CHAPTER 3
PRINCIPLES GOVERNING PENALTY PROVISIONS
Introduction
3.1 The purpose of this Chapter is to canvass the principles which should
govern statutory provisions which impose penalties. In the context of
legislation such as the Productivity Commission Bill 1996, there are a
number of principles which relate to penalties generally and others which
relate specifically to the penalty of imprisonment. These principles are
not always easily reconciled.
Penalties should be fair and appropriate for the particular offence
3.2 It is self evident that penalties should be fair and appropriate
for each particular offence. Fairness is an expansive concept. Factors
to be taken into account when deciding whether a penalty is fair or not
include whether what it seeks to achieve is punishment or compliance or
both; whether the action for which the person is being penalised has claimed
a victim; whether the offence is one of strict liability or can only be
committed with intent; and whether there is a prevalence of the behaviour
being dealt with.
3.3 The Commonwealth holds that penalties should be appropriate. The
Crimes Act 1914 states as a general principle that sentencing courts
“must impose a sentence or make an order that is of a severity appropriate
in all the circumstances of the offence”. [1]
A similar principle applies to the setting of penalties, which represent
one of the few forms of guidance provided by the Parliament for sentencers.
[2]
3.4 There is no necessity that every apparently similar offence should
attract exactly the same penalty. [3] Notwithstanding the need for consistency noted
below, offences which appear similar in form may attract different penalties
because of the context in which those offences operate. Parliament may
consider that refusing to provide information to bodies such as the National
Crime Authority or the Australian Securities Commission may constitute
a more serious offence than failing to provide information to the Productivity
Commission. Failing to provide information may itself constitute a less
serious offence than providing false information.
3.5 Therefore, in order to ensure that a penalty is appropriate for an
offence, it may be preferable that a range of maximum penalties be developed,
both for offences within a particular Act, and for apparently similar
offences across a number of Acts. [4] It may
also be desirable that this range of penalties should provide for continuing
offences (for example, the penalty imposed for a failure to provide information
under the Census and Statistics Act 1905 is a daily maximum fine
of $100). [5]
3.6 Another aspect of appropriateness is that penalties should reflect
current attitudes and conditions and accord with the normal sentencing
practice of the courts. [6]. Penalties should be reviewed periodically to ensure
that they remain fair and appropriate in current circumstances. As the
UK Advisory Council on the Penal System observed in 1978 in discussing
penalties in that jurisdiction , “the pattern of maximum penalties
has been governed by historical accident and not by any rational penal
or sentencing policy”. [7]
Penalties are maximum penalties
3.7 Under Commonwealth criminal law policy, courts are provided with
a general sentencing discretion. As a policy matter, minimum sentences
are rarely included in legislation, and those penalties expressed in an
Act are always maximum penalties rather than set penalties. [8]
As such, the full penalty expressed in any particular provision of an
Act will only rarely be imposed, and is made available for the worst examples
of a particular offence:
For example … if there was a persistent and flagrant disregard
by particular parties who refuse to produce documents and appear before
the [Productivity] Commission, it may well be that if that persisted
and disrupted the work of the Commission that sort of conduct could
be taken into account in getting toward the upper end of the scale.
[9]
Penalties should be consistent
3.8 Consistency is the main aim of criminal law policy when determining
penalties. [10] This is usually expressed in
the principle: like penalties for like offences. To ensure consistency,
the Attorney-General's Department scrutinises proposed offence provisions:
Accordingly, advice on penalties for new offences usually involves
looking for similar existing provisions in other areas. Sometimes there
are arguments for variations if the community or industry which is regulated
by the relevant provisions is one in which a greater or lesser level
of deterrence is required. [11]
3.9 The Department told the Committee that the penalty provisions in
the Bill were within the range of penalties normally imposed for such
offences.
Penalties imposed by the Bill are coercive rather than punitive
3.10 The penalties imposed by the Bill are, ultimately, designed to ensure
that the Productivity Commission will operate effectively:
If you want a commission to work efficiently and without interruptions
to its activities, then you would want to have available penalties that
are effective in keeping the work going. [12]
3.11 This poses some practical difficulties. A penalty of a severity
suitable to coerce BHP or the National Australia Bank into compliance
under the Bill may appear “horrendous” to others potentially
affected, such as small family businesses involved in the tourist industry,
who remain theoretically liable in the same way. [13]
3.12 There is a need, here, to have regard to the various objectives
of punishment (which are normally seen as deterrence (both general and
specific); retribution; rehabilitation; incapacitation; denunciation;
restitution and wilful default). [14]
3.13 The most relevant of these to the penalty provisions in the Bill
are clearly deterrence (the penalty imposed should dissuade the offender
from re-offending, and should deter others from offending at all) and,
to some extent, denunciation (the penalty imposed should act as a symbolic
statement of society's view of the seriousness of the offence).
3.14 The Committee was advised that the penalty provisions in the Industry
Commission Act 1989 (or its predecessors) had never been formally
applied. However, their very existence might simply have provided sufficient
general deterrence. As the Industry Commission itself continued:
This is not to say … that the penalty provisions have not been
effective. The mere existence of the provisions has helped to promote
Parliament's intentions under the legislation, including access to information
relevant to the Commission's inquiries, the prevention of disruption
of Commission proceedings and contempt, and most importantly the protection
of persons appearing before inquiries and of material provided. [15]
3.15 The degree to which the penalties provide an appropriate `symbolic
statement' of society's view of the seriousness of the offences is canvassed
above.
Penalties are imposed by a court
3.16 It should be noted that the penalties under the Bill will be imposed
by a court and not by the Productivity Commission itself.
Imprisonment should be a punishment of last resort
3.17 In 1988, the Australian Law Reform Commission (ALRC) produced a
report on Sentencing. Having previously referred to the principle of “economy
in the use of imprisonment”, [16] the
ALRC went on to observe that:
- imprisonment is, and will continue to be, an important part of the
system of punishing offences;
- to remove imprisonment as a sanction would leave the criminal justice
system without a punishment of the degree of severity appropriate to
some crimes;
- however, the emphasis that the criminal justice system presently placed
on imprisonment as a punishment for offences must be reduced, [17] and more emphasis should be placed on
non-custodial sanctions; and
- the need to ensure an appropriate level of severity of punishment
implied that the range and severity of non-custodial sanctions available
to sentencers should be increased. [18]
3.18 The ALRC also stated that consideration should be given to eliminating
imprisonment as a sanction for some offences:
The Commission suggests that, of federal offences, social security
offences and taxation offences, especially where no systematic fraud
is involved, and some customs and quarantine offences should be reviewed
first for this purpose. These would be cases where non-custodial sentences,
including the fine and community service orders, would be more appropriate
than a prison term. Where systematic fraud is involved, fines may well
be the appropriate sanction, if set at an appropriately high level.
[19]
Imprisonment can only apply to individuals
3.19 A gaol sentence cannot, as a matter of fact, be applicable to a
corporation. It might be argued, therefore, that, in relation to legislation
that is directed principally at ensuring the compliance of corporations,
it might be more appropriate that the penalty provisions focus on corporate
liability and provide for a significant monetary penalty.
Practical considerations govern specified terms of imprisonment
3.20 The Committee was told that, for a number of essentially practical
reasons, as a matter of criminal law policy the minimum `base-level' sentence
that is now included in statutes (not necessarily that is imposed) is
6 months. If an appropriate sentence falls between 6 months and 3 months,
then it is better satisfied by a pecuniary penalty:
Even if you got your three months and you had not served any time on
the day that you were sentenced in court, the amount of time it takes
to process somebody through the state prison systems – by the time
you take off remission and time off for good behaviour – it means
that by the time they walk in the door, they have got to walk out. It
is just a waste of administrative effort to do it for that amount of
time. We take the view that if an offence is serious enough to warrant
a term of imprisonment then the minimum that we would impose is six
months. Either you have six months as a minimum now or you just have
a fine. [20]
3.21 It is against these principles, as well as the comparative penalties
set out in Chapter 2, that conclusions about the penalty provisions in
the Bill and comparable legislation should be drawn.
Footnotes
[1] Crimes Act 1914, s 16A(1).
[2] ALRC, Sentencing of Federal Offenders,
Interim Report, Report No 15, (1980), para 185.
[3] Transcript of Evidence, p 15 (Mr C Meaney).
[4] Transcript of Evidence, p 10 (Dr R Smith).
[5] Census and Statistics Act 1905, s
14. See also Commonwealth Electoral Act 1918, s 315(8), where provision
is also made for a continuing daily penalty of $100.
[6] ALRC, Sentencing of Federal Offenders,
Interim Report, Report No 15, (1980), para 194..
[7] Home Office, Sentences of Imprisonment:
A Review of Maximum Penalties, Report of the Advisory Council on the
Penal System, HMSO, London (1978), para 63.
[8] Crimes Act 1914, s 4D.
[9] Transcript of Evidence, pp 5-6 (Mr C Meaney).
[10] Transcript of Evidence, p 5 (Mr C Meaney).
[11] Joint Submission, p 5.
[12] Transcript of Evidence, p 12 (Dr R Smith).
[13] Transcript of Evidence, p 16 (Mr C Meaney).
[14] Joint Submission, p 12.
[15] Joint Submission, p 5.
[16] ALRC, Sentencing of Federal Offenders,
Interim Report, Report No 15, (1980), para 185.
[17] See also Stewart v Collins (1992)
58 SASR 291: courts should strive to find sentences which will keep people
out of prison if that is possible. The courts have said that “serious
frauds on the revenue will result in custodial sentences … [which]
will include a period actually be served”: R v Whitnall (1993)
42 FCR 512. However, certain mitigating circumstances may see even
such sentences wholly suspended: DPP v Carter [1998] VR 601.
[18] ALRC, Sentencing, Report No 44,
(1988), paras 40-41.
[19] ALRC, Sentencing, Report No 44,
(1988), para 59.
[20] Transcript of Evidence, p 14 (Mr C Meaney).