The Disunity of Employment Law and Sentencing
| DOI | 10.1350/jcla.68.4.329.36521 |
| Author | Mirko Bagaric |
| Published date | 01 August 2004 |
| Date | 01 August 2004 |
| Subject Matter | Article |
The Disunity of Employment Law
and Sentencing
Professor Mirko Bagaric*
Abstract This article discusses the lack of integration between criminal
sanctions and employment deprivations (in the form of being dismissed
from employment or disqualified from working in certain industries).
Offenders who are employed in certain industries, especially the pro-
fessions, often suffer a far greater net punishment upon being found guilty
of a criminal offence than other offenders, thereby violating the principle
of proportionality and the (related) principle of equality in the impact of
sanctions. The reason that such a situation has developed is because
criminal sanctions and employment deprivations have evolved from dif-
ferent streams of jurisprudence. This article argues that sentencers should
impose a ‘net’ sanction for a criminal offence, thereby merging these
streams of jurisprudence. This would require courts to be vested with the
power to suspend or disqualify people from being employed in certain
occupations. The legal analysis in this article focuses on case and statutory
law in Australia, however, the same broad principles apply in all common
law jurisdictions, including the UK. Hence, the reform proposals suggested
in this article are relevant throughout the common law world.
‘As a matter of principle my view is that once a person has paid their
debt to society, as the old expression goes, and done their time, then
they should be able to live a normal life.’
Prime Minister, John Howard, commenting on the eligibility of jailed former
One Nation leader Pauline Hanson to stand for Parliament at the expiration of
her three-year jail term for electoral fraud1
‘A person’s employment is usually one of the most important things
in his or her life. It gives not only a livelihood but an occupation, an
identity and a sense of self-esteem.’
Johnson (AP) v Unisys Ltd [2001] 2 WLR 1076 at [35]
1. Introduction
There are a range of social and other disadvantages which are con-
sequent upon a conviction or a finding of guilt for a criminal offence.
First, there is a sentence imposed by the court. In Australia this ranges
from imprisonment to a ‘good telling off’ in the form of a common law
bond—or the statutory equivalent thereto. The other main type of
disadvantage is some form of employment deprivation2—for example,
* Head of Deakin Law School.
1 A. Crabb, ‘Hanson Could Stand Again: Howard’, The Age, 6 September 2003, 6.
Hanson’s conviction and sentence were overturned on appeal to the Queensland
Court of Criminal Appeal.
2 There is also the indirect sanction in the form of the censure that an offender may
receive from family, friends, associates or the wider community. The extent of this
sanction varies markedly according to such matters as the social and personal
antecedents of the offender and the offence in question. It is not possible to
regulate this form of sanction effectively and it will not be considered further in this
application.
329
in the form of being dismissed or suspended from employment or being
ineligible to apply for certain jobs.3
(a) Net sentence not possible within existing framework
At the time of sentencing, the judge or magistrate is often unaware of
the nature or severity of the employment deprivation that may be
experienced4in addition to the criminal sanction that is imposed. Hence
a ‘net sentence’ is not imposed. Even in circumstances where the
sentencer is aware that a finding of guilt is likely to result in dismissal or
suspension from employment, the sentencer cannot know for certain
the exact nature of the employment deprivation that will be imposed on
the offender. Moreover, there is no settled legal principle regarding the
relevance of a certain or potential employment deprivation to the ulti-
mate sentence:
The response by the courts has been ambivalent, sometimes decreasing a
sentence to take into account the additional detriment and sometimes
refusing to do so. The cases present no clear pattern.5
(b) Practical illustrations of problem
The gulf between criminal sanctions and employment deprivations
stemming from criminal wrongdoing can potentially result in a sig-
nificant degree of unfairness to offenders who are employed at the time
of sentence or who wish to pursue certain vocations in the future.
Consider, for example, the situation of two offenders who commit the
identical offence of burglary. The offenders are walking past a house and
through an open window see a wallet on a desk, not far from the
window. They jump through the window, take the wallet and run off. At
court the offenders are both convicted and receive a fine in the sum of
$1,000. The offenders are the same age, say 30, and have identical social
and criminal antecedents—assume they are twins—except for one trait:
offender A is a labourer; offender B is a lawyer. The total detriment
suffered by A in these circumstances is no more than the criminal
sanction. Offender B, is however, suspended from practising as a lawyer
for two years. The net loss to B could well run into the hundreds of
thousands of dollars.
The point is perhaps even better illustrated by several recent exam-
ples of high-profile people who have lost their livelihood as a result of
being found guilty of a criminal offence. Former Queensland Chief
Magistrate, Ms Fingleton, was sentenced to 12 months’ jail in June 2003
3For a discussion of these, see R. Fox and A. Freiberg, Sentencing: State and Federal
Offenders, 2nd edn (Oxford University Press: Melbourne, 1999) 470–565.
4 Although often an employer can dismiss an employee prior to the outcome of the
criminal case: see J. B. Capstick, ‘Dismissal for Criminal Offences’ (1978) 75 Law
Society’s Gazette 246–51.
5Fox and Freiberg, above n. 3 at 344—this quote is in the context of other civil
consequences. In addition to loss of employment, such as loss of pension rights,
that occur because of a conviction. See further, N. Walker and N. Padfield,
Sentencing, Theory, Law and Practice (Butterworths: London, 1996) 56. A. West
‘Prospective Loss of Employment as a Factor in Mitigation of Penalty’ (1996) 16
Queensland Lawyer 157–8. See further the discussion in section 3 below.
The Journal of Criminal Law
330
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