artikel -- a not so rational philosophy. a critique of the penalties and sentences act 1992

7/27/2019 Artikel -- A Not So Rational Philosophy. a Critique of the Penalties and Sentences Act 1992

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A Not So RationalPhilosophyA Critique of the Penalties andSentences Act 1992 Qld)

Brett Mason*

1. IntroductionLike political and economic theory, theories of punishment come in waves. Fash-ions cha ng e. In th e 1960s and into th e 1970s utilitarian theo ries dominated penalphilosophy: deterrence, prevention, and rehabilitation were the philosophies driv-ing co rrec tion s policy. But then cam e a wave of retributivism tha t all bu t wash edaway the legacy of utilitarianism.Just de ser ts bec am e the hop e of the new retributivists who sough ttoensurethatoffenderswere trea ted with resp ect as autono m ous fre e thinking individualsand punished according to a scheme of proportionality or tariff In more recentyears there has been a react ion against this individualis t , desert-orientedretributivism. Som e have soug ht to connect the offenderwith the com munity byfacilitating the offe nd er's penan ce o r by ensuring tha t the aim of pun ishm ent is toprom ote social free do m or dominion .

1O the rs hav e sou ght to retu rn to the utilitarian philosophies of ye stery ear in-voking spirits of th e past to bolster claims that only recently had been put to bed .The Queensland Attorney-General, the Hon Dean Wells MLA, championed the

Penalties and Sentences Act 992 (Qld)2 ( the Act ) as ... derived from the ra-tional utilitarian philosophy of protecting society and its members from harm . 3The Attorney-General sought to invoke John Stuart Mill as well as a bevy of

* Lecturer, Ju stice Stud ies, Faculty ofLaw Queen sland University of Technology.1 See , for exam ple, RA DuffTrials and PunishmentsCam bridge University P ress Cam bridge 1985;

J Braithwaite and P PettitNot Just Deserts A R epublican Theory of Deserts Clarendon Press Ox-ford 1990.2 W hich com me nced 27 Novem ber 1992.

3 Queensland Legislative Assem blyParliamentary Debates 13 Nov emb er 1992 at 703.


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contemporary authorities to support his philosophy. The implications of the phi-losophy for sentenc ing practice are neatly sum m arised in the P ream ble to the Act:WHEREAS 3. Society may limit the liberty of members of societyon yto prevent harm to itselfor other members of society.4Th is article exa m ines the implications of this philosophyforthe senten cing ofoffenders in Queensland. While on the surface this philosophy may seem pro-gressive, o r at least benign, it will be a rgue d that if imp lemen ted this philosop hymay have profoun d implications for sentencing policy in Qu een sland.First, the philosophy is not consistent with common law sentencing princi-ples. Ofitself th is is not critical. But the ill con sidere d implications of th e re fo rmand the de m onstrated misun derstanding of the principles of just de se rts a re cau sefor concern.Secondly, while it is conce ded that initiatives we re n ec ess ary to conso lidateand re form th e law relating to the senten cing ofoffenders th e rational utilitarianphilosophy espo used by the Attorney-General and reflected in th e Act is flawed.Not only is rec ou rse to authorities such as John Stua rt Mill highly problem atic b utth e utilitarian p hilosophy und erpinn ing th e Act ha s distinct disadvan tages in prac-tice particularly as it rela tes tooffencestypically comm itted by the disadv antag ed.

2 . Comm on Law Sentencing PrinciplesThe basic principle in sentencing at common law is proportionality.5 In short,sente nce rs are conc erned that punishm ent shouldfitthe crime. Of course, jud ge smay also consider aggravating and mitigating circumstances in deciding the ap-propriate quantum of punishment. But the notion of proportionality limits theam oun t of punish m ent that can, in any case, be inflicted.At com mo n law it is clear that pu nishm ent bey ond w hat is prop ortion ate to anoffence merely for the purpose of protecting society is not permitted. In Veen vThe Queen [No 2] 6 the majority comprising Mason CJ, Brennan, Dawson, andToo hey JJ outlined th e prop er role of com mu nity p rotection as a conside ration insentenc ing at comm on law:

Itisone thing to say that the principle of proportionality precludes the imposition ofasentence extended beyond whatisappropriate to the crime merely to protect society;

4 Em phasis added.5 A onHirsch and A Ashw orth Not Not Just De serts: A Respon se to Braithwaite and Petit (1992)12Oxford ournal of Legal Studies83.6 (1988) 164 CLR 465.


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11QUTU ANotSoRational Philosophyit is another thing to say that the protection of society is not a material factor in fixingan appropriate sentence. The distinction in principle is clear between an extensionmerelyby wayof preventive detention, which is impermissible, and an exercise of thesentencing discretion having regard to the protection of society among other factors,which is permissible.

7

T h e m inority of th e C ou rt came ou t strongly against any concept which wouldallow for se nte nc es in ex ce ss of just de ser ts principles on the basis of fore ca stda ng ero us ne ss to th e comm unity of an offe nd er (often called preventive deten-tion ).8 In particular, W ilson J held that Asentence can not repre sen t appropriatepun ishm ent for the particularoffenceif by reason of a con cern to prote ct the com-munity it exc eed s that sentence which is the m aximum th e circum stances of theoff en ce , viewed objectively, will bear. 9M ore recently, inR vChivers10 the Qu eensland Co urt of Criminal Appeal alsoconsidered the issue. CooperJ11held that:The common law does not sanction preventive detention and the principle of propor-tionality does not permit the increase of a sentence of imprisonment beyond what isproportionaltothe crime merelyforthe purpose of extending the protection of societyfrom recidivism of the offender.12

Clearly, th e com m on law senten cing principles operating in Qu eensland priorto the introd uction of thePenalties and Sentences Act 992 (Qld) were groundedin proportionality. An offe nd er wa s to receive a sentence com m ensu rate w ith h isoffence adjusted, perhaps, to take account of certain aggravating and mitigatingcircumstances. The prospect offutureharm was notof itselfsufficient to w arra ntpu nis hm en t in ex ces s of that justified on the b asis of proportionality.

3 . A Rational Utilitarian Sen tencing Philosophy ?In common with other Australian jurisdictions, the disparate sentencing optionsavailable un de r various legislative sch em es em erge d as an issue of public con cernin Queensland in the late 1980s particularly as they impacted upon fairnessand consisten cy in sentenc ing. T he then newly elected Labor go vern m ent sou gh tto reform sentencing practice as part of its overall reform of criminal law and7 Ibidat 473.8 W ilson, D ea n e and Gaudron JJ.9 Wilson Jibidat 487-488.10 [19931 lQ d R 432.11 Citing as authority eenv The Queen [No .l ] (1979) 143 CLR 458 at 46 7,4 68 ,48 2^ 83 ,49 5; eenv

The Queen [No. 2] (1988) 164 CLR 465 at 472 -47 4,4 85 -48 6; Chester v T he Queen(1988) 165 CLR611at 6 8; Rv Aston (No. 2) [1911] Q dR 37 5a t38 1.

12 Supra n.10 at 447.


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BRETT MASON (1995)criminal justice policy. Prior to the com mencement of the enaltiesandSentencesAct 992 (Qld), the Queensland Attorney-General, the Hon. Dean Wells MLA,explained that the aim of the new Act would be to consolidate into one s tatute thesentencing options available and to supplement them with additional options.13Section 3 states tha t the purposes of the Act include:(a) collecting into a single Act general powers of courts to sentence offenders;and(b) providing for a sufficient range of sentences to balance protection of theQueensland community with appropriate punishm entfor and rehabilitationof, offen ders ; and(c) prom oting consistency of approach in the sentenc ing ofoffenders;and(d) providing fair proced ures(i) for imposing sentences; and(ii) fordealing with offenders who contravene the conditions of their sentence;and(e) providing sentencing principles that are to be applied by cou rts; and(f) making provision so that offenders are not imprisoned fo r non-payment offines without the opportunity of obtaining afineoption order; and(g) promoting public understanding of sentencing practices and procedures; and(h) generally reform ing the sentencing laws of Queensland.

Sentencing refo rm was long overdue in Q ueensland. As in o ther Australianstates, refo rm of important aspects of the criminal justice system was not under-taken as politicians recognised only too readily tha tfewvotes were to be gainedfrom suchinitiatives.Th e Attorney-General dese rves creditforassuming the taskof reform ing and consolidating aspec ts of the law of sentencing.The Attorney-General's agendaforreform was initiated against a backdropofworld wide disenchan tment with rehabilitationasthe overriding punishm ent prin-ciple. In recent y ears punishment has increasingly been justified by re ference toretribution. As noted by the Australian Law Reform Commission, In gen eral itwould appear that the Australian community subscribes to Jtheview tha t retribu-tion and deterrence shouldbethe majorgoalsof sen tencing policy. 14Justice Nagle,in his landmark Royal Comm ission into New South Wales prisons o bserved tha tthe aims of corrections should be ... imprisonment as punishment, retribution,

de ter ren ce and the protection of society .15Rehabilitation and humane treatmentwere relegated by him to positions of secondary importance.13 D W ells Sentencing Philosophy and Prison Reform in Queensland: Da nge rou s O ffende rs Ad-dr ess to the Qu eensland Law Society, Brisbane, 2 Nov emb er 1991.14 A s cited in M Findlay, S Odger s and S Yeo ustralian Crim inalJusticeOxford University Pr essMelbourne 1994 at 192.15 J Nag leReport oftheRoyal ommissioninto NewSouth Wales PrisonsGovernm ent Printer Sydn ey1978 at 380.


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11QUTLJ NotSoRational PhilosophyPolicy m ak ers retu rn ed to retribution, or its m od ern derivative just de serts ,as it be cam e increasinglydifficulttojustify rehabilitative schemes which showedno apparent imp rovem ent for attendees over offenders who did not receive th ebenefit of suc h sche m es. In sho rt, it seem ed that nothing worked . In addition,

it was argued that it was immoral to pursue a purely instrumental use of punish-men t to th e de trim ent of individual rights. Utilitarian theo ries (such as de terr en ceand rehabilitation) were criticised as treating individuals as means rather thanends. By definition, utilitarian th eor ies a re not so c once rned with justice as th eyare with social utility and harmony. The catch cry of modern retributivists wasthat no other punishment philosophy could be supported on empirical or moralgrounds.16The Queensland Attorney-General sought to break out of the barren terrainof retributivism and e m brac e a progressive and liberal policy groun ded in the ideaof limiting liberty only to prev ent fu tur e harm to society or m em be rs of society.Th e Attorney was conce rned that punishm ent should serve a social purpose andnot simply be insisted upon for its own sake. Retributivists, argued the Attorney-Gen eral, su ff er ... a kind of institutional bu t m indless action/reaction .17 And,fur the r, . . . th e retributivist proposition that society ha s no fu rth er bu sine ss withan offen de r wh en it ha s hit back at him to an extent equivalenttothe blow he dealtsociety is simply myopic .18

During debate on the Penalties and Sentences ct, government spokesmenwe re quick to po int out the considerable difficulties that be set retribution. M rW elford MLA pointed out that retribution relies upon the idea of propo rtionality todeterm ine th e appropriate quantum of punishm ent. An assessm ent m ust be m adeto ensure that the punishment is proportionate to the crime. The difficulty, MrW elford poin ted o ut, is tha t it is often ver y difficult to dete rm ine propo rtionality:an eye for an eye mig ht soun d reasonably p roportiona te bu t what, for example, isan appropriate pu nishm ent for fraud.19Th e Attorney-General and other m em bers of the govern men t were correct torevisit and re as se ss philosoph ies of pun ishm ent. Pu nishm ent is an integral aspectof any criminal justic e system . T he A ttorne y's rational utilitarian philosophy iswell inten tione d and sinc ere. It is also flawed.

*

16 Se e, for exam ple, the work of the early enthusiasts for just deserts; E Van den Haag Punishingriminals Basic B ook s N ew York 1975 and A Von Hirsch Doing JusticeHill Wang Ne w York

1976.17 Supran .13 at 5.18 Ibidat 7.19 Supran.3 at 709.


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4 . A Not So Rational Philosophy(a) The Ghost of John Stuart MillStrangely, perhaps, but the Labor Attorney-General drew intellectual inspirationfor his rational utilitarian philosophy fro m th e gr ea t liberal Jo hn S tuar t Mill.In particular, the Attorney relied on the following passage from Mill 's essayOn Liberty.

The principle is, that the sole end for which mankind are warranted, individuallyor collectively, in interfering with the liberty of action of any of their mem bers, isself protection.20Whatfollows the A ttorney explained,istha t, . . . fir st .. . ifapunishm ent greaterthan that which can reasonably be expected to be required to protect society isimposed, then restraint ha s gon e too f a r .. . [And, second, ] .. . if the re strain t whichis imposed is not sufficien t to protec t society then restra int ha s not gon e farenough. 21On the fa ce ofit such a philosophy ha s much merit. Punishm ent h as aclear purp ose to protect society from offenders and is refera ble to an impor-tant societal good social harmony.So confident was th e Attorney of his new found philosophy th at h e had it in-corporated into the Preamble to the Penalties and Sentences Act Pa rt 3 of th ePream ble to the Act says:Society may limit the liberty of m embers of society onlyto prevent harm to itself orother memb ers of society.22In other words, penalties that limit liberty (such as imprisonment) may only

be used for those offen ders who are likely to harm others in the f uture . W hilesuperficially attractive, the philosophy of punish m ent d oe s not allow for such sim-ple answers.First, let us return to basic principles. Mr Wells cites Mill from his work OnLiberty as authority for his punishment philosophy. Mill sought to define, onceand for al l, ... the natu re and limits of power which can be legitimately exercisedby society over the individual .23He did this by ass erting... one very simple principle, as entitled to cover absolutely the dealings of society withthe individual in the way of compulsion and con tro l... That principle is, that the soleend for which mankind are warranted, individually or collectively, in interfering with

20 JS Mill On Liberty London 1859. Reprinted in Utilitarianism Liberty and Representative Govern-ment, Ever ym an s Library no. 482 London 1910 at 72.21 Supra n.13 at 4.22 Em phasis added.23 Supra n.20 at 65.


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11QUTLJ ANotSoRational Philosophythe liberty of action of any of their number, is selfprotection.That the only purposeforwhich power can beright ullyexercised over any member of a civilised community,againsthis will is to prevent harm to others. Hisowngood, either physical or moral, isnot a sufficient warrant. He cannot rightfully be compelled to do so, because it willmake him happier, because, in the opinion of others, to do so would be wise, or evenright.24The core of this principle is that individuals must be allowed to pursue theirown good in their own way. It was an attempt by Mill to define the appropriatelimits of state pow er in partic ula r th e pow er to pun ish. Specifically, M ill's prin-ciple seeks to address the question what kinds of behaviour should becriminalised? It is a classical liberal st atem en t settin g broad limits on the pow er ofsociety over t he individual. It see ks to maxim ise the f reed om of the individual to sec ure th e citadel of free do m ... beyond w hich the law mu st not trespass. 25Str ang ely, however, the Labor Attorney-General ad opts Mill's principle not asa classical liberal expression of the limits of state power to make laws but as aprinciple that relates to the appropriate role of imprisonment ( to limit the lib-erty ) as a punishment sanction. Whereas Mill seeks to develop a principle tolimit and justify state sanctioned punishment and the boundaries of the criminallaw, the Attorney-General seeks to develop a principle that relates to limit thetype of punishment that the state can inflict after conviction. Mill's principle

operates to defin e state pow er prior to the comm ission of anyoffence.It sets th eboundary or province of the criminal law. Under the Wells view the scope of thecriminal law is not considered. Mill's principle is applied only to the exercise ofpunishment options.This is a creative exploitation of Mill's principle. More importantly, it is aninterpre tation th at im plies policy ou tco m es at odds with Mill's ideas of liberty andutility. T hu s, ado ptin g M ill's principle on e would conclude tha t, for exam ple, kill-ing another should be considered a crime because the state is entitled to protect

its m em be rs fro m har m . Pu nish m ent, according to Mill, could then follow for sev-eral utilitarian reasons: to deter, to rehabilitate, to denounce, to protect. Simpleenough.Th e Attorney-General, however, procee ds m uch fu rth er than M ill. He ass ertsthat only if an o ffe nd er is likely in thefutureto harm society or its m em be rs shouldthe off en de r be dep rived of liberty. Strictly, therefo re, the m ur de rer motivated by#passion to kill his lover wh o can show th at he p oses no thre at of harm in the futur eshould n ot be im prison ed. Thi s is a perversion of Mill's thesis.

T he A ttorn ey's m istake is to use Mill's principle, which s eek s to define whatsorts of behaviour should be criminalised, for a different purpose namely, todefine app ropriate typ es of pu nish m ent assum ing the com mission of a crime. Un-fortunately, the Attorney's reworking of Mill's principle does nothing to address24 bid at 72 73.25 P Dev lin The nforcement of Morals Oxford University Press Oxford 1965 at 103.


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Mill's real con cern s, such as en sur ing tha t victimless crim es like prostitutionand hom osexuality ar e not the subject of criminal sa nctions.b) The Common Law and Just D eserts

T he rational utilitarian philosophy underpinn ing thePenalties and Sentences Act992 (Qld) is not reflected in the common law. As discussed above,26 the HighCourt held in the een cases that judges should not impose a sentence beyondwhat is approp riate to the crime merely to protect society fro m ha rm . Rather, inexercising the ir discretion within limits set by just d es er ts jud ge s may consider,am ong o ther factors, the protection of society. W hat the H igh C ou rt is su gg estin gtherefore is that while the notion of just deserts does not dictate a specificpunishment for a particular offence it serves to limit the range of permissiblepunishments.Secondly, as Mason and Aickin JJ held in een v The Queen [No ]2\ in prac-tice it is rare th at conflict will arise be tween t he notions of public protection andjust deserts in cases of serious violent crime where the offender has an estab-lished propensity fo r violence. T he conflict is much m ore likely in ca ses involvingless se rious offences.

A leading English commentator on sentencing, Dr David Thomas cites suchan example.28An offe nd er was sentenced to life imprisonm ent for ro bb er y con-sisting of the th ef t of two p ounds froma man accosted in the str eet and th rea ten edwith an air pistol. Medical evidence was given sug gesting tha t the offender slim-ited ability to control his abnormally high sexual drive would ve ry probably leadto his commission of violent sexual offences if he were released, and it was alsotho ug ht that the re was no prospect for an effective treatm ent. Clearly, the ra-tional utilitarian philosophy espo used by the Attorney-G eneral would end or sesuch an outcome.29Of itself, this may be of little concern. Governments are entitled to establishprinciples of sentencing. What is much more disturbing is the apparent lackof un de rsta nd ing of retributivist principles. For example, the A ttorney-G enera largued that

The retributivist model sees the infliction of detriment from wrong wilfully done asmorally good in itself. It saysthatthe offendershouldbepunished accordingtoh is justdeserts. Consequently, questions of societal protection are irrelevant.

26 Se e above,n 11.27 1979) 143 CLR 458; per M ason Jat 46 8 and A ickinJat 497.28 D T h om as Principles of Sentencing Heinem ann L ondon 1979 at 301.29 It is interesting to note, how ever, that the Penalties and Sentences Act may not al low this outc om e.

Offen ders subject to an indef inite sentence must f irst have co mm itted a seriou s violent of fe nc ese e ss. 162 and 1 63).

30 Supra n.13 at 5.


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T he Attorn ey is re fe rri ng to an ancient and idealised version of retributivism.M odern just de se rt s the o ry is not quite so dismissive of que stion s of societal pro-tection. As the High Court indicated in Veen v The Queen [No IP1 the generalpractice of the common law is that just deserts will set the outer limits of punish-ment. W ithin tho se ou ter l imits societal protection is not irrelevant to the ex ercis eof judicial disc retio n. It nev er h as be en .

At tacks on jus t deser t s p r inc ip les were a l so made in par l i ament dur ingthe Second Re ading s pee ch to the Penalties and Sentences Act M r W elfordargued tha t On e thing is certa in is that just ice alone doe s not entai l retribution,bec ause justic e en tails con ce pts of equality of treatme nt. 32M r W elford adde d thatequality of tre atm en t w as impo ssible be cau se . . . we can not m ea sur e individualresponsibility. 33T he se ar e unus ual claims. Ju st des er ts is fundam entally con cerne d with equal-ity of t reatm ent ; o ffen ce s which do m ore objective harm de serv e m ore punish-ment. On the o ther ha nd, the phi losophy underpinning the Penalties and Sentences

Actdem and s that pun ishm ent is assesse d according to some asse ssm ent offutureharm. Thus, punishment is based not on the offence but an assessment of theoffender W hile it is adm ittedly a lways difficult to m ea su re individual respo nsibil-ity it is at least capa ble of m ea su rem en t. It is mu ch m ore capable of m ea su rem en tthan future harm.

Equality of tre atm en t u nd er th e Wells philosophy is a chim era. Tre atm en t wills tar t to depend more upon who an offender is rather than what an offender hasdone. Ju st d es e rt s is not , as M r Welford claims, simply em otional vengeance.34 Itinvolves an assessment of what an offender has done and demands punishmentaccordingly. T h e pen alty is prop ort ion ate to the offen ce. Ju dg es ha ndin g downpun ishm ents do so only after a con sidere d w eighing of the offence they ar e notsimply society 's vengeful mouthpieces.Th e At torney-General co m pou nds this erro r by insist ing that Justice does

not mean retributivism .. . Notions such as the doctrine of proportionality, whichis derived f ro m th e p hiloso phy of retributivism, is not pa rt of this Bill. 35It is diffi-cult to conceive of a mo de rn sen tenc ing code tha t igno res retributivism as a just i-fication to pu nis h. A nd so it is with th ePenalties and Sentences Act For while theAttorney de nie s i ts existe nce as a sente ncin g principle it tops the l ist of autho risedsentencing p ur po se s in section 9 of the Act:Sentencing guideliness 9. 1) T he only purposes for which sen tenc es m ay be imposed on an offender are a) to punish th e offe nd er to an extent or in a way that is just in all the circumstan ces;

31 1979) 143CLR 458.32 Supran.3 at 708.33 b id at709.34 See,ibid at 709.35 b id at703.


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Th is is a classic statem ent of just d ese rts. It do es not draw upon rehabilitation,de terre nc e, disapproval or com mu nity protection for th e justification to punish.36It is unclear how th e Attorney-General so ug ht to abolish just d es er ts and pro-portionality as sen tencing justifications and yet seek to ens ur e a just senten cingsystem . By relying upon publicsafety as the b enc hm ark fo r sen ten ces of impris-onm ent, the Attorney-General is too ready to dism iss just de se rts a s a senten cingrationale. W hatever th e we akn esse s as a sentenc ing rationale of retribution, justdes er ts or propo rtionality (call it w hat you will), pu nishm en t can onlyeverbe jus-tified if it isdeserved.To punish an offend er in circumstances w her e they do notde serv e th e pun ishm ent (even w here, as advocated by Mr Wells, it would add tothe total sum of hum an happiness) is anathe m a to our se nse of justice.

c) Rational Utilitarianism and Social JusticeIn advocating refo rm of the sentencing system th e Attorney-General was kee n topoint out that an important goal of reform was a more benign and rational sys-tem.37 He we nt fu rth er and prophesied that if imprisonm ent was not base d u ponpredictions of fut ure ha rm th en ... we will be howled down by tho se advocating areturn to capital punishment. 38At some levels, however, thePenalties and Senten esAct may prove to be le ss than just in its application to th e disad van taged .Policy gro und in the utilitarian asse rtion th at Society may limit th e liberty ofm em be rs of societyonlytoprevent harm to itself or other m em be rs of th e comm u-nity 39 breaks the vital nexus between the offence and the sentence. Instead itmaximises the link between the offender and the sentence. No longer can it besaid that punishm entfitsthe crime. Under this philosophy pu nish m entwill fitthecriminal.Th us , thi s policy ha s distinct implications for th etypeof criminal to be impris-oned un der t he Act. It will ensure that m ore often than justice dictates criminalsimprisoned will be young , poor, disadvantaged and m em be rs of certa in racial mi-norities. Less o ften than justice d em and s will the imprisoned criminal be afflue ntand c orr up t particularly as white collar criminals are often mo re able to showtha t they will no t repeat their criminalactivity.Th e Attorney-General's philosophy,as reflected in the Pream ble to theAct,only contem platesfutureharm . Th at is notgood enough. Offenders convicted of serious fraud offences, for example, maydeserve to go to jail even if they no longer present a risk to society. The nexusbetween offence and punishment should not be extinguished.M ore fundamentally, perhaps , what is futu re harm ? W hat sor t of ha rm arewe talking of? W hile p erh ap s m any people would allow that one legitimate func-tion of pu nishm ent is to uphold the stand ards emb odied in the criminal law, th e36 T h es e principles are catered for in ss 9 1) b), c), d) and e) of the Act respectively.37 Supra n.13 at 15.38 Ibidat 15.39 Preamb le to thePenalties and Sentences Act 992 Qld) emp hasis added).


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11QUTLJ A NotSoRational Philosophyconcept of harm seems dangerously general . I t is always possible that an assess-ment of an of fe n d er 's likelihood to com m it ha rm will dep end on official belief in adegree of social isat ion fa r br oa de r tha n a me re w ill ingness to con form to the crimi-nallaw Th is mu st be res is te d. While undoubtedly conceived in a ge ne rou s spir itthe A cfs rational ut il itarian und erp innin gs hold dan ger sforthoseoffenderslikelyto be pun ished f or w ho the y are and not w hat they have done .

5. ConclusionThe A ttorne y-G ene ral 's rational utilitarian philosop hy suffersfrom its overstate-ment. By insist ing upo n th re at to th e pu blic safety as the only grou nd s just ifyingimprisonment, Mr Wells ign ore s th e nec essi ty for just dese rts . Fo r example, wha tof the mu rd er er w ho c an so m eho w show th at he will not reoffend? Should thisnecessarily mea n th at the m ur de re r g oe s free. Conversely, the petty thief who, itis revealed in evide nce , is ve ry likely to com m it a violent crim e in th e n ea r fu tur e.Should the thief be locked up for years until the diagnosis is altered? What ofsome of Au stral ia 's no toriou s failed en trep ren eu rs or crooked ex police com-missioners or disg rac ed politicians . Let us as su m e tha t th es e w hite collar crimi-nals will nev er ha rm th e pub lic again. Do es this mean that they should never beimprisoned for the ir appall ing pas t misde eds? Surely not . T he Attorney-G eneral 'shypothesis is too simple. It must, at some level, be subject to just deserts.

W hile ci t ing Jo hn Stu art Mill in su pp ort of his philosophy M r W ells ha s mis-unde rstood th e n at u re of M ill's su pp or t. Mill so ug ht to develop a principle to limitand just ify th e bo un da ries of th e criminal law. T he Attorney-Gene ral h as devel-oped a principle th at s ee k s to limit th etyp of punis hm en t that th e state may infl ictafter conviction. Un like Mill, the A ttorne y's principle d oes n othing to n arro w theprovince of the criminal law, but rather, only to limit its sanctions.Mr Wells also drew upon more contemporary authori t ies in support of hisposition, including a leading authority in the area of the philosophy of punish-ment, Pr ofe sso r Nigel W alker. Onc e again, however, W alker 's apparent s up por t ismisleading. While Professor Walker has advocated preventive detention to pro-tect the com mu nity fro m possible fu ture harm , he doe s not argue that imprison-ment should onlybe use d to preven t future harm . His argu m ent is that imprison-ment may be used to protect the com mun ity from possible future har m but not* only for th at purpo se. 40 Imprisonment may serve other purposes .It is difficult to arg ue w ith th e Attorney-G eneral 's su ggestion that parl iamen tis entitled to legislate to en su re th e application by the judiciary of certa in pun ish-ment principles. Such principles should, however, be consistent with just ice. Tosuggest, s did th e Attorney -Ge neral an d oth er parl iamentarians, that just de se rtshas no place in a rational se nte nc ing stru ctu re, or furthe r, is inconsistent with th e

40 See, N Walker Ethical Asp ects of Detaining Da nge rou s People in J Hamilton and H Freeman(eds)Dang erousness Psychiatric Assessment and Ma nagem ent Gaskell London 1982 at 24.


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B R E T T M A S O N (1995)demands of justice, is to misunderstand the nature of just deserts. Just desertsmerely sets the outer limits of punishment. Within those outer limits set by justdeserts courts are quite entitled to consider community safety as an importantissue. Indeed, as the High Court held in Veen [No. 1J4\ in practice it is ra re th atconflict will arise betw een the notions of public protection and just d es er ts in cas esof serious violent offences wh ere th e offend er ha s an established propensity forviolence.

T he Act's rational utilitarian philosophy also ha s implications fo r th e type ofoffe nd ers tha t will be imprisoned. The assertion that Society may limit th e lib-erty of m em be rs of society only to prevent harm to itself or othe r m em be rs of th ecommunity 42b reak s the vital nexus between theoffenderand theoffence Underthis philosophy pun ishm ent will not fit the crime; rather, p unish m ent will fit th ecriminal. Th is ha s implicationsfordisadvantagedoffendersand should have b eenfore seen by a govern ment supposedly comm itted to an agenda of social justice. Inshort, the nex us between offence and punishm ent should not be extinguished ascontemplated by the Act.Pe rha ps the grea test weakness of the rational utilitarian philosophy washigh-lighted during the very debates that introduced the Penalties and Sentences Actinto the Queensland Parliament. M ore than anything else it illustrates the practi-cal weaknesses of the philosophy and its submission to political realities. Theshadow Attorney-General and Minister for Justice, Mr Denver Beanland MLA,drew to Parliament's attention a case whe re a 28 year old bricklayer sexually as-saulted his former fiancee's 23 month old daughter. Mr Beanland reported thatThe judge sentenced the man to four years' gaol but suspended the sentencewhen he was satisfied that there was little likelihood of the man repeating thattype of conduct. To the Minister's credit, the Crown appealed against the sen-tenc e on the ground of inadequacy and the decision was overturned. 43

Applying to this case the M inister's rational utilitarian philosophy that of-fen de rs should only go to gaol if they re pre sen ta futuredangertothe comm unity,the offe nder should not have gone to gaol or, if he did, should only have go ne togaol for a very sho rttime As Mr Beanland stated, the judge found that th ere waslittle likelihood of repeatoffences Instead, the Crown appealed against sentencein direct con trasttothe rational utilitarian philosophy espo used by the Attorney.No d oub t political expediency as well as the dictates of justice demand ed tha tan appeal be launched. B ut what this simple example illustrates is tha t im prison-ment can not be used only w here there is evidence of fu ture harm . Sometimes, a sin this case, justice demands imprisonment even where there is no evidence thattheoffender willcommitoffencesin thefuture By appealing against the sen tenc ethe Crown understood this. And so did the minister. His rational utilitarian phi-losophy does notfitwell with political realities nor practical justice.41 Supra n.31 at 468 per MasonJ at 497 per Aickin J.42 Preamb le to the Penalties and Sentences Act 1992 Qld).43 Qu eensland Legislative Assem bly, Parliamentary Debates 15 July 1993 at 363 3.

artikel -- a not so rational philosophy. a critique of the penalties and sentences act 1992

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