Parliament Passed Legislation On Sentencing Criminology Essay

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However, the legislation governing sentencing is the Criminal Justice Act 2003. The purposes of sentencing are set out under s.142 which states that: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:

the punishment of offenders,

the reduction of crime (including its reduction by deterrence),

the reform and rehabilitation of offenders,

the protection of the public, and

the making of reparation by offenders to persons affected by their offences [3] 

The aim of sentencing are: retribution; deterrence; rehabilitation; the protection of the public/incapacitation; desert theory; reparation. All aims can be distinguished it depends on what they wish to achieve [4] .

Retribution deals with the idea that offenders deserves to be punished. Retribution also satisfies the feeling for hatred and the need for hate. However an expression found in retribution is the idea of ''an eye for an eye, a tooth for a tooth" justice which is found in Lex telionis [5] . Furthermore in the case of Sergeant, [1974] [6] , where Lawton LJ stated that: "The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass", this in other words means that an offender should be punished according to his or her offence.

Furthermore, this notion was seen in the White Paper "Crime, Justice and Protecting the Public" (1990), which aim was to ensure that convicted criminals receive their 'just deserts'. However the idea of this aim was based the Tariff sentencing which imposes a penalty for each offence. The impression of "Just Deserts" stands out from the other aims, because it is a rational for the imposition of sentences [7] . For a sentence to be equal to a crime it has to be proportionate to the gravity of the offence. Hudson (1987: 138) sets out five prepositions of Just Deserts: proportionality of punishment to crime; determinate sentences; an end to judicial and administrative discretion; an end to disparity in sentencing and protection of rights through due process. In addition to this von Hirsch (1976: 47) states that: "when someone violates another's rights, he gains an unfair advantage towards others since he failed to constrain his own behaviour while benefitting from another's right, punishment restores an equilibrium" [8] .

Furthermore, the 1990 White Paper and other legislative reforms in the 1991 Act gave importance to Just Deserts and concluded that just deserts should be the primary principle for sentencing decision in the England and Wales [9] . However, the government states that "it is objective is to reduce crime but sentencing process should not be over stated … it is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculations [10] ".

Therefore, the concept of just deserts seeks to preserve human dignity through punishment and also declares that an individual has a free will to make moral choice whether or not to involve in activities which are prohibited. However retribution under this principle treats an offender by responding to his or her conduct in a manner that would respect his or her choice to be involved in that offence [11] . This concept varies from the utilitarian theories of rehabilitation and deterrence.

Deterrence is another aim of sentencing and is based on the consequentialist [12] .Its main objective is to reduce crime through the fear of punishment [13] .Bentham established the two types of deterrence which can be general and individual. Individual deterrence aims to deter a particular person who may be contemplating committing a crime and general deterrence is to deter other people from committing the same kind of offence. It was said that severity and certainty of punishment are more likely to produce deterrent benefits, by increasing the certainty of punishment persistent offenders may be deterred by the risk of fear and the severity of punishment will allow offenders to weigh the consequences of their actions and conclude that the risks of punishment are too severe [14] . Furthermore, a system that favours individual deterrence would increase sentences for persistent wrongdoers, on the assumption that if non-custodial penalties fail to deter then custodial must be tried [15] .

In R v Blackshaw [16] the Court of Appeal concluded that it is inappropriate for Crown Court judges to "issue, or appear to be issuing, sentencing guidelines." And later commented that is a task for the Court of Appeal and the Sentencing Council - and the court and council have a relationship of "mutual respect and comity" [17] . More points were raised in the case of Storey [18] where he was incarcerated for twenty years for his offence. Robbers did not seem quite affected by the sentence in Storey in fact the rate of reported robbery increased even before the trial. Thus this case shows effects of general deterrence [19] . The problem with deterrence is that it assumes that human beings are rational individuals who acknowledge the consequences of their behaviour before committing an offence. For example the issue of drug and alcohol, it would be unlikely that people under the influence of such would be deterred because the offenders did not consider the pros and cons of their actions [20] . However the White Paper shows awareness of the deficiencies of deterrence as a sentencing aim [21] .

Rehabilitation seeks to help the offender's future behaviour through treatment strategies. During the twentieth century scientist believed that criminal were in need of treatment instead of being punished for their crime [22] . This system was particularly benefitting for drug and alcohol users. Rehab is used to help offenders to acknowledge that their behaviour is undesirable. This approach is also linked with those forms of positivist criminology which seeks the cause of criminality, where as deterrence regards offender as rational and calculating [23] . Raynor and Robinson (2005 9-11) argue that rehabilitation is seen as an essential principle of punishment and seen as an 'antidote' [24] .

Furthermore, the Ministry of Justice Structural Reform Plan in July 2010 committed to introduce a 'rehabilitation revolution' , this plan aimed to break the destructive cycle of crime and protect the public , through more effectively punishing and rehabilitating offenders and reforming the sentencing framework. In response to the plan they launched a consultation (The Green Paper) named: 'breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders' [25] .

This Green Paper sets out how the aim would be achieved, based on four principles: protecting the public; punishing and rehabilitating offenders; transparency and accountability; and decentralisation. The Ministry of Justice is willing to reduce spending to return the country to economic growth. This would be achieved through major focus on the protection of the public by rehabilitating criminals and preventing them from committing future crimes. As a result it should cut the amount of crimes committed, a reduction of money spent on the criminal justice system and there will be payback to the victims. This will mean local communities will be safer [26] .

However it seen that the protection of the public is an important factor in the criminal justice system process. As a result, common method of protecting the public would be and putting a stop to offenders from future crimes, the Prevention of Crime Act 1908 s.10 grants an addition of 5-10years of detention to 'Habitual Criminals' for their current offence and with regards to drug trafficking the Crime (Sentences) Act 1997 provides a minimum sentence and for some serious offence a mandatory life sentence [27] 

Incapacitation was recognized in the Powers of Criminal Courts (Sentencing) Act 2000 and also the 2003 Act s. 225-229 which is now amended by the LASPO Act 2012 and states that: "the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences [28] ". An example would be the case of R v Johnson [29] , the Court of Appeal relies on the judgement in Lang [30] held: that the sentence for public protection would concern the future risk and the future protection of the public, and not with punishing the present offending [31] .

However problems with incapacitation would be the fact that it is disproportionate which allows the sencenters to replace judicial reasoning with rough treatment. Also it is said that there are no experimental evidence to suggest that such this system could reduce the amount of offenders committing crime. Finally the 'three strikes and you are out ' still underpins the polices in the UK which was enacted by the United States and enables the courts to impose harsher sentences on offenders convicted for three or more offences. Like the minimum sentences for third time burglars, drug traffickers, for possession of firearm and dangerous sentences in the 2003 Act [32] . Thus the Halliday Report came to a conclusion that the incapacitation system had no impact in the sentencing framework [33] .

Lastly reparation aims to compensate the victims through a financial payment. Further it aims to bring an apology and the offender is instructed to make financial compensation to the victim or to the society to ensure that the crime is not committed again. With this, Lucia Zedner states: "Criminal Justice should be less preoccupied with criticizing offenders and focus more on restoring or repairing and individual damage [34] ". Some commentators have been sceptical in addressing the restoration system. They argue that this system is not appropriate for serious violent offences and it is unlikely that an offender can make any significant reparation.

In conclusion, all together the purposes of sentences are aimed in reducing crime. However these theory stands out but there are still some support for each rational with regards to some cases. Although the 2003 Act and the Green Paper proposes to punish offenders and protect the society reducing the rate of offences there has been no evidence. However the Green Paper is yet to be implemented. The Halliday Report states that: "The gradual erosion of the approach set out in the Criminal Justice Act 1991, with its emphasis on linking punishment to the seriousness of the offences under sentence, and the resulting muddle, complexity, and lack of clear purpose or philosophy, are further grounds for reform [35] ". Thus there is still a lack of consistency. With regards to 'consistency' Ashworth concluded that consistency would be possible only if a primary rationale is declared and circumstances are clear. This approach was accepted by the Swedish statute which now adopts 'deserts' as primary rational.