. Consistency in sentencing An important yardstick to find how the classical principles of sentencing are being observes since the pronouncement of Lawton L.J., is to study the consistency in sentencing. Research on consistency carried out by David and Tyrer4 shows that individual judges and sentencers differ in their sentences in terms of length of custody for the same categories of offences. See Annexure A On theories of Punishment ""My object all sublime I shall achieve in time, to make the punishment fit the crime.": The Mikado in Gilbert and Sullivan's The Mikado "Since revenge for its own sake cannot be justified, it will follow that the natural justice of punishment must depend solely on its utility " Samuel Johnson "The public security is the principal end of public punishment." Samuel Johnson "The end of all punishment is reformation." Sir Thomas More""5 The retributive approach posits that the punishment is deserved by the offender.6 It does not consider future effects. It is assumed that it is perfectly alright to pay back in the same coin and that two wrongs can make a right like negative multiplied by negative is positive. This leads to the principle of 'just deserts' to argue for capital punishments. On the other hand reductivist approach is aimed at reducing the incidence of criminal offences. Each theory of sentencing has its own justifications for punishment. The deterrence effect behind the retributive sentencing does not appear to have any effect in preventing recurrence of crimes by the once punished offender nor in deterring others from committing crimes.7 Rehabilitation principle suggests that punishment be suited to the individual offender and not the offence itself. This is expected to result in reduction of crime by reforming the offenders who would not offend again. This is however not without criticism since criminologists believe that offenders assume it a form of punishment inside the prison. The psychological treatment of rehabilitation inside the prison is considered a punishment only and hence not likely to prevent recurrence of crimes. 8 Statistics Prison population as on 2004 was 75,057 in U.K. and is only increasing. This shows that reconviction rates are also on the increase implying little effect of deterrence among the offenders. There is fall from 21.2 % to 12.4 % in reconviction rates by previous convictions during the period from 1997 to March 2001.9 The figures raise the question whether punishment by imprisonment is really effective. "The legitimacy of the prison service is also being doubted as its purpose to rehabilitate offenders, give them both training and treatment, curing them of criminality and benefiting them and society as a whole are noticeably not working"10 Another school of thought is Restorative justice by which healing the wounds of the victims and reforming the offenders to law-abiding citizens are considered to result in improvement in interpersonal relationships amongst all the stake holders of the community. Hence the crime is not considered against the State but against the members of the society. ". A central premise of restorative justice is that victims, offenders, and the affected communities are all key stakeholders in the restorative process "11(Zehr, Mika; 1998). "Victims include not only those directly affected by the offence, but also family members and members of the affected community. The safety, support, and needs of these victims are the starting points for any restorative justice process. Thus a primary objective is to attend to victims' needs: material, financial, emotional, and social" 12(Tony F. Marshall). Conclusion The above discussion would show that the classical principles of sentencing recommended by Lawton L.J. are still valid today though in a more refined form. The guidelines for sentencing, human rights element introduced in the entire process of trial and conviction all indicate that the classical principles have undergone refinement to make them individualistic to the offender concerned rather than on mass scale in which cases incorrigible offenders would get less than proportionate punishment and offenders forced by circumstances, first time offenders would get more than proportionate punishment. Overall it appears the administrators of justice are working overtime tirelessly to remove the retributive approach altogether and at the same time to ensure no offender takes undue advantage of its absence in the days to come. Bibliography Adult court Bench Book Section 3 Ashworth Andrew 2004 Sentencing and Criminal Justice Fourth Edition Cambrdge University Press Annexure A RESEARCH ON CONSISTENCY IN SENTENCING IN ENGLAND AND WALES13 1. Davies and Tyrer14 carried out a project with 51 judges from 12 Crown Court centres in England and Wales in which the judges were asked to give their views on an appropriate sentence in response to five domestic burglary scenarios. By coincidence four of the five scenarios used equated with the definitions of different types of burglaries used by the Sentencing Advisory Panel in their guideline on sentencing burglary cases. These were: a 'standard domestic burglary' (displaying most of the following features: theft of electrical or personal items, damage only from break in, some turmoil or damage and no injury or violence); a burglary with a 'medium level' of aggravation (which has any one of the following factors: vulnerable victim but not targeted; victim at home (day or night); goods of high value (economic or sentimental); working in groups); a burglary with a 'high level' of aggravation (which has any one of the following factors: force used or threatened; victim injured; especially traumatic effect; professional planning, organisation or execution; vandalism; racial aggravation; vulnerable victim); a standard burglary with mitigated features (these being no damage to property; no property or low value property stolen). 2. Case study 1 related to a standard domestic burglary in which the offender had two previous convictions for non-domestic burglary and pled guilty. The vast majority of judges selected custodial sentences but some selected a non-custodial disposal. Custodial sentences ranged in length from 6 months to 24 months. Across the 11 courts the mean custodial sentence length was 18.1 months, ranging from an average of 11.24 months in one court to 25.5 months in another. 3. Case 2 was a standard domestic burglary with high level aggravation. The offender had three previous convictions for burglary, the most recent of which was for dwelling house burglary for which he served a custodial sentence. The offender pled guilty. All judges agreed that a custodial sentence was necessary in this case and imposed sentences ranging from 30 months to 84 months. Across the 11 courts the mean sentence length was 44.39 months, ranging from an average of 33 months in one court to 69 months in another. 4. In case 3, a standard burglary with medium level aggravating factors in which the offender had no previous convictions, two judges selected community disposals and the remainder opted for custodial sentences. The length of custodial sentences ranged from nine months to 36 months. Across the 11 courts the mean sentence length imposed was 23.6 months, ranging from an average of 12 months in one court to 29.6 months in another. 5. In case 4, a standard domestic burglary with mitigating features in which the offender had no previous convictions, was in part-time employment and pleaded guilty at the earliest opportunity, all but two of the judges opted for a non-custodial disposal. The disposals selected included conditional discharge, suspended sentence, curfew order, community service and probation. One judge opted for a custodial sentence of nine months. 6. The purpose of Davis and Tyrer's study was to compare how judges sentenced with the advice provided in the Sentencing Advisory Panel's guideline on sentencing burglary cases and the Court of Appeal's subsequent guideline in McInery and Keating. As such the researchers made little comment on the issue of consistency between sentencers and courts. It is apparent from the findings presented, however, that there is wide variation between individual judges in the length of custodial sentences imposed and between sentencers in different courts. 7. In an earlier report on the pilot exercise for this study Davies et al. (2002)15 explored the views of a small number of judges in England and Wales on the purposes of sentencing and the process of sentencing offenders convicted of domestic burglary. These views were obtained during the course of a focus group discussion and revealed that the judges within a single Crown Court Centre had widely varying views on the purpose of sentencing burglars and this led to variations in the degree of importance attached to each of the characteristics of a case. While the judges were clear that their primary objective was to pass 'just sentences', the researchers concluded that without a consensus on rankings of seriousness and judgements about desert and the purpose of sentencing, 'the idea of a just sentence becomes difficult to demonstrate'. 8. Recent research by Tarling16 compared the use of different types of sentences in 25 magistrates courts in England and Wales in 1975 and 2000. Focusing on males aged over 21 years sentenced in courts that dealt with in excess of 200 such offenders per annum, the research showed considerable variation between the 25 courts in the use of different disposals. For example, in 1975 the use of the fine ranged from a low of 46% of cases in one court to a high of 76.1% in another, while the use of immediate imprisonment ranged from a low of 3.1% of cases to a high of 19.1%. By 2000 these percentages had changed, for fines to a low of 21% of cases to a high of 50.6% and for immediate imprisonment from a low of 8.6% of cases to a high of 27.7%. Sentencing practices were also examined for two particular types of offences, burglary and shoplifting. For burglary there was a difference of 32% between those courts using custodial sentences least and most frequently, while for shoplifting the difference was 22%. 9. The researcher concludes that while patterns of sentencing in the magistrates courts have changed over 25 years, in the sense that the use of community sentences and imprisonment have both increased, while the use of fines, suspended sentences and conditional discharge have declined, wide variations between courts in the extent to which they use each type of disposal remain. The researcher points out that this is despite the advent since 1989 of detailed Magistrate's Association Sentencing Guidelines for almost every offence that comes within their jurisdiction. He notes that interviews with magistrates and clerks for the original 1975 study revealed that 'the courts were really only interested in maintaining consistency within their own practice' and that no-one interviewed on behalf of a court 'claimed that any attempt was made to achieve consistency with its neighbours or with courts over a wider area or with what was thought to be national practice.' The researcher suggests that the apparent lack of impact of the sentencing guidelines on consistency may be due to the fact that conformity with the guidelines is not monitored in any way and the courts are not held accountable for adhering to the guidelines. This contrasts with most states in the US where guidelines are in operation where sentencers have to submit in writing their reasons for deviating from a guideline. 10. Moxon et al. undertook a study in the early 1990s of the use of compensation orders in the magistrates' courts in England and Wales.17 As well as looking at the relative use of orders for different types of offences, they undertook a sentencing exercise with magistrates at seven courts. The magistrates were given four case studies to consider privately before coming together as 'benches' of two or three to discuss sentence. They were asked to say what sentence they would have passed, whether or not they would have awarded compensation and what factors influenced their decision. Forty-four benches participated in the exercise. 11. In case study 1, which dealt with physical assault, all the benches indicated that they would have awarded compensation but the amounts awarded ranged from 150 to 1,100. Case study 2 dealt with the taking of a motor vehicle without consent and 34 of the benches indicated that they would have awarded compensation, while ten would not. The sums awarded in this case ranged from 100 to 500 and discussions with the sentencers revealed that they found it difficult to determine an appropriate level of compensation in the absence of evidence of the value of the damage caused. Case study 3 involved the theft of items from a locker. All of the benches indicated that they would have awarded compensation ranging from 50 to 260 but discussion revealed that there was no consensus about how to deal with compensation in cases where the loss was primarily of sentimental value. In case study 4, which dealt with assault causing severe stress, 37 of the benches indicated that they would have awarded compensation, while 7 would not. Awards ranged from 100 to 1,250 but discussion revealed that sentencers found it very difficult to asses the level of compensation that should be awarded for the stress caused as opposed to the physical injury. The researchers concluded that the wide variation in awards reflects the problems that arise when sentencers have little to inform their decisions by way of precedence or other guidance. They suggested that uniformity in decisions on whether to award compensation 'is probably not attainable' but that there was scope for encouraging a more consistent approach. 12. Hough et al. (2003) undertook a study of the decisions involved in sending offenders to prison.18 Sentencing decisions were explored in 11 focus groups with a total of 80 magistrates and 4 cases which lay on the 'cusp' between custody and community penalties were discussed in 48 one-to-one interviews with Crown Court judges, recorders and district judges. The one-to-one interviews revealed that in 'cusp' cases that resulted in custody, sentencers' decisions were based on two considerations: Offence seriousness and/or Offender's previous convictions and failure to respond to previous sentences. 13. In 'cusp' cases that resulted in a non-custodial disposal, a much wider range of factors were regarded as being important in the decision. In particular, issues relating to the offender's personal circumstances, such as their family responsibilities and employment status, and the offender's response to prosecution - such as whether the offender demonstrated genuine remorse and had co-operated with the prosecution process - were felt to be particularly important. The researchers concluded that in general, sentencers 'first make a decision about whether or not an offence, in its own terms, merits custody' and if it does, 'will then consider whether personal mitigation can pull it down from custody to a community sentence'. However, the magistrates in one of the focus groups indicated that they followed a different approach - their decisions about custody were made only with regard to the offence itself and not with regard to its aggravating or mitigating features. Mitigating features relating to the offender could be used to reduce the length of a custodial sentence but did not, they said, alter a decision to impose a custodial sentence. Study of the sentences imposed in the court revealed that this particular bench was above average in its use of custody. The researchers concluded from their discussions with sentencers that despite the presence of Magistrates' Association guidelines and sentencing guidelines, sentencing is a value-laden process where great emphasis is placed on personal characteristics, making the process highly subjective. They further conclude that "The inevitable subjectivity of the process of assessing hope or failure can help to explain sharp inconsistencies in sentencing practice between sentencers ." (Hough et al. 2003 pp. 42) Read More