SENTENCING - LAWS4314

Week 1

Introducing Sentencing, Punishment and

Imprisonment

Associate Professor Anthony Hopkins

ANU Law School
anthony.hopkins@anu.edu.au 1
Acknowledgement of Country
Seminar Outline

1. Welcome and Introduction – this is a new course!

2. Breakout Group 1 - Introduce yourself and why are you interested in sentencing?
3. Why experiential learning and authentic assessment: think, plan, do, reflect THEN
critique
4. Choosing a brief and a role - letting assessment drive learning & reading
5. Visit the Supreme Court and watch a sentencing hearing!!!
6. Course structure, seminar format, reading, reading and seminar question
7. Breakout Group 2 – Engaging with the question of free will (+ report back)

Break (5 minutes)

7. Sources of Sentencing Law – Our Focus – Interstate Judgements

8. Proportionality, Consistency, Equality before the Law & Guideline Judgments
9. Incarceration and Inequality. Asking equality questions? Engaging with Experience
10. Understanding justifications for punishment and relationship to purposes
11. Breakout Group 3 – Unpacking s 7 Crimes (Sentencing) Act 2005 (ACT) (+ report
back)
12. The importance of the purposes and relationship to your submission
Breakout Group 1

• Introduce yourself?

• why are you interested in sentencing?

• what will help you stay motivated?

• Report back on chat

Sentencing and Experiential Learning

• Why sentencing matters?

• Why experiential learning and authentic assessment?

• think, plan, do, reflect THEN critique

• Learning the system from the inside then stepping back

1. Choose a brief
2. Choose a role
3. Let the assessment
drive your learning
Watch a sentencing submission!
Course structure, seminar format and reading

• Your engagement matters!

• How you use seminar and reading questions

• Part 1 – Thinking like a practitioner

• Get behind the wheel as a practitioner – enter the system
• What do I need to know to take to my feet in Court?
• Reading and seminars will be focused on this
• Justice questions will arise ….
• Primary focus is doing justice in individual case by rules of system

• Part 2 - Thinking like a critic, policy maker, reformer

• Step back from the system – connecting part 1 & 2
• Digging deeper into justice questions?
• Reading and seminar will be focused on this
• Where is the system succeeding or failing? By what measure?
• What works and doesn’t work?
• What arguments are there for reform?
• Don’t be scared of arguing for a revolution!
Breakout Group 2 – Questions on Free Will

1. What do you make of the arguments of free will sceptics, Harris and Carusso?
What does retribution mean and what is the difference between retributive and
consequential/utilitarian justifications for punishment? How are the ideas of free
will linked to retributive punishment?

2. Have a quick look at the highlighted detainee characteristics on the Australian

Institute of Health and Welfare Prisoners Overview here. How is the existence of
social determinates of crime relevant to the question of whether punishment is
deserved in the retributive sense?

3. Flip the question. If you consider yourself to be relatively privileged, do you

believe that you deserve these privileges in the same way that a person who
commits an offence deserves punishment? How does the existence or non-
existence of free will impact your answer? Does the idea of free will justify the
unequal distribution of resources in society?

4. Do the answers to these questions matter in practice, policy and law reform?
Take a Break
Sources of Sentencing Law

• Sources: Common law, Federal, State and Territory Statutes

• Our Focus: ACT Sentencing Law
• Crimes (Sentencing) Act 2005 (ACT)
• Relationship to Federal, State and Territory law
• Judgments: ACT, Interstate, High Court
• Where to find the law:
• Statute
• Text
• Decisions on Austlii -
http://www.austlii.edu.au/au/act/
• ACT Supreme Court website ‘Read a Judgment’
• https://www.courts.act.gov.au/supreme/law-and-pr
actice/judgments-and-sentences
Getting familiar with key principles and concepts

What do you understand by the following words or phrases in the

context of sentencing? Let’s use chat function.

• Proportionality

• Consistency

• Equality before the Law

• Instinctive synthesis

• Guideline Judgments

We will be returning to explore most of these as the course progresses

Link
 Imprisonment, Struggle and Survival – Is this equality? 29%

2020

29%
34%
53%

https://www.humanrights.gov.au/publications/statistical-overview-aboriginal-and-torres-strait-islander-peoples-australia#toc9

Prisoners in Australia, 2020 | Australian Bureau of Statistics

Imprisonment rates of Indigenous woman a national shame (June Oscar, 2018)
AIHW Youth Detention Population in Aust 2019
Understanding justifications for punishment and relationship to purposes

1. What is the essential focus of the following theories punishment:

• retributive,
• utilitarian,
• restorative

2. What are the two considerations that are coupled together in the ‘more
sophisticated’ retributive “just deserts” justification? What do you think
of this justification?
 
Breakout Group 3 – Linking Justifications to
Purposes
Consider the purposes of sentencing set out in s 7 Crimes (Sentencing) Act 2005 (ACT).
Which justifications for punishment support the stated purposes contained in the
sections.

How important are the purposes of punishment in sentencing and in your

submission?
What is

TJ
https://mainstreamtj.com/