In recent times, there has been a focus on the opinion that penalties for criminal offenders in Western Australia have become 'soft'. To better examine the validity of this view, firstly, a definition of penalties and offences is required. Penalties is defined by the Maquarie Dictionary, as a punishment imposed or incurred for a violation of law or rule1, while an offence means an offence against a law of Western Australia, the Commonwealth, another State or a Territory, as set out in the Western Australian Criminal Code Act Compilation Act of 1913. Secondly, a comparison of the attitudes and penalties of 19th Century England as opposed to modern Western Australia (“WA”) is of assistance. Although there is a considerable difference between the attitudes and penalties of 19th century criminal law in England to those of today in WA, the context of each society must be taken into account. The laws, rules, and societal expectations, including culture and the importance of economic status, are considerably different between each society, and thus reflect the differences in attitudes towards, and punishment for, breaking the law. For example, the tolerance of petty crimes is far lower in 19th Century England than it is today. Accordingly, punishments for crimes in general were stricter; such as the frequency of use of capital punishment for a range of crimes in the beginning of that era. In order to explore the view that the current Western Australian penalties for offenders are 'soft', one must examine the effects that capital punishment had historically on society, along with the recent changes to mandatory sentencing and homicide laws.2 The greater focus on the rehabilitation of the individual in modern times can be compared and contrasted with the need to satisfy the community's need for protection. It could be argued that the changing view of the purpose of punishment has resulted in a greater flexibility in the choice of sentencing for judges, which can be interpreted as that penalties for crimes are getting 'soft'. Examining the types of offences, the types of punishments, and the criminal court system as a whole, with respect to both 19th century England and 21st Century Western Australia, can assist in determining whether the current media opinion of 'soft' penalties in WA is one that has been made accurately.
SUMMARY CRIMES
A summary offence, as defined by the Western Australian Criminal Code (“the Code”)3, is an offence that is tried otherwise than on indictment. Summary crimes are usually tried in Magistrates courts and (can) result in less severe penalties than those on indictment (such as a fine as opposed to a term of imprisonment). One prominent contemporary example of the changes over time in regards to the attitudes and penalties for summary crimes, is that of a young boy given household chores for punishment for being convicted of a graffitti offence, 4 as opposed to community service work. The magistrate in question in the article, Mr Vose, has expressed criticism of the current judicial system, stating that punishments were “too light”. This opinion, that “the price to be paid...is not very much”5, has shown to be reflected by the media. This view becomes more persuasive when the attitudes towards summary crimes of today and those of 19th Century England are compared. For example, the theoretical situation as presented by Dickens in Sketches by Boz, puts forth a situation in which a young boy is charged and convicted of pickpocketing, and sentenced to 7 years transportation; transportation was an alternative to the death penalty; it meant that convicts were sent to live and work in a colony of England such as America or Australia.6 Such a punishment, that of being sentenced to work in a colony, was not uncommon for what we would now view as a minor crime (such a stealing a loaf of bread), although it was argued that its central problem was that it did not reform convicts.7 It can be argued, without the acknowledgement of any socioeconomic or cultural differences between the youths, that the punishment towards petty crime in 19th Century England was far harsher then than it is now in 21st Century Western Australia.
Alternatively, another example of the puportedly 'soft' response to criminal offences, is a recent case where a 13 year old girl received no jail sentence for repeatedly punching a woman in the head, (May 2008), 8 in which the woman in question died the day after. The girl received a 6 month community based order. It could be argued that under new legislation,9 the girls' indirect involvement in the womans death, (through her “mild concussion” probably caused by being knocked to the ground after the assault), means she is criminally responsible for the death, and liable to imprisonment for 10 years. In this situation, it could be argued that it is not the penalties that have become soft, but rather the degree of flexibility in sentencing have caused the softening of the treatment of offenders, as well as the reliability of the justice system in handing out appropriate punishments, such as with the boy convicted of the graffiti charge mentioned previously. Ultimately, 'soft' penalties under Western Australian Criminal Law have been under the media spotlight in recent times. A comparison of penalties with 19th Century England as opposed to now can assist in verifying whether this opinion of criminal law penalties is justified.
INDICTABLE OFFENCES AND PUNISHMENTS
An indictable offence is one that is dealt with by a judge and jury in a District or Supreme Court. Some of the more minor indictable offences can be dealt with summarily by a Magistrate, due to the provisions made for a summary penalty in the relevant section of the Criminal Code.10 Some examples of (major) indictable offences include murder, treason, and armed robbery, while lesser indictable offences include assault occassioning bodily harm or stealing . The penalties for indictable offences have changed considerably from 19th Century England; for example, the prevalence of imprisonment for charges of assault, and the combination of alternative punishments, e.g. fines and whipping, at that time was rather frequent for a range of offences. The use of coporal punishment continued well into the 19th Century, but gradually declined until it was abolised by the end of the century. Although historically (as a colony of England), Western Australia used corporal punishment, it currently does not feature it as a penalty. The range and frequency of use of penalties in 19th Century England evolved from harsh penalties such as death or corporal punishment, towards an empahsis on imprisonment as a method of deterrence and reform.
Murder and Manslaughter
Penalties for offences are as varied as the crimes themselves, and are used for a number of reasons. In 19th Century England, the death penalty was orginally a mandatory punishment for those convicted of murder and manslaughter, and was often also given for those convicted of lesser offences, such as theft.11 Despite this, death sentences were irregularly carried out, due to mitigating circumstances being plead by the accused, or the sentence being transferred by the judge. Gradually, the death penalty became to be used less and less over the course of the century, evolving from being used for the most serious offences, until it was only murder and High Treason.12 This history of the use of the death penalty for a number of offences would have had an effect on society; meant as a deterrent, executions often became a public spectacle, until they were transferred inside the prisons. This frequency of use of the death penalty, along with harsh convictions such as years of transportation for convicts, is one reflection of the attitudes towards crime in 19th Century England, and is considrably different to the current approach taken by the judiciary in Western Australia. The regularity of offences being dealt with summarily and the ability of judges to acknowledge mitigating circumstances in sentencing means that the current judicial system is viewed as less rigid, and could be said to influence the current opinion on the media that penalties have become 'soft'.
The use of capital punishment was abolished in Western Australian in 1983, the last execution occurring in 1964 (NSWCCL). It has been argued that the death penalty should still be used in particular cases; one example is that of serial killers, who, (as previously) convicted of willful murder, would only receive 20 years.13 Under new legislation, however, life imprisonment is given unless the judge feels that the sentence is unjust or the person in question would no longer be a threat to the community once the sentence has been served (in which case they would be given 20 years)14. One opinion is that the current flexibility in sentencing provides challenges for judges, and the sentence given for those convicted for murder may not always be appropriate. As reported in the West Australian Newspaper of 02 August 2008, judges have been “cast adrift upon a sea of discretion”15. Currently, the penalty for murder is a life sentence of a minimum of ten years, up to 'never to be released', and along with 279.4 of the Criminal Code (in which, as previously stated, certain mitigating circumstances means the offender can be charged with 20 years instead of life), gives the judge a wide range of options for sentencing. As previously stated, it can be said that this flexibility in sentencing has influenced the opinion that penalties for crime in Western Australia have become 'soft'.
SOCIETY
The conflict between police and courts
An alternative interpretation of the reasons behind the focus on 'soft' penalties is that there is a conflict between branches of the justice system. For example, as in the article presented by the WA Police news in 2006, 'Judiciarys soft sentences degrade Police authority'16, the opinion is that sentencing does not “reflect societies values and expectations”, and has previously even required law makers to “intervene”. This apparent conflict between the courts and police has brought into question the emphasis on rehabilitation for offenders, and whether rehabilitation for “these people” who have a “previous history” would be successful, as stated by WA Police Union President Mike Dean in August 200817. Essentially, the current approach of the judiciary for sentencing is one of rehabilitation and reform of offenders18, and thus would influence the opinion that penalties are getting 'soft' in Western Australia.
The effect of culture and socioeconomics on punishment
The context of culture and society in 19th Century England must be included in any examination of its legal system, particularly in respect to punishments. For example, until 1827 many offenders were able to receive benefit of clergy; that is, if they could prove affiliation with a church (usually by reading a verse in the Bible), they were given no punishment except a branding on the thumb, and then handed over to the Church for them to deal with. Women who were pregnant were able to plead a respite from the death penalty until the child was born; however, concerns about the cost of raising the newborn meant that the mother was usually pardoned19. Differences in socioeconomic positions had a rather substantial effect; for example, England's Poor Laws, that regulated the movements and actions of those of a low(er) socioeconomic status20.
The significant part that socioeconomic status played in the legal system in England is comparable with the approach traditionally taken by that of Western Australia, where the court system is designed to be accessible to all, regardless of percieved status.. Although each court system originates from a Christian background, due to the transportation of the English Legal system because of the origins of Australia as an English colony; Western Australia began as a primarily convict settlement, and thus began with a system of martial law. These form the essential differences and similarities between the two court systems in time; their shared origin, and their differing approach to socioeconomic status.21
IN CONCLUSION
Ultimately, the view that penalties for breaking the law in Western Australia have become 'soft' is justifiable. In order to validate it, exploration of the history of of the attiudes towards criminal law is necessary, in order to compare the evolution of the justice system as a whole. For example, the vast difference between the criminal law system of 19th Century England as opposed to modern Western Australia, along with the differences between the social and cultural situations of the time, provides an insight into how this opinion can be formed. For example, the differences between the punishments for what are now classified as summary offences, would have resulted in the death penalty or corporal punishment in the early 19th Century. Currently, the flexibility in sentencing means that judges may take into account mitigating circumstances, putting emphasis on the rehabilitation into the community and reformation of the individual, as opposed to simple deterrence. Recent reports of cases where an offender has received a lesser or no sentence for an offence that would traditionally mean liability for imprisionment, such as for assault as previously referred to in articles featured in the West Australian and the WA Police News, have revealed a general opinion that the judicial system is not keeping up to date with societys' expectations. In conclusion, particularly when taken in comparison with both its history and that of 19th Century England, the attitudes and penalties towards breaking the law in contemporary Western Australia can justifiably be viewed as 'soft'.
1The Maquarie Dictionary, (Revised 3rd Edition, NSW: The Maquarie Library Pty Ltd, 2003)
2Criminal Law Amendment (Homicide) Act 2008 (WA),
3Criminal Code Act Compilation Act 1913 (WA)
4 Christiana Jones, ''Graffiti Boy Told to do Household Chores for Punishment', The West Australian, 20 August 2008, 16.
5As above.
6Charles Dickens, Sketches By Boz, 1836.
7Note: Transportation was theoretically abolished by the Penal Servitude Act of 1857, as cited in Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online
8Christiana Jones, 'No Jail for Assault on Tragic Mother', The West Australian, 06 August 2008, 7.
9Criminal Law Amendment (Homicide) Act 2008
10Law Reform Commission of Western Australia, Summary trial of Indictable Offences - 30th Anniversary Reform Implementation Report (2002)
,http://www.lrc.justice.wa.gov.au/2publications/summaries/P06.PDF> at 15 September 2008.
11Old Bailey Proceedings Online, Trial of Henry Woodman – Theft (1800), <http://www.oldbaileyonline.org/browse.jsp?id=t18000115-3&div=t18000115-3#highlight> at 27 August 2008.
12Offences Against the Persons Act 1861, (UK), as cited in: Emsley, Hitchcock and Shoemaker, Punishments at the Old Bailey: Late 17th Century to the early 20th Century. (See above).
13Stateline Western Australia, Serial Killers death brings relief to survivor (October 2005), <http://www.abc.net.au/stateline/wa/content/2005/s1478583.htm> at 15 September 2008.
14Criminal Law Amendment (Homicide) Act 2008 (WA).
15 Roy Gibson, 'Judge Sees Challenges in New Murder Laws', (02 August 2008), The West Australian,12.
16 Kevin McDonald, 'Judiciary's soft sentences degrade Police authority', (August 2006) WA Police News
17David Darragh, ' Cop Basher's Sentence Shows Judges Let Police Down: Union', (06 August 2008), The West Australian, pg 3.
18As previously mentioned, with the assault on the mother resulting in community service, written in the West Australian article of 06 August 2008.
19Emsley, Hitchcock and Shoemake, Punishments at the Old Bailey: Late 17th Century to the early 20th Century, Old Bailey Proceedings Online
20Poor Law Amendment Act 1834 (England).
21Note: One point that could perhaps be considered important, is each respective societies reaction to reformed criminals. For example, convicted criminals were traditionally branded (for different) reasons so that they could be easily identified, while in contemporary times those who have served their sentence are not required to disclose their spent convictions.
