Sentencing Act of Victoria: Deterrence and Rehabilitation Purposes

This report provides a comprehensive analysis of sentencing purposes as outlined in the Sentencing Act of Victoria (1991). It delves into the principles of parsimony, proportionality, parity, and totality, which form the basis of sentencing decisions. The report focuses on two key purposes: deterrence and rehabilitation, examining their theoretical underpinnings and practical applications. Deterrence, rooted in utilitarianism, aims to dissuade offenders and others from committing crimes through punishment. The report explores the views of Jeremy Bentham, Glanville Williams, and Salmond on deterrence, including its limitations. Rehabilitation, influenced by the welfare state, emphasizes reforming offenders through societal intervention. The report discusses the shift towards reformative approaches, contrasting them with deterrence. It references the views of Salmond, Arnold Loeway, and Macklin Fleming regarding the challenges and failures of rehabilitation. The report also includes a case study of Regina v Ivan Robert Milat [2005] NSWSC 920, illustrating the application of deterrent principles, and contrasts this with the rehabilitative approach. The conclusion summarizes the comparative analysis of the two purposes and their application in the legal context.

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Introduction
Currently, legislation has been introduced by the parliaments, which shall direct the
judges in considering defined purposes during the time of sentencing. It has also been
acknowledged by the politicians and the judges that sentencing should support and justify the
morals and standards regarding the community. According to Friedberg, it has been recognized
by the modern penal policy that presently, sentencing is no longer considered to be an issue only
in connection to the offender and the state, it is considered to be something, which reasonably
and justifiably concerns both the wider or extensive community as well as the individual victims
(Maxwell 2017). Considering the views of the community in relation to sentencing is regarded as
justified on the basis that the courts are considered to be the fragment of the civilization that they
aid, attend and serve. In the case of W C B v The Queen [2010] VSCA 230, it has been
mentioned by the Victorian Court of Appeal that any particular court should support and justify
the morals and standards regarding the community that are adequately informed, during the time
when such court may implement its command and authority to provide punishment. This paper
discusses the purposes regarding sentencing as provided in section 5 of Sentencing Act of
Victoria enforced in the year 1991, and provides a critical analysis relating to two such purposes
(Warner, Davis and Cockburn 2017).
Sentencing Principles and Purposes
Principles
There are certain sentencing principles, which have developed with the help of decisions
forwarded by the courts and the legislations as per the common law. These principles act as the

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basis in relation to the sentencing decisions. Following are the various principles relating to
sentencing:-
 Parsimony: The severity of the sentence should be no more than what is actually needed
in order to fulfill the purposes regarding sentencing.
 Proportionality: There should be an adequate proportion in relation to the overall
punishment and the seriousness regarding the offending conduct.
 Parity: Similar offences should be dealt with similar sentences in relation to offenders in
similar situations.
 Totality: In a situation in which an offender may serve sentences that may be more than
one, then the complete sentence should be appropriate, fair, just and impartial in
connection to the complete offending conduct (Fellows and Chong 2016).
Purposes
Sub-section 1 of section 5 as provided in the Sentencing Act of the year 1991 forwards the
purposes in relation to sentencing in the state of Victoria. Following are the purposes:-
 Just punishment: The punishment in relation to the offender should be just in every
situations.
 Deterrence: To dissuade and discourage the offender, also known as specific deterrence,
or other individuals, also known as general deterrence, from doing any crime of same or
similar nature.
 Rehabilitation: Conditions should be set by the court, which shall enable the
rehabilitation regarding the offender.

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 Denunciation: The conduct of the offender should be denounced, censured and
condemned.
 Community Protection: The community should be protected and safeguarded from the
offender.
 An amalgamation regarding two or more of the purposes mentioned above (Oleson
2017).
Critical Study of Deterrent and Rehabilitative Purposes
Deterrence
The concept or notion of deterrence is in relation to the utility theory regarding
punishment. It is believed by utilitarian that punishment should be considered to be ‘means to an
end’. As per this theory, the offenders should be punished in order to deter, dissuade or
discourage any kind of wrongdoing in the future. Jeremy Bentham is regarded as the founder of
the concept of utilitarianism and he is also regarded as the creator of the utility theory in relation
to punishment (Daly and Sarre 2016).
According to the utility theory, prevention or reduction in relation to crime should be the
definitive objective of punishment. As per a utilitarian, one should always look forward, and
never backward, while delivering a punishment. Deterrent theory supports the action of
‘incapacitation’, which means the act that forbids the power to commit any kind of injury.
According to Bentham, fear and distress should be the objective in relation to any punishment.
Bentham even stated that any particular criminal may be deprived of the power to commit any
kind of injury, by awarding capital punishment or death sentences to such offender. Jeremy
Bentham treats the offences that has been already been committed as actions performed in the

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past, and such actions should be utilized as opportunity to provide punishment to the offenders in
a manner that in the future the offences shall not be committed. According Glanville Williams,
deterrence should be the ultimate objective regarding any punishment. However, according to
Salmond, imprisonment, if considered to be a deterrent factor, shall able to provide only a
temporary relief, that is, for the time period when the criminal is detained in the prison, because
the motive in relation to a crime is not possible to be destructed by the factor of fear. As per
Salmond, it is only the thought that punishment would be able to deter the wrongdoers, although
in actuality the criminals are hardened by punishment because after a while when the criminals
get accustomed and habituated to the punishment, then the purpose of deterrence gets defeated in
relation to such wrongdoers (Palmer, de Lint and Dalton 2016).
Rehabilitation
The objective in connection to the punishment and the process relating to punishment has
gone through several alterations and modifications due to the concept or notion of ‘Welfare
State’. According to Sutherland Edvin H and Cressey Donald, the philosophy regarding law
demands that human touch should be given in relation to the criminal law and the brutalities in
connection to the punishment should be reduced or decreased (Friedrichs, Schoultz and
Jordanoska 2017). As per reformist, a criminal is not born as an offender, but molded by the
societal environment in which he stays, hence, it shall be the accountability of the society to
rehabilitate or reform that offender with the help of suitable methods. According to Salmond, the
increasing understanding and comprehension in relation to the psychological and social causes
regarding crime has resulted in the mounting importance of reformation instead of deterrence
(RABI’U 2016). The trend of reformation relates to less frequent utilization regarding
imprisonment, desertion regarding short sentences and the effort to utilize prison or jail as a

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place for training instead of pure punishment. The reformative trend also includes higher
engagement of parole and probation, and suspended sentences. As per Salmond, the reformative
or rehabilitative approach castoffs and discards the retributive and deterrence elements regarding
punishments and immaculately supports and promotes reformative approach based on the simple
notion that one must cure a wrongdoer, and not kill the wrongdoer. The reformative or the
rehabilitative theory is considered to be the retort or response in connection to the deterrent
theory. It has been stated by reformists that the deterrent theory has failed to consider the
prosperity and well-being in relation to any particular criminal. However, as per Arnold Loeway,
the actual complaint and demurral in connection to the notion of reformation is that this notion
simply fails to work (Dressler 2019). The standards and principles in relation to the notion of
reformative or rehabilitative theory never materialized. This theory has faced repeated failures.
According to Macklin Fleming, the notion of reformation mandates amalgamation of numerous
disciplines and till date no such amalgamation has been successful to deliver (Feeley 2018).
Although, the jurists and the researchers are still making efforts to find the right combination that
shall make the rehabilitative theory productive and fruitful. It has been stated by Mortimer Adler
and Jerome Michael that it has been concluded by the researchers that no recognized, effective or
operative methods in relation to reformation regarding a convicted offender had been verified
and confirmed (Kethineni and Cao 2017). Several such objections has been stated against the
reformative or rehabilitative theory. For instance, as per Macklin Fleming, it has been difficult
for numerous innocent individuals, who respect the law, to get the basic conveniences, and they
forward ethical validation and reasoning in order to provide better amenities inside the prisons. It
has been mentioned by Salmond that the rationality and reasonableness in relation to the

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reformative theory mostly promotes incentives relating to the commitment of the crime instead
of the prevention of the crime (Vanstone 2017).
Example
The case of Regina v Ivan Robert Milat [2005] NSWSC 920 shall be considered to be a
significant case in this regard. In this case, the offender was delivered seven life sentences and it
was stated that the offender shall have no possibility for parole. The appeals of the accused based
on fair trials were dismissed by the courts. It may be said that in this case, the courts applied the
deterrent theory in providing the punishment to the offender considering the heinousness of the
crime. The concept of ‘fair trail’ as forwarded in the case of Dietrich v The Queen [1992] HCA
57, which follows the rehabilitative or reformative theory, was not allowed by the courts in the
Ivan Milat case, because of the seriousness of the crimes committed by the offender
(WALLACE 2017).
Conclusion
In conclusion, it may be said that this paper has discussed the purposes regarding
sentencing as provided in section 5 of Sentencing Act of Victoria enforced in the year 1991, and
has provided a critical analysis relating to two such purposes, namely rehabilitative and deterrent
purposes. A comparative study has been done between the two purposes and a case has been
discussed in the light of the two aforementioned discussed purposes.

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References
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guide to criminology, 5.
Dietrich v The Queen [1992] HCA 57.
Dressler, J., 2019. Arnold Loewy: Scholar, Civil Libertarian, and Mensch: Some Personal
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Feeley, M.M., 2018. How to Think About Criminal Court Reform. BUL Rev., 98, p.673.
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