Judges Get Creative with Penalties

When it comes to sentencing in NSW, magistrates and judges are fairly limited in what sentences they can hand-down – but this isn’t the case everywhere. Some judges in other countries are known to impose less conventional forms punishments upon defendants.

One particular fan of making the ‘punishment fit the crime’ is US judge Michael Cicconetti, who is well-known for his alternative penalties which are often directly related to the offence committed.

One defendant who appeared before Cicconetti was guilty of drink driving. Unlike in Australia, where the penalty would likely have been a fine and licence disqualification, this defendant was ordered to view at least two dead bodies of people who had been killed in car accidents.

Cicconetti wanted the defendant to see the real consequences of drink driving and hoped that the unusual punishment would drive home the seriousness of 27-year-old Jonathon Tarase’s decision to drive while intoxicated. Tarase narrowly avoided killing a couple after running a stop sign. The couple escaped with minor injuries although their car was written-off.

This unusual penalty was imposed on top of 65 days in prison, although 60 of these days were “suspended”, meaning that Tarase will only spend 5 days in prison as long as he remains on good behaviour for six months. He was also given a $600 fine and prohibited from driving for 15 days.

Cicconetti is also known for shaming defendants by forcing them to wear signs which outline their offending conduct, eg “I stole from Walmart”, and walk the streets for a certain number of hours.

France

Such customised penalties are not limited to the US courts.

In a French case, the Presiding Judge ordered defendant Baptiste Fluzin to post a Twitter apology 466 times after insulting two French politicians in his online blog. The number of apologies was equivalent to the number of views that Fluzin’s offending post received.

What penalties are generally given in NSW?

Legislation sets out maximum fines and terms of imprisonment for many offences.

In driving cases, there may additionally be mandatory licence disqualification periods.

Apart from these penalties, courts in NSW may also impose the following penalties in a range of offences:

• Good behaviour bonds,
• Community service orders,
• Intensive correction orders,
• Home detention, and
• Suspended prison sentences.

When NSW courts determine penalties, they must take into account many factors, including:

• the nature and circumstances of the offence,
• any extenuating factors,
• whether or not a plea of guilty was entered,
• any previous criminal history,
• attitude towards the offence,
• evidence of contrition / remorse,
• likelihood of reoffending,
• any mental health conditions, and so on.

There are a several steps that can be taken to help obtain the best sentencing outcome in court. Arranging character references, undertaking psychological counselling and writing a remorse letter to the judge can all contribute towards getting the most lenient penalty.

Despite the range of sentencing options currently available, there have been calls for more creative penalties to be available to Australian magistrates and judges.

Victims Rights Commissioner, Michael O’Connell, is one who supports such a move. Like many others, O’Connell believes that lengthier prison sentences are not the answer to crime.

His view is that less-orthodox penalties might be more effective in reducing re-offending by getting offenders to understand the impact of their crimes upon the community.

In the context of driving, one of O’Connell’s suggestions is that disqualified drivers should be made to re-earn their licences by participating in programs that confront the realities of dangerous driving, such as the traffic offender program. He believes that this would better than just automatically giving licences back at the end of a disqualification period.

Problems with the ‘creative’ punishments:

Custom-made sentences may seem sensible and appealing, but they are not without their critics. The most common criticism is that they can lead to significant inconsistencies in the nature and severity of penalties imposed for similar offences.

Judge Cicconetti admits that he makes his punishments up on the spot. It is argued that if all judges and magistrates were to do this, there would be substantial unfairness in sentencing outcomes from court to court, and from judge to judge.

To promote consistency in sentencing, the NSW Supreme Court has established “guideline judgments” in order to give magistrates and judges a general idea about appropriate punishments in specific types of cases, including:

• high range drink driving,
• armed robbery,
• dangerous driving,
• drug importation, and
• break and enter.

Guideline judgements promote fairness in the sentencing process, although they limit judicial discretion at the same time.

Of course, there will never be complete uniformity in sentencing – that is impossible because no set of rules could cover every single situation. A certain amount of discretion is desirable to allow courts to consider all relevant circumstances and factors, so that offenders are sentenced according to the gravity of their crimes in the context of their particular circumstances.

Policies such as mandatory sentences can lead to unfair outcomes because offenders can get the same sentence regardless of how serious their particular offending was, and despite the difference in personal factors such as criminal history (or lack thereof), whether there was a plea of guilty, any extenuating circumstances, prospects of rehabilitation etc.

Allowing judges to ‘get creative’ may be desirable in certain circumstances, but the risks of unfairness are certainly there.

Going to court for a traffic offence?

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