A Not So Rational Philosophy: A Critique of the Penalties and Sentences Act 1992 (Qld)

Abstract

Like political and economic theory, theories of punishment come in waves. Fashions change. In the 1960s and into the 1970s utilitarian theories dominated penal philosophy: deterrence, prevention, and rehabilitation were the philosophies driving corrections policy. But then came a wave of retributivism that all but washed away the legacy of utilitarianism. "Just deserts" became the hope of the new retributivists who sought to ensure that offenders were treated with respect as autonomous free thinking individuals and punished according to a scheme of proportionality or tariff. In more recent years there has been a reaction against this individualist, desert-oriented retributivism. Some have sought to "connect" the offender with the community by facilitating the offender's penance or by ensuring that the aim of punishment is to promote social freedom or "dominion". Others have sought to return to the utilitarian philosophies of yesteryear invoking spirits of the past to bolster claims that only recently had been put to bed. The Queensland Attorney-General, the Hon Dean Wells MLA, championed the Penalties and Sentences Act 1992 (Qld) ("the Act") as "... derived from the rational utilitarian philosophy of protecting society and its members from harm". The Attorney-General sought to invoke John Stuart Mill as well as a bevy of contemporary authorities to support his philosophy. The implications of the philosophy for sentencing practice are neatly summarised in the Preamble to the Act: WHEREAS — ... 3. Society may limit the liberty of members of society only to prevent harm to itself or other members of society. This article examines the implications of this philosophy for the sentencing of offenders in Queensland. While on the surface this philosophy may seem progressive, or at least benign, it will be argued that if implemented this philosophy may have profound implications for sentencing policy in Queensland. First, the philosophy is not consistent with common law sentencing principles. Of itself, this is not critical. But the ill considered implications of the reform and the demonstrated misunderstanding of the principles of just deserts are cause for concern. Secondly, while it is conceded that initiatives were necessary to consolidate and reform the law relating to the sentencing of offenders, the "rational utilitarian philosophy" espoused by the Attorney-General and reflected in the Act is flawed. Not only is recourse to authorities such as John Stuart Mill highly problematic but the utilitarian philosophy underpinning the Act has distinct disadvantages in practice particularly as it relates to offences typically committed by the disadvantaged.