Models of Understanding Criminal Behaviour and the Sentencing Process: A Place for Criminological Theory?
| Author | Richard Edney |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| DOI | 10.1350/jcla.2006.70.3.247 |
| Subject Matter | Article |
Models of Understanding
Criminal Behaviour and the
Sentencing Process: A Place for
Criminological Theory?
Richard Edney*
Abstract The method by which a sentencing court understands the
reasons for the commission of a criminal offence is crucial to the framing
of the ultimate disposition imposed in all of the circumstances of the
offence and the offender. Under Australian criminal law the insights of
criminology are rarely, if ever, used in the discharge of the sentencing
function. In particular, theories of crime causation evident in schools of
criminological thought are not relied upon even though ostensibly such
theories would appear to have a degree of relevance to the sentencing
task. In this article, a short sketch of contemporary criminological theory
is provided. This is followed by a survey of the use of criminological theory
under Australian criminal law and what role, if any, it plays in contempo-
rary criminal justice administration. Finally, consideration is given as to
whether or not criminological theory would be of assistance in the dis-
charge of the sentencing task in relation to not only understanding the
reasons for the commission of the offence by the offender, but also in the
determination of the appropriate sanction.
‘The process by which a court arrives at a sentence to be imposed on an
offender has just as much significance for the offender as the process by
which guilt or innocence is determined. Unless the legislature has limited
the sentencing discretion, a judge passing sentence on an offender must
decide not only what type of penalty will be exacted but also how large that
penalty should be. Those decisions will be very much affected by the factual
basis from which the judge proceeds. In particular, the judge’s conclusions
about what the offender did and about the history and other personal cir-
cumstances of the offender will be very important.’1
The method by which a court understands the reasons for the commis-
sion of a criminal offence is crucial to the framing of the ultimate
disposition imposed in all the circumstances of the offence and the
offender. As the above quote from the High Court of Australia case of
Olbrich makes explicit, a sentencing court needs to make certain findings
concerning the offender to impose a sentence that is proper in all the
circumstances. Notwithstanding the importance of such an assessment
of the reasons that have contributed—or caused—the offending behav-
iour to the sentencing process, insights of criminological theory are
* Senior Lecturer in Law, Deakin University Law School; e-mail
richard.edney@deakin.edu.au.
This article was presented as a paper to the 10th Biennial North Territory
Criminal Lawyers Conference held on 4–8 July 2005 at Sanur, Indonesia. My
thanks to David Ross QC for his insightful comments on an earlier draft. Of course,
all errors and omissions are mine.
1R v Olbrich (1999) 199 CLR 270 at 274, per Gleeson CJ, Gaudron, Hayne and
Callinan JJ.
247
rarely used in the sentencing hearing. This is somewhat unusual, given
that one of the ostensible aims of criminology2is to isolate in a scientific
manner the causal reasons for criminal behaviour within a society.
Moreover, particular findings on the cause of the offending behaviour
may be significant for the nature and type of sentence imposed and what
particular ends of sentencing ought to be preferred.2
What follows is a consideration of the reasons for the omission of
criminological insights during sentencing under Australian criminal law.
I will also consider the broader question as to what, if any, role crimi-
nology ought to play in the discharge of the sentencing function. To do
so I first propose to provide a short primer on the intellectual history of
criminology. Part of that survey will give an overview of some major
schools of criminological theory. I will then consider the role of crimi-
nology under Australian criminal law and how it has been used—or
neglected—by sentencing courts. I note at the outset that the role of
criminology at the sentencing stage of criminal proceedings has been
minimal and there appears to be reluctance by courts to use the insights
of criminology in relation to the issue of crime causation. This does not
mean however that a sentencing court does not adopt or rely upon a
particular model of criminal behaviour when sentencing an offender.
The sentencing court must necessarily form some idea as to the reasons
for the criminal behaviour in a particular case that will significantly
affect the nature and form of sanction imposed. The implication of the
interpretive need by the court to do this will be discussed in the latter
2 On the emergence of the use of the term criminology, see P. Beirne, Inventing
Criminology: Essays in the Rise of Homo Criminalis (Albany State University of New
York Press: 1993) who notes, at 3:
There is no recorded instance of the term criminology ever having been used
before the final quarter of the nineteenth century. According to a consensus of
opinion which, has persisted since the early 1890s, the term was invented in
1889 by the anthropologist, Paul Topinard, the Director of the Ecole
Anthropologie in Paris.
3 I note that judicial officers under Australian criminal law—excepting the anomaly
of mandatory sentencing—have substantial discretion in determining the nature
and extent of the penalty imposed. Legislatures have done little to either make
sentencing transparent or to impose a formula on judicial officers engaged in that
exercise. The cornerstone of the sentencing approach under Australian criminal law
is that of the ‘instinctive synthesis’. In short, the method to reach a sentence in a
particular case is to consider all matters related to the circumstances of the offence
and offender and to ‘synthesise’ those matters into an appropriate sentence. This
phrase is taken from the majority dicta in R vWilliscroft [1975] VR 292 at 300, per
Adam and Crockett JJ. In recent years there has been some move to disclose more
clearly the reasoning process involved in sentencing. This has been suggested by
means of either making the approach more transparent through the provision of
more comprehensive and cogent reasons or though the adoption of what is termed
the ‘two stage’ approach to sentencing. See generally M. Bagaric and R. Edney,
‘What’s Instinct Got to Do With It? A Blueprint for a Coherent Approach to
Punishing Criminals’ (2003) 27 Criminal Law Journal 119. In the recent decision of
the High Court of Australia in R v Makaranian [2005] HCA 25 (18 May 2005) a
majority of the court confirmed the appropriateness of the instinctive synthesis
approach to sentencing. In relation to sentencing ends, or objectives, the legislature
typically provides a list of ‘objectives’ or ‘purposes’ of sentencing that invariably
include deterrence and rehabilitation. For an example, see the Sentencing Act 1991
(Vic), s. 5(1).
The Journal of Criminal Law
248
To continue reading
Request your trial