Sentencing Trends (Part I)

When sentencing convicted persons, Magistrates and Judges in Victoria apply a number of principles set out in the Sentencing Act 1991. In short, they are:

1. To punish the offender,
2. To deter the offender and others from similar offending,
3. Facilitate rehabilitation,
4. Denounce the offending, and
5. Protect the community

Deterrence of the offender and of the others in the community is often referred to as specific deterrence and general deterrence respectively. A common line of thinking, and one often argued by political parties come election time, is that harsher penalties (prison sentences) serves to heighten both specific and general deterrence – otherwise cited as a ‘tough on crime’ approach.

Whilst on its face the logic is reconcilable, the research and data shows that for specific deterrence at least, in reality harsher penalties are no more effective at deterring people from re-offending than other penalties.

A number of studies, conducted both in Australia and overseas, have concluded that not only do tougher sentences produced the same rates of recidivism (re-offending), in some cases they in fact increased rates. A study conducted in Washington DC perhaps exemplified these result best when it examined recidivism rates of similar offenders sentenced by nine different Judges who were allocated cases on a random (but sequenced) basis. It showed that between those Judges, the rates of incarceration varied from a low of 23% to a high of 65%. Ultimately that study found that “If anything, those who received sentences from harsher judges (ie those prone to handing out prison sentences) were more likely to recidivate (even though they had less time to do so)”.

It is argued that there are a number of reasons for the increase. These include that prisoners spending longer amounts of time incarcerated are in an environment where crime is seen as more acceptable, there is a decreased stigma of offending and they are associating with others who are likely to offend, learning skills and creating networks. Furthermore, difficulties in obtaining employment post incarceration can leave released prisoners without an income and stimulation.

One study also found that the types of sentences received impacted upon an offender’s attitude towards their punishment. Looking at similar offenders, those who were sentence to community service type orders were more likely to report that the decision was fair as compared with those who were imprisoned reporting that the sentencing judge had been unfair.

Further, the impacts of sentencing are never localised to the offender or their family. There is a significant cost burden to the State and taxpayers in operating our prison system. At present, the average prisoner costs the State approximately $100,000 per year, and our prison population is as high as it has ever been. During 2001/12 and 2009/10, Victoria’s recidivism rate trended downwards year on year to a low of 33.7%. However since then, this trend has reversed and in 2014/15 reached 44.1%, which itself included a jump of 5.5% over the previous 12 months.

This reversal can be explained by a number of legislative and attitudinal changes in the State. Firstly, the Adult Parole system underwent significant change during 2012 and 2013 after reviews into its operations by the Sentencing Advisory Council and Victorian Government (Callinan review). Importantly, the recommendations saw the Parole Board reverse the previous presumption that Parole should be granted in the absence of compelling reasons not to do so, on to the prisoner to make application to be considered. Ultimately this resulted far fewer prisoners, particularly those charged with serious offences, being granted Parole.

Secondly, over this period the State Government made two significant legislative changes. Though Suspended sentences have featured in the Victorian sentencing regime as far back as 1915, they were last reintroduced as an option in 1986. Before their most recent abolition, the use of suspended sentences peaked in 2009/10 with almost 5,700 wholly or partially suspended sentences imposed. In the year before their removal, they were used as often as prison sentences.

If you want to talk to a Criminal lawyer in Melbourne about any of the above, or for a free case assessment, please call us on 03 9034 7351 or email to

Tom Isaacs

Tom Isaacs

Bachelor of Laws with Honours - LLB(Hons)

Tom has been part of the firm for the past 10 years, working initially as a law clerk and now as a fully qualified Solicitor. He completed his Bachelor of Laws with Honours at Deakin University, and undertook his legal training at the Leo Cussen Insititute where he was president of his class. Tom appears regularly at Magistrates' Courts, both metropolitan and in regional Victoria.