Would You Be Harder on Crime than a Judge?

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Magistrates and judges are often criticised by the general public for being too ‘soft’ when dealing with offenders.

For instance, 23-year-old Luke Lazarus was recently sentenced to a minimum of three years imprisonment following a conviction for the sexual assault of a young woman in Kings Cross. After the announcement of his sentence, several members of the public declared that it was inadequate and urged the DPP to review the sentence.

And, following the highly-publicised Lindt Café siege late last year, many criticised the decision to grant bail to Man Haron Monis as an inherent failure of the judicial system.

Listening to radio misinformation about the Monis case, the public would be forgiven for believing that a bail application had been made and refused under the much-criticised new Bail Act. The reality is, however, that no application at all had been made under the new Bail Act – bail was only ever decided under the old Bail Act.

Indeed, the prosecution never applied to revoke Monis’ bail under the provisions of the new Bail Act when they could have done so at any time – and perhaps they should have done so after Monis broadcast social media threats in the week leading up to the siege.

After listening to irresponsible and inaccurate media broadcasts, some members of the public went so far as to blame the courts and even criminal defence lawyers for the tragic siege.

This raises an interesting question: if members of the public stood in a judge’s shoes -rather than fed media misinformation – would they really be harsher when it comes to dealing with offenders?

According to a recent sentencing workshop, the answer is a resounding ‘no’.

The Sentencing Workshop

A sentencing workshop involving 60 members of the general public was held at the Supreme Court of Tasmania recently, presided over by Chief Justice Alan Blow.

The workshop aimed to educate members of the public about the sentencing process and how decisions are made, in order to promote public confidence in the judicial system.

Those who took part in the workshop came from various backgrounds – including students and other members of the public.

They were divided into groups and asked to consider a scenario about a single mother who robbed a shop using a blood-filled syringe to fund a drug habit.

The facts of the case constituted the offence of ‘armed robbery.’

Statistics show that the median sentence for robbery offences in Tasmania ranges from 12 to 24 months imprisonment – but sentences for armed robbery offences have become harsher over time.

After considering the facts and the law, the groups were asked to determine a sentence for the offender. The sentences imposed by the groups varied from a two-year ‘suspended sentence’ to six months imprisonment.

These sentences differed markedly from the sentence that Chief Justice Blow would have imposed, which was two years’ imprisonment with a non-parole period of eight months.

According to Chief Justice Blow, the differences in sentencing are largely because members of the public:

‘[are not] familiar with the sort of offender that [members of the judiciary] see all the time and therefore have more sympathy than we tend to have.’

Those who participated in the workshop said that the experience was valuable, and that they gained an understanding of the ‘checks and balances and safeguards’ in the sentencing process.

Why Is the Public More Lenient When it Comes to Sentencing?

Other studies have supported the findings of the Tasmanian workshop discussed above – that is, that laypersons are likely to impose more lenient penalties than judges.

While this may come as a surprise, researchers have identified several reasons as to why the public tend to impose ‘softer’ penalties when they know all of the facts, rather than just the media hype.

Researchers have found that a person’s socioeconomic status is a major factor behind whether they will be harsh or lenient in sentencing offenders. Judges are more likely to hold conservative attitudes due to their social status and education. These characteristics make judges more respectful of law and authority and less resistant to change.

One Canadian study even found that, while judges and magistrates are expected to be fair in their sentencing, they were:

‘second only to police officers in authoritarianism and in endorsing retribution as a major goal of sentencing.’

From a layperson’s perspective, they evidently lack the legal education of judicial members, who hold law degrees and have years of experience working in the justice system.

Magistrates and judges are bound to consider various principles of sentencing in making their decisions, which laypersons may not fully understand or be aware of. Members of the general public also lack the day-to-day exposure of judges to offenders, which can make laypersons more sympathetic towards those being sentenced.

But remarkably, studies have also revealed that laypersons place a greater emphasis on ‘incapacitation’ in their sentencing. This means that they are more likely to consider the effect of a sentence in preventing, rather than simply deterring a person from offending in the future.

Nevertheless, the evidence suggests that contrary to popular opinion, members of the public are more lenient when it comes to sentencing compared to judges when they are given the facts rather than just sensationalist media reporting.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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