REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02324.x |
| Published date | 01 March 1971 |
| Date | 01 March 1971 |
REVIEWS
PRINCIPLES
OF
SENTENCING.
By
D.
A.
THOMAS.
Cambridge Studies
in Criminology,
Volume
XXVII.
[London
:
Heineman.
1970.
c
and
350
pp.
(inc.
index).
E4.20.)
To
have studied every decision on sentencing of
the
Court of Crhninal Appeal
and the Court of Appeal between January
1962
and October
1969
and per-
ceived in those decisions the structure of sentencing principles expounded
in
this book, is
a
very considerable imaginative achievement. Whether the result
is an accurate description of the immediate past and present practice of the
court can be checked only by looking at those decisions, many of which are
unreported
or
so
scantily reported
as
to be virtually useless. If this book
does describe accurately the approach of the court, it is indeed remarkable,
as
Mr.
Thomas points
out,
that
so
complex
a
structure of principles has been
developed with such consistency in the virtual absence
of
satisfactory reports
of
decisions on sentencing.
To
the extent, if at all, that
Mr.
Thomas’ analysis
is
not accurate, the publication of it will probably have the effect
of
moulding
the future practice of the court, and indeed of other courts, to the image
so
skilfully presented in this book. This book will surely become an essential
companion for those involved in sentencing in the courts whether as judges,
magistrates
or
advocates, even though
it
is not concerned with the pattern
of sentences imposed at trial courts, and this status
it
will deserve fully on
its own merits and not because it is at present the only work
of
its type on
sentencing. It really is an extremely good book. In any event it describes
and analyses
a
sophisticated model
of
the principles which could govern
appellate review of sentences which deserves consideration in its own right.
Mr.
Thomas’ thesis, which will be well known to those who have followed
his previous writings on sentencing, is that the behaviour of the Court of
Appeal can be understood in terms of the way it deals with two important
decisions, the primary decision which involves
a
choice between deterrent
and individualised measures, and the secondary decision which involves the
development of principles to determine the severity of deterrent measures
or
to choose between individualised measures. In the development of this
thesis
Mr.
Thomas provides
an
extended example of the manner in which
a
type
of
“limiting” retributivisrn might operate in
a
penal system. If
a
deterrent measure is chosen, the actual sentence is fixed initially according
to what is retributively appropriate for
the
offence
:
although this sentence
may be reduced finally
to
take account of creditable factors in the offender’s
previous history it cannot be increased on account of discreditable factors.
An
example, which
has
been the subject
of
some dispute, is of two dFendets,
one who pleads guilty,
the
other not guilty, who are given different sentences.
If the former is given the lighter nentence it may he correct to say that
he
is
being rewarded for pleading guilty but it will not be correct to say that
the other is being penalised for pleading not guilty if his punishment is no
more than the “normal” penalty for his offence.
Mr.
Thomas never makes
it entirely clear exactly what he means by “normal,” and one of
the
characteristics of
a
“limiting” retrihutivism operated in this way
is
that
the more offenders are rewarded for, say, pleading jpilty, the more will
their punishment be fixed according to levels
of
punishment which are not
imposed with sufficient frequency to be
I‘
normal
”
in
any statistical sense.
Therein lies
a
seed of strain. Another problem of this approach, and it
arises also with the concept of consistency suggested by it, is that the
offender who pleaded guilty will probably not be convinced by
it
that he
227
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