Sentencing the Offender
| Date | 01 December 1969 |
| Published date | 01 December 1969 |
| Author | Justice Bright |
| DOI | 10.1177/000486586900200404 |
| Subject Matter | Original articles |
206 AUST. &N.Z. JOURNAL OF CRIMINOLOGY (Dec., 1969): 2, 4
Sentencing the
Offender
His Hon. Mr. JUSTICE BRIGHT·
THE only knowledge of
this
subject
that
I
can
claim comes from
the
read-
ing
and
experience of
the
last
five or six years.
It
is
perhaps
permissible to
speculate
that
those members of
the
South
Australian
Bar
who requested
me to address you were encouraged to do so by
the
hope
that
I
might
thereby
become, to use
the
famous phrase, if
not
wiser somewhat
better
informed. I
must
make it
plain
at
once
that
I
speak
for myself alone
and
not
for my
Bench
as a whole. I have no
authority
whatsoever to express
the
views of my colleagues.
Any urge on my
part
to
venture
opinions on
the
basic philosophy of
punishment
has
long been extinguished.
The
dispute now ranges over
the
whole
theoretical
field
and
extends
not
merely to
the
characterisation
of
various principles to be applied
but
also to
the
question of
the
justifiability
of
punishment
at
all. Professor H. L.
Hart
recently collected aseries of
his
essays on
Punishment
and
Responsibility. I
must
acknowledge my
indebted-
ness to
that
book, for
the
author
does something which is a necessary
pre-
liminary to
any
modern
study
of a subject: he exposes
the
errors in some
earlier theories as well as
stating
views of his own. He also makes
it
very
obvious
that
there
is no simple solution to problems of
punishment.
If
I
may
say
so with respect, it appears to me
that
some views on
punishment
are
only capable of being applied
either
in communities in
which
the
need
for
punishment
(however
the
punishment
is characterised
and
however
the
need is created)
has
disappeared, or alternatively
in
com-
munities of philosophers whose
understanding
and
social sufficiency
are
such as to cause
them
to follow,
without
resistance, acourse which in
the
particular
context
society
regards
as being'
the
right
course. This observa-
tion is
intended
to emphasise
the
fact
that
offenders
are
not
units
or
ciphers
but
persons, with personal disturbances, personal insufficiencies,
personal idiosyncracies, personal
antipathies
and
personal
areas
of diminish-
ed comprehension. They do
not
all
have
the
same responses to
the
same
stimuli,
painful
or otherwise.
They
do not, in
particular,
all react,
let
alone
react
in
the
same
way, to
enthusiasm
or encouragement, or to
punishment
of various sorts.
They
do
not
all apply to themselves
the
standards
of
reason
and
prudence
which awell-adjusted criminologist would
find
easy
to recommend to
other
people,
and
even possible to
apply
to himself. To
some
extent,
I believe,
many
offenders measure a
sentence
not
by absolute
standards
but
relatively to
the
kinds of
the
sentence which
they
believe to
be unusual. At
the
turn
of
the
19th
century
in Australia
an
offender who
*Supreme Court of South Australia.
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