Rejuvenating Financial Penalties: Using the Tax System to Collect Fines

The current system for the imposition and collection of fines in Australia is significantly flawed. Fines are often inappropriately imposed or not imposed, inequitable, have high default rates and are expensive to enforce. This paper suggests an alternative scheme for the enforcement and collection of fines, a Fine Enforcement Collection Scheme (FECS). It is based on the principles underlying the Higher Education Contribution Scheme, which involves the proposition that fines may be paid depending upon an offender's future income. Though requiring a substantial re-casting of federal/state legal arrangements and an extension of the role of the Australian Taxation Office, the paper argues that such a scheme would increase the appropriate use of fines, be more equitable, improve collection rates and thus revenue to the imposing authorities. Concomitantly FECS has the high potential to enhance the credibility of the criminal justice system overall. If successful, this scheme could be expanded to help enforce a wider range of monetary sanctions.

Abolish Children's courts? Juveniles, justice and sentencing. by Arie Freiberg

When twenty thousand Western Australians gathered in front of Parliament House on August 1991 in a rally for "justice", they were expressing not only their outrage at the recent spate of deaths of innocent people, but also a more profound disquiet about the state of their society

'Jalal's Law':driving the law in the wrong direction

This article provides a case study of the process of criminalising a form of dangerous driving in Victoria. It examines the process whereby an ostensibly draconian Bill was transformed into one far less damaging to fundamental criminal law principles and illustrates how populism may be tempered by proper parliamentary procedures, cooperation between parties and a desire to balance political and legal imperatives. It also examines the place of constructive offences in the criminal law and the role that the consequences of an offence plays in the structure of the substantive criminal law and in sentencing, particularly in the context of driving offences

Juggling on a tightrope

How Judges Sentence by Geraldine Mackenzie Federation Press, May 2005, 203 pp, $66 Reviewed by Arie Freiberg SENTENCING, lawyers observe, is one of the most difficult of judicial tasks. This is not necessarily the view of many media commentators or members of the public who appear to find the exercise very simple, especially when it is based on a limited amount of information. Judges often have great difficulty because of the complexity of the facts and sentencing law, the need to balance the various aims of sentencing, the range of options available to them and the widely differing personal circumstances of offenders. The ever watchful eyes of the media, the oversight of courts of appeal, the views of victims and the force of public opinion ensure that the sentencing process, while lonely, is never secret or unaccountable. This book, based on the author’s PhD, is an attempt to understand sentencing from the judges’ point of view. Though their voices are heard through their judgments, and sometimes at conferences and seminars, there have been few attempts to gauge sentencers’ perceptions about issues such as how they make their decisions, the purposes of sentencing, the degree of discretion afforded to them, the influence that public opinion has on their sentencing behaviour and the stresses that the responsibilities of sentencing place upon them. Geraldine Mackenzie, an associate professor of law at the Queensland University of Technology, interviewed 31 Supreme and District Court judges in Queensland in late 1998, posing a set of open-ended questions which gave the judges wide scope to respond. Unsurprisingly, they provided a wide variety of responses. Although they predictably argued for a balance between the various sentencing aims of retribution, rehabilitation, deterrence and community protection and did not see themselves are particularly punitive or retributive, the Queensland prison population has more than doubled in the last decade. Judges are not oblivious to public opinion, which, in Queensland, has clearly influenced their collective sentencing behaviour. Judges see themselves as central to the sentencing process, but in a highly charged political atmosphere the relationship between the legislature and the judiciary as to how sentencing authority should be distributed between them is often problematic. Most judges are in favour of being vested with a large amount of discretion, though there is popular and political pressure on limiting, structuring or removing discretion through the use of mandatory or minimum sentences, sentencing grids and guidelines. Judges are aware of the lack of public confidence in the judiciary but are also aware that merely imposing longer sentences, or in some cases, indefinite sentences, will not cure the perceived problems of ‘law and order’. They are generally in favour of rehabilitation, particular in relation to young people and offenders with drug and alcohol problems. They know that prisons are poor places for rehabilitation. An important theme explored in the book is the nature of intellectual process of sentencing. An old debate in sentencing is whether sentencing is an art or a science, whether the process should be conceived of as an ‘instinctive synthesis’ of all of the relevant factors or should be structured as a sequence of steps laid down by statute or appellate cases. This seemingly abstract debate has significant consequences in relation to the accountability of the courts, the degree of disparity that is acceptable and the appropriate information which can be put before the courts to assist them in reaching a decision. It is also important in relation to the perceived need for judicial education, for if the process is instinctive, there may little room for external contributions. Most Queensland judges interviewed for this study saw themselves as artists or synthesisers rather than scientists whose main task was to achieve ‘balance’. As one judge vividly put it: ‘Sentencing is an attempt to juggle objects of various sizes while walking a tightrope which is being shaken at both ends.’ This should prove a useful book for sentencing scholars and policy makers and possibly for a broader market which is mystified by the criminal justice system and the actions of the courts. Judges’ views of sentencing are important, not just for the insight they give into the opinions and experiences of those who have to sit in court and perform the task, but also because any reforms to sentencing, if they are to be effective, must take into account the attitudes of those who will be the subject of reform. • Arie Freiberg is Dean of Law at Monash University photo: Erick Jones/ iStockphoto.co