Proportionality in Sentencing
In the ever-changing field of criminal sentencing, it is worthwhile to return to first principles from time to time.
R v Clarke (1975) 61 Cr App R 320 is a case in point. The judgment may be approaching its 50th birthday, but its’ force has not diminished with the passage of time. A core sentencing principle is prominent — proportionality.
Ms Clarke was a mentally disturbed woman in her mid-20’s with a long history of relatively minor offences, who presented as violent and likely to cause further trouble if released into the community. She was convicted of damaging a flowerpot valued at £1. The Crown Court imposed a sentence of 18 months imprisonment for ‘the protection of the public’. In setting aside the sentence and imposing a fine of £2, Lord Justice Lawton of the Court of Appeal, England & Wales (Criminal Division) said:-
“The Judge and the Magistrates were of the opinion that it was their duty to protect both the public and the appellant from herself by passing a sentence of 18 months’ imprisonment. We have no doubt at all that they conscientiously felt that this was the best thing to be done. They fell into grave error in so thinking…The first thing to be said, and said very firmly indeed, is that Her Majesty’s Courts are not dustbins into which the social services can sweep difficult members of the public. Still less should Her Majesty’s judges use their sentencing powers to dispose of those who are socially inconvenient. If the Courts became disposers of those who are socially inconvenient the road ahead would lead to the destruction of liberty. It should be clearly understood that Her Majesty’s judges stand on that road barring the way. The Courts exist to punish according to the law those convicted of offences. Sentences should fit crimes.”
Some offenders present an intractable problem for the criminal justice system, for which there are no entirely satisfactory solutions. The outcome of these cases can incur the anger and resentment of the majority.
Nevertheless, a sentence must be commensurate with the seriousness of the offence. In most circumstances, a sentence of imprisonment is a last resort. It is wrong for previous convictions to inflate a sentence beyond that which is proportionate. There is no warrant in Australia to impose a sentence of preventative detention.
Lawyers, as part of the system, must be prepared to insist upon respect for these fundamental principles. History shows that we cannot be selective about the granting or upholding of the rights which people have.