There are few campaigns run by newspaper polemicists that are more purely poisonous than the cynical attempt to exploit community ignorance on the subject of criminal sentencing for political or commercial gain.

The technique, perfected by the less reputable media outlets (particularly those owned by News Ltd), is as follows:

  • They emphasise the most sensational (ie unusual and outrageous) cases. (Thereby skewing the public’s impression of the more common circumstances of these offences).
  • They report aggravating factors (the aspects of the particular criminal behaviour that push it towards the higher end of the sentencing scale) and almost completely ignore the mitigating factors (those that push it down the scale), despite both being essential considerations for a sentencing judge. (With obvious consequences; readers only hear one side of the story, where the Judge hears both.)
  • When reporting a sentence they often completely ignore time already served.
  • They report only the MINIMUM sentence imposed and ignore the total.
  • They report suspended sentences as no punishment at all. (Ask a Hun reader what a suspended sentence means.)
  • In their reporting, they deliberately use the most emotive words available, and report facts with a slant to make the defendant’s conduct seem even worse than it really was.
  • They editorialise and bang on about sentences that are lighter than the norm, but quickly forget those that are tougher than the norm.

The upshot of which is, of course, that people who rely on such outlets for “news” inevitably develop an erroneous impression that courts are “soft” on criminals. This impression can be quickly shown for the lie that it is by means of, for example, when the Sentencing Advisory Council sits down random members of the public and runs them through a trial, hearing all the evidence, and sees what sentences they’d impose. The answer, last time this was done? The public, when exposed to all the facts, are LESS punitive than the real judges. And sentencing trends since then have been towards longer sentences.

  • In the abstract, the public thinks that sentences are too lenient
  • In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
  • People have very little accurate knowledge of crime and the criminal justice system
  • The mass media is the primary source of information on crime and justice issues

  • When people are given more information, their levels of punitiveness drop dramatically
  • People with previous experiences of crime victimisation are no more punitive than the general community
  • People with high levels of fear of crime are more likely to be punitive
  • Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
  • Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
  • Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
  • Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
  • Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture.

In other words, it’s only ignorance of the facts – and a sustained campaign of misinformation by certain people – that makes the public think our judges are “soft” on criminals. And, since the media aren’t interested in THOSE facts, let’s hope that the SAC repeat this research at regular intervals, so that decision makers have a REAL gauge of the relationship between judicial outcomes and public expectations.

Keep the above in mind when reading this contemptible and dangerous spiel in today’s Hun by Alan Howe:

THE problem is that most of us reckon sentences are too often too light.

Embedded in the Sentencing Act is the line that perpetuates it. Here’s the solution.

Alan is quite right that there is a problem if “most of us reckon sentences are too often too light” – but that’s not because they actually are too light. That’s because he and his colleagues have worked hard to create that impression.

And that second sentence is a bit odd, since Howe never specifies what line of the Act he means, but no matter – this article is not about rational and fair discussion about the specifics of the law. It’s about shameless rabble-rousing.

First, he asserts that he’s on the side of “the people” (my bold in the following quote):

I reckon the judiciary has a magisterial disdain for what you and I believe is justice…

It’s time to help judges see things our way

But our judges and magistrates go easy on lawbreakers and, I believe, are failing us with sentences that do not reflect community attitudes and that too often are well short of what their authors expected…

Those precedents further damage our faith in the system because they become part of “current sentencing practices”…

…the contours of common thought, the great aggregates of opinion held by the society in which they work.

As you’ve seen above, Alan’s appeals to “popular opinion” are pretty empty. And check out the arrogance in the Hun doing everything in its power to warp public opinion on an issue and then having its writers turn around and tell readers that that must agree with them. Hey, you’ve been reading our shamelessly one-sided polemic for years: surely you agree with us by now!

Second, he skews the evidence, listing a set of unrepresentative and half-reported cases, as is his newspaper’s habit, quickly running through the parts that sound the worst and skipping over any kind of explanation.

Too often, criminals receive quite light sentences, appeal them, and are further rewarded with even lighter sentences. The Sunday Herald Sun reported earlier this month that our Court of Appeals had slashed 116 years of jail time off killers, rapists and drug dealers in the past 16 months.

Those precedents further damage our faith in the system because they become part of “current sentencing practices”.

Hang on – if sentences are being corrected DOWNWARDS by higher courts, then doesn’t that mean the original magistrates and lower court judges are being too harsh? Shh! Don’t think about that! Remember, you’re angry about criminal-loving judges who love criminals and want to have their babies!

Third: he proposes a half-baked “solution”. After reinforcing the mistaken impression he and his paper have worked hard to create in readers’ minds, Alan then lists a set of frankly appalling measures to “fix” the problem he and his ilk have invented:

I would like to see every judge and magistrate’s performance recorded and constantly updated. We should be able to look up their sentencing records. Legal fraternity insiders know the hanging judges and those who go easy – so why can’t we?

Unless those reports also included reference to the judgments and sentencing submissions made in those cases, then what would the mere figures tell us? Simply hearing that someone got “five years” doesn’t tell you anything without knowing why. And the idea of judges being concerned with their “record” when sentencing an individual rather than the facts of the specific case is so repugnant to the idea of justice it’s difficult to know how anyone could take such an idea seriously if they thought about it for more than a few seconds. People should be jailed because the stats of the judge they’ve come before are looking a bit too lenient that month?

I suppose Alan would like us to take the next step and have elected judges, so we can recreate the US system and have people given ever tougher punishments regardless of the justice of the situation, simply so that they can appear “tough” to the ill-informed?

Because of course one thing that Victorians have been crying out for is for our justice system to be more like America’s…

Why doesn’t every sentencing decision record what percentage of the possible maximum has just been delivered? It would shock many people to know how infrequently a robust sentence is handed down.

Because anyone who wants to check can look it up?

And since when is a “robust sentence” determined by the maximum possible? The maximum possible is for people who repeat offend. Or whose offence is a particularly appalling example of the crime in question. Since that’s not the case in most circumstances, defining the punishment by reference solely to the maximum possible would give the public the sort of erroneous impression about sentencing that the Hun works so hard to create. So I see why Alan wants it – but his paper already does such a good job of using this technique to mislead, does he really need judicial reports to do the same?

We have a right to know the judges whose decisions are most regularly challenged in the Appeals Court. We have a right to know which judges’ have the most decision overturned.

You mean, based on what you said earlier, the unnecessarily tough judges and magistrates whose sentences keep being reviewed downwards?

Back to Alan’s suggestions for how to fix things:

LET’S have no time off for good behaviour. Add time for bad behaviour, and plenty of it.

How would that work? Someone receives a sentence for a crime, and then if we think they’re “bad” – not having committed a new offence, just been a dickhead – then we get to add more time? Despite having not committed a new crime?

How would that even work?

We need an Operation Beacon for the Victorian judiciary in which every magistrate and judge is “retrained” – familiarised once more with the contours of common thought, the great aggregates of opinion held by the society in which they work.

Judicial retraining to make sure they conform to the will of “The People”? Where did Alan get that idea from? Who’s going to run this “retraining”? Who’s going to define this “common thought”?

If anyone needs retraining based on their understanding of sentencing principles, it’s not the judges, Alan.

Howe also complains about (and even carelessly demands an end to) various sentencing options developed over centuries of vigorous legal debate and experience, without even a cursory attempt to help his readers understand them:

Let’s put an end to concurrent sentences. They are not sentences at all.

And, from earlier:

MANY others get community-based orders. Gee, I can feel that soggy lettuce thrashing the backs of my legs right now.

And:

Another one in four receives a “wholly suspended sentence” – ie, they walk.

Does Alan even expend a sentence explaining the rationale behind suspended sentences, what CBOs involve, or when concurrency is applied? Of course not.

The sad thing is that the same people who read the criminal reports in the Hun and don’t ask even basic questions (like – hang on, that doesn’t sound right. Why did the Judge do that? And why doesn’t the Hun tell me the Judge’s reasons?) will take Howe’s rant seriously and demand terrible, dangerous, damaging action from cowardly and populist politicians. The upshot of which will be, if not the implementation of any of Howe’s demented suggestions, more “mandatory minimum” sentencing sections in criminal legislation (with all the commensurate justice you get from a punishment being determined in advance by politicians who’ve heard not a word of the case rather than an experienced, qualified human being who can judge a case on its merits).

Which is a serious blow to justice.

Now, some might say – well of course you’d say that, you’re a barrister! Of course you’d want softer outcomes for your clients! To which I’d respond: the only interest I have in this is justice being done, and I see the injustices that follow to real people when magistrates or judges are influenced by these campaigns. Or when their powers have been stripped from them by parliaments that could not conceivably predict the case that is now in front of them. (And second – the charge of self-interest doesn’t make sense: if I were advocating for what does defence barristers’ wallets the most help, I’d be asking for an even tougher sentencing regime all round, because, at greater risk people charged with crimes would be prepared to pay more for a defence!)

Finally, Alan Howe is right on one thing: judges aren’t perfect. Sometimes they’ll err on one side or the other – but the system is already designed to fix that. If the judge or magistrate gets it wrong, the prosecution or defence will appeal. The matter will be assessed anew by a fresh set of qualified eyes that have seen all manner of cases and know how to fit this particular matter fairly within the scale. They might, conceivably, get it wrong too – but surely it’s the height of foolishness for us to condemn them based solely on such irredeemably slanted and ridiculously incomplete material as provided by newspapers like the Herald Sun.

To the Hun readers who are seriously concerned about criminal justice in this state, I say this – don’t just believe the tripe you’re served by media organisations seeking only to outrage and provoke you. Ask questions. Read judgments. Sit in a court. Think about the sentencing guidelines we’ve developed before demanding we throw them out. And before condemning a judge for a sentence, please at least make sure you’ve got at least a preliminary understanding of the reasons behind it by reading the judgment first. These people aren’t mad. They don’t want our streets to be “awash with crime”. They genuinely want to see justice done.

Just like you do.

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