In historic cases, punishment alone is not always the best response to violent crime

Sentencing offenders for crimes committed many years earlier raises important questions about what purpose sentences in such cases are expected to achieve.

In sentencing, a judge would usually consider the four main purposes of punishment: rehabilitation, deterrence, incapacitation and retribution. But in historic cases, the sentence’s potential to rehabilitate, incapacitate or deter is largely insignificant. This leaves the focus solely on retribution.

What are sentences for?

A New South Wales court recently sentenced Robert John Hall to five years’ jail, with a non-parole period of 12 months, for rape offences he committed in 1990. The sentence’s apparent leniency has attracted criticism.

The judge referred to several factors, but his sentencing decision gave most weight to the character Hall had displayed in the intervening 27 years in his family, employment and, by way of his involvement in voluntary work, in wider society.

The judge accepted Hall was already rehabilitated, so did not need to give any weight to the potential rehabilitative effect of any sentence he imposed.

Incapacitation is often a factor in sentencing, particularly if a judge feels that society needs to be protected from someone.

In historic cases, however, incapacitation becomes less relevant. When a person has spent decades living in society without offending, it cannot reasonably be argued they need to be locked up so society can be protected from them.

Sentences are sometimes justified by their perceived deterrent effect both specifically on the person in question, and generally on society.

There’s no argument that specific deterrence is required for someone who has already not offended for a considerable period of time. But the general deterrence argument is more complex.

Potential offenders are more likely to be deterred by the likelihood of detection than by the severity of a punishment. That an offence can still lead to detection and conviction years (or even decades) later is what’s most likely to deter others – not the details of a particular sentence.

This leaves the retributive purpose of a sentence, and the question of how much punishment is appropriate in a particular case.

The argument that an offence should attract some retribution is generally not seen to need any further justification. But any punishment imposed is expected to be proportionate and appropriate. This is difficult to achieve in practice, but is intuitively understood.

The sentence in the Hall case has attracted considerable criticism and anger, suggesting there is a strong public desire to see such offences dealt with severely even after many years.

The outrage is entirely understandable, particularly when the rate of sexual assault remains so high and the conviction rate is disturbingly low. It is vital to send a strong signal that society abhors such violent acts and stands with the victim.

However, it is by no means certain that imposing punishment is the best or only mechanism to send this signal.

Although punishment has a part to play in building society, it should not be the primary approach. If we simply expect a sentence’s length to be the sole way of conveying our distaste for an offence then we will acknowledge the harm but do little, practically, to remedy it.

It is also not easy to specify exactly what length of sentence might be enough to convey sufficient opprobrium for such a horrific, violent attack.

A way forward

There is another purpose of sentencing that can be considered – that of restoration. This is a process where the offender, victim and other community members affected by the crime participate actively in its resolution.

We know little about how victims respond to these historic cases being dealt with. In the Hall case, the court rightly went to considerable efforts to preserve the victim’s anonymity. The anger at the sentence might have been partly assuaged if the offender had shown genuine remorse and taken steps to make it right with the victim.

Regardless of the standing someone has in their community or family, it is difficult to be convinced that they have been rehabilitated without a statement or act of remorse to his victim.

An apology, an offer of compensation, a genuine gesture to show that the harm caused had been understood might not be a sufficient outcome in itself. But it could go a long way to demonstrating genuine rehabilitation, and that an offence could be consigned to the past.

Restorative approaches are not easy or perfect, but they can provide hope for society and, particularly, for those harmed by a specific offence. Seeking to restore can be more productive than simply expecting that imposing a particular amount of punishment will be a sufficient response to an offence.