Models of punishment vary according to the severity and type of offence. Retribution (punishment), rehabilitation, deterrence (crime prevention) and incapacitation (i.e. imprisonment) are all models of punishments that are represented within criminal justice policies. These different models of punishment assist in the operation of the criminal justice systems (CJS) and its policies such as ‘due process’ and ‘crime control’ that ensure that the CJS proceeds in a fair, equitable and public way. An offender should be given a fair opportunity to be heard, represented and informed of why they were arrested and are going to court, have their case administered fairly and impartially. I observed six cases total from the New South Wales (NSW) local and district courts over two days and overall, my predominant observations of sentences involving imprisonment and/or community corrections programs suggest that the main models of punishment observed in court are retribution, deterrence, and rehabilitation. This report will additionally detail how these types/models of punishment such as retribution/incapacitation, deterrence and rehabilitation observed within court cases assist with principles of justice such as due process and crime control which are examined by the CJS.
The District Court
My personal observations of the sentencings within the NSW district courts explored how serious indictable offences are punished by the CJS. The first observation took place at the NSW District Court and will be referred to as R v Bing; R v Tribbiani (District Court). In the case of R v Bing; R v Tribbiani (District Court), the two defendants (Bing and Tribbiani) were two young men, aged 35 years old and 24 years old respectively, accused of break and enter with intent to commit serious indictable offence. Mr Bing recruited Mr Tribbiani through his former partner to assist in a break and enter of an alleged drug dealer’s house with intent to steal illicit substances to pay back an outlaw motorcycle gang Mr Bing became indebted to. The premises were alarmed when the two defendants “jimmy-opened” the glass sliding door and were subsequently arrested one week later as a result of setting the alarm off. Mr Bing’s defence of a dysfunctional upbringing leading to long-term involvement with illicit drugs (with additional efforts, however, to improve way of life) as per the psychological report that was conducted, reduced his moral culpability. The defence provided additional mitigating reasons for Mr Tribbiani’s involvement and followed as; a dysfunctional upbringing leading to long-term involvement with illicit drugs as per the psychological report, and the exploiting of long-term mental illness (schizophrenia) by Mr Bing’s former partner to engage in criminal behaviours additionally reduced his moral culpability. Aggravating factors for Mr Tribbiani, however, were that he was on two s 9 bonds at the time of the offence. This form of due process ensures the criminal procedure is conducted fairly where it impartially and fairly examines all aspects of the case, the standard of proof and allows the defendants to present their case.
As a result of evidence implicating Mr Bing and Mr Tribbiani of the offence they are accused of, the Judge, after outlining the facts of the case (background of offence and why it was committed), party involvement, mitigating and/or aggravating factors, decision and reasons for decision, convicted both defendants of break and enter with intent to commit serious indictable offence. This response operates under the crime control principle where the judicial system is taking the responsibility of punishing a crime to achieve justice and uphold the law (Walklate 2017). Mr Bing was sentenced to discounted 2 years and 9 months’ imprisonment due to his early guilty plea and Mr Tribbiani was sentenced a discounted 2 years imprisonment due to his early guilty plea. Mr Tribbiani was additionally issued an intensive correction order that ordered he does not engage with any illicit drugs and alcohol and undertake a supervised plan by a Community Corrections officer. The imprisonment sentences imposed to both Mr Bing and Mr Tribbiani show incapacitation and retribution used as the model of punishment in this case where they are punished through incarceration as a form of retribution for their crime. Mr Tribbiani’s intensive corrections order showed the deterrence and rehabilitation model of punishment be used by the CJS as a form of rehabilitation for an ongoing mental condition that contributed to his involvement in criminal acts. Additionally, any breach of these conditions would ensue sanctions, which theoretically as a deterrent for Mr Tribbiani, as those with higher arrests commit less crime, therefore, being deterred (Lochner 2003).
The second observation took place again in the NSW District Court and supports my thesis on how cases within the District Court are finalised predominantly with imprisonment sentences, showing the deterrence and retribution as the main model of punishments being observed. In the case of R v Geller (District Court), the defendant (Mr Geller) was heavily intoxicated and engaged in a domestic argument with his partner ‘Rachel’, that led to the couple’s daughter calling the police. A struggle ensued when three officers arrived to control the situation and Mr Geller became engaged in a physical altercation with the officers, leading to his attempt to reach for one of the officer’s firearms with the intention to use it as a weapon on them. As a result, two officers suffered minor injuries and Mr Geller was charged and pleaded guilty to several offences. The offences consisted of, common assault, assaulting three police officers occasioning actual bodily harm, attempting to use an offensive weapon with intent to commit an indictable offence, and choking a police officer. The role of the judicial system explores the crime control and due process model evidently shown in the judicial process of this case being conducted and prosecuting the individual as a means to uphold the law. As a result, the offender was sentenced to, after a 15% discount, 3 years and 6 months imprisonment with a non-parole period of 1 year 9 months. The punishment explores the model of punishment being retribution and deterrence and continues to articulate the relationship that the criminal justice principles have with these models.
These cases explore how a judicial process of a case (due process) ensures a fair case balanced on the standard of proof, with the responsibility to uphold the law (crime control) (Walklate 2017) and to prosecute/punish the individual is consistent and articulate the models of punishment observed when an offender is sentenced (i.e. a sentence of imprisonment articulates the retribution and deterrence model of punishment).
The Local Court:
Similarly to my observations of the district court, following observations of the local court exhibited similar ways in which serious offences are dealt with. In the case of R v Green (Local Court), the young male offender (Mr Green) was charged with possession of a prohibited drug and assault occasioning bodily harm after an altercation ensued as a result of a practical joke played on the offender’s father by the offender’s brother. The severity of the altercation meant the victim had to undergo reconstructive surgery to heal the fractures caused by the offender. The court heard Green’s defence of underlying mental health issues; however, it could not assist in the decision as it was not able to be further investigated by psychiatric reports as a result of strict bail conditions. Consequently, the offender was given a sentence of 8 months’ imprisonment with an additional 6 months where parole may be issued, and Green will be supervised by Community Corrections required to attend programs that involve Green’s diagnosed mental conditions. Furthermore, the judge decided to impose no additional penalty for the unrelated offence of possession of a prohibited drug due to the full-time custody sentenced imposed for the more serious offence. The judge’s decision exhibited the retribution and deterrence model of punishment through the penalty of imprisonment. Rehabilitation is also exhibited with participation in community corrections programs that involve the offender’s mental health. The principles of due process and crime control seen throughout the judicial process of the offender’s case, and the sentencing of the offender in order to uphold the law further shows the connection between the theories of criminal justice principles and real cases where these principles are applied.
Finally, in my observation of R v Buffay (Local Court), the defendant (Mr Buffay) was charged with recklessly inflicting grievous bodily harm concerning a domestic violence offence to which the offender pleaded guilty to when the matter first came before the court. A psychological report detailed that the offender had problems with binge drinking, had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and had been prescribed medication for suffering from depression and at the time of the offence, which furthered reasoning for the offence as “suffering a major depressive disorder”. The defence attempted to dismiss the case on grounds that the defendant was suffering from a mental health condition and to be diverted to the care of mental health professionals rather than the CJS (under the Mental Health (Forensic Provisions) Act 1990). Although the offence was deemed out of character, it was denied by the judge and the guilty plea was entered along with the 25% discount. The offender had caused great injuries to the victim through striking the victim’s face with his knee forcefully, causing several teeth to fall from her mouth and caused heavy bleeding. After discussing the facts of the case, the judge convicted and sentenced Mr Buffay to 2 years imprisonment with a non-parole period of 18 months.
The retributive model of punishment further explores my claim on how the most frequent model of punishment is retribution with deterrence through observed imprisonment sentences. As aforementioned, the theory of due process and crime control meant the judicial process was conducted fairly and impartially while still upholding the law through prosecuting the defendant who was in breach of the law. This relationship of these processes shows the similarities of the local and district court in dealing different variations of crime (mainly observed was assaults) and their severity that eventually led to the models of punishment being exhibited (i.e. retribution and deterrence through imprisonment). It additionally further shows the links of important criminal justice principles such as due process and crime control and models of punishment such as retribution, deterrence and rehabilitation.
In Summary / Contrasting thoughts:
To summarise, the most frequent model of punishment observed within the NSW local and district courts was retribution and deterrence. The sentencing hearings I observed were all finalised with punishments consisting of imprisonment which explores the similarities between the two courts. Assaults within the lower court carried lesser sentences than those within the District Court due to the severity of the offence. The principles of crime control and due process were additionally correlated more with the frequent model of punishment observed which is incarceration and deterrence seen within sentences of imprisonment. Finally, despite all observations of cases within the local and district court being finalised with an imprisonment sentence, it is still considered a “last resort” principle (Brown and Johns 2017) as per 2017 statistics from BOCSAR concluding that imprisonment makes up only approximately 8.7% of penalties imposed by the Local Court. However, the 2017 BOCSAR statistics on the District Court’s penalties contradict the “last resort” imprisonment principles as it was concluded that more than half of the cases finalised in the District Court (approximately 68%) saw offenders receive retributive punishment (imprisonment) as their punishment/penalty. Additionally, due to these high amounts of retributive penalties observed, the relevant debate over whether penalties should be based on retributive justice can compromise either the ability to deter a person from crime. If the deterrence model of punishment/justice where maximal deterrence means a lesser penalty imposed, then it can impact “the gravity of an offence” (Kelly 2009). This can, therefore, diminish the criminal justice principles that aim to uphold the law and ensure a fair/impartial judicial process (such as natural justice and due process). The abandonment of rehabilitation processes 30 years ago in hopes to embrace and practice justice through deterrence is believed to now dominate the criminal justice landscape (Gendreau 1996) and is supported through my observations of retributive punishments such as imprisonments that act as a deterrent for crime.
In conclusion, I would claim that as a result of my observations the most frequent model of punishment observed in the NSW local and district courts was retribution and deterrence. Rehabilitation was additionally observed in cases where illicit drug/alcohol abuse and mental health conditions were involved but were mainly combined with the deterrence model (i.e. in intensive community corrections that required supervised plans and applied sanctions if breached). Observations in the local court contrasted statistics, as all cases observed in the local court had outcomes of imprisonment, however, statistically only equates to a small percentage of outcomes overall within the NSW local courts. Similar to my observations of the Local Court, all outcomes observed in the District Court were finalised with imprisonment sentences, correlating more with the higher overall statistics of imprisonment penalties. Therefore, these models of punishments observed in court explored the relationship of the principles of justice such as due process and crime control being enacted during the court cases.