Why sentence? Comparing the views of jurors, judges and the legislature on the purposes of sentencing in Victoria, Australia
| Author | Julia Davis,Caroline Spiranovic,Kate Warner,Helen Cockburn,Arie Freiberg |
| DOI | 10.1177/1748895817738557 |
| Published date | 01 February 2019 |
| Date | 01 February 2019 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895817738557
Criminology & Criminal Justice
2019, Vol. 19(1) 26 –44
© The Author(s) 2017
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DOI: 10.1177/1748895817738557
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Why sentence? Comparing
the views of jurors, judges
and the legislature on the
purposes of sentencing in
Victoria, Australia
Kate Warner
University of Tasmania, Australia
Julia Davis
University of South Australia, Australia
Caroline Spiranovic
University of Tasmania, Australia
Helen Cockburn
University of Tasmania, Australia
Arie Freiberg
Monash University, Australia
Abstract
In recent times, parliaments have introduced legislation directing judges to take defined purposes into
account when sentencing. At the same time, judges and politicians also acknowledge that sentencing
should vindicate the values of the community. This article compares the views on the purposes of
sentencing of three major participants in the criminal justice system: legislators who pass sentencing
statutes, judges who impose and justify sentences and jurors who represent the community. A
total of 987 Australian jurors in the Victorian Jury Sentencing Study (2013–2015) were asked to
Corresponding author:
Caroline Spiranovic, Faculty of Law, University of Tasmania, Private Bag 89, Hobart, Tasmania 7001,
Australia.
Email: caroline.spiranovic@utas.edu.au
738557CRJ0010.1177/1748895817738557Criminology & Criminal JusticeWarner et al.
research-article2017
Article
Warner et al. 27
sentence the offender in their trial and to choose the purpose that best justified the sentence. The
judges’ sentencing remarks were coded and the results were compared with the jurors’ surveys.
The research shows that, in this jurisdiction, the views of the judges, the jurors and the legislators
are not always well aligned. Judges relied on general deterrence much more than jurors and jurors
selected incapacitation as the primary purpose in only about a fifth of ‘serious offender’ cases where
parliament has provided that community protection must be the principal purpose.
Keywords
Judges, juries, public opinion, sentencing purposes
Modern penal policy recognizes that sentencing is no longer just a matter between the
state and the offender but is now something that legitimately concerns both individual
victims and the wider community as well (Freiberg, 2003). Taking community views on
sentencing into account is generally justified on the grounds that courts are part of the
society that they serve; and the Victorian Court of Appeal has recently emphasized the
need for courts to ‘vindicate the properly informed values of the community’ when they
exercise the power to punish (WCB v The Queen, 2010: [34]). It has also been argued that
responding to community views will enhance the legitimacy of the law and promote
compliance and co-operation with criminal justice agencies. While the extent to which
perceptions of legitimacy are likely to have demonstrable consequences is unclear, it can
be conceded that some minimal level of confidence in sentencing is necessary and that
one way of promoting it is to ensure some concordance between community views and
sentencing practices (Roberts, 2014: 233). Recognizing community views can also
address the democratic deficit that arises if there is any great disparity between parlia-
ments’ or courts’ actions and the attitudes, opinions or feelings of the public.
If, as many now accept, sentencing is not simply a punitive process but is also a com-
municative process, it follows that some insight into public views about sentencing pur-
poses is needed. Roberts has suggested that statutory sentencing purposes might be
determined in part to reflect relative levels of community support. For example, if the
public is adamantly opposed to retributivism, it would make little sense to privilege this
perspective (Roberts, 2014: 229). Likewise, if the public is more focused on the expres-
sive purposes of just punishment and denunciation, there is little point in prioritizing
instrumental reasons like community protection or general deterrence if the purported
reason for doing so is to satisfy community views.
Several studies have explored public preferences for sentencing purposes in
Canada (Roberts et al., 2007), England and Wales (Roberts et al., 2009), New Zealand
(Paulin et al., 2003) and Australia (Spiranovic et al., 2012). An earlier Victorian
study analysed the views of a random sample of 300 Victorians about the purposes
of sentencing and found that their ‘complex and nuanced’ views varied according to
the different type of offender and offence; the respondents, like judicial officers,
adopted an individualized approach to sentencing and tailored the principal purpose
to the circumstances of the specific case (Gelb, 2011: 1). This article builds on the
earlier studies and contributes to the goal of ascertaining community views by
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