Everyone from the local taxi driver to your neighbour is an expert on sentencing when it comes to cases reported in the media.
I mean, we’ve all been well educated by a plethora of TV shows like Judge Judy, Silk, and Boston Legal. We know our stuff, right?
Many of us also believe that for the most part, judges are too ‘soft’ when it comes to sentencing, and that penalties should be much tougher. So when it comes to sentences for well-publicised crimes, it’s probably no surprise that we have strong opinions, although there are only a few who can say they actually have all of the relevant information, and understand the sentencing process.
The fact is judges have the benefit of the whole story, not just sensationalised snippets selected by radio shock jocks, tabloid newspapers and politicians who distort the actual situation to further their own agendas. Judges also need to consider sentencing laws, many of which are contained in the Crimes (Sentencing Procedure) Act and relevant case-law.
You be the Judge
In a bid to create an understanding of the sentencing process, the Victorian Sentencing Council runs a program called ‘You be the Judge’.
ABC’s Lateline recently aired an episode about a session it attended with 30 community participants, all of whom had a real life chance to play the role of a county court judge and hand-down a sentence on an actual past case.
The group heard the story of Annie, who killed her passenger, a father of two, and seriously injured the driver of another vehicle in a collision one New Year’s Day when she was driving, while disqualified and registering a blood alcohol level of .14.
Annie had been drinking for 5 hours, before getting behind the wheel to buy more alcohol, and was driving at 110 km/h in a 70 km/h zone.
The group was told they needed to consider five principles when sentencing Annie: punishment, rehabilitation, deterrence, denunciation and protection.
In a mock sentencing hearing, the group heard part of Annie’s testimony, and viewed video from her defence lawyer.
“Annie is 37-years-old. Her parents were alcoholics and she had been sexually abused by her father. She started drinking at the age of eight and was made a ward of the state. Annie is divorced and she has two children aged 11 and eight. Her former husband was violent and abused her. Annie has one prior conviction for driving over 0.05. She was disqualified from driving at the time of the offence. She has never been to prison. Annie has pleaded guilty to the charges; she is extremely remorseful and has sought help for her problem,” the defence submitted.
The group was divided when it came to sentencing.
Some thought Annie could be rehabilitated and wanted to put her on a drug treatment order. Others thought a five-year prison sentence fit the crime.
In real life, Annie was handed a seven-year prison sentence, which is the median penalty for culpable driving causing death according to official sentencing statistics, but the majority of participants thought that sentence was too harsh.
And despite what you or I might say to colleagues in the lunch room, or to neighbours over the fence, or to the driver from the back seat of a cab, time and again these types of studies shows that real people – community members like you and I – are actually more lenient than judges when given all of the facts, and there are various bodies of research aimed at figuring out why .
Of the ‘You be the Judge’ participants, most were genuinely surprised to learn about the complexities of sentencing, and how misleading it can be to rely on media report which often distort and sensationalise a case.
And here’s something to do if you are genuinely curious about how you’d go as the boss of a courtroom – become a virtual judge and see what conclusions you draw.