Imprisonment (VCE SSCE Legal Studies): Revision Notes

Imprisonment

Imprisonment is the most serious sanction available in the Victorian criminal justice system. As the sanction of last resort, it represents the most severe punishment that can be imposed following the abolition of the death penalty in the twentieth century. This revision note explores what imprisonment involves, the different types of prison sentences, and how imprisonment achieves key sentencing purposes.

What is imprisonment?

Imprisonment is a sanction that involves removing an offender from society for a stated period of time and placing them in prison. When someone is sentenced to imprisonment, they lose their freedom and liberty, being physically separated from the community.

Current imprisonment statistics

Prison term levels

Victorian law categorises imprisonment into nine levels, ranging from the most serious (Level 1) to the least serious (Level 9). Understanding this hierarchy is crucial for grasping the severity of different offences.

Level	Maximum term	Sample offences
Level 1	Life imprisonment	Murder Trafficking in a drug of dependence (large commercial quantity)
Level 2	25 years	Manslaughter Rape Sexual penetration of a child under 12 years Armed robbery Aggravated burglary Arson causing death
Level 3	20 years	Intentionally causing serious injury Culpable driving causing death
Level 4	15 years	Recklessly causing serious injury Handling stolen goods Trafficking in a drug of dependence (not commercial quantity) Arson
Level 5	10 years	Threats to kill Indecent assault Theft Negligently causing serious injury Knowingly possessing child pornography
Level 6	5 years	Recklessly causing injury Possession of a drug of dependence (for trafficking)
Level 7	2 years	Going equipped to steal
Level 8	1 year	Cultivation of a narcotic plant (not for trafficking) Possession of a drug of dependence (not for trafficking)
Level 9	6 months	Concealing the birth of a child

Life imprisonment

Life imprisonment means imprisonment for the term of the prisoner's natural (entire) life. This is the most severe sentence available and is reserved for the most serious offences, particularly murder. Offenders sentenced to life imprisonment may never be released from prison.

Magistrates' Court limitations

Time on remand

Remand refers to the situation where an accused person is kept in custody while awaiting their criminal trial. Any time spent on remand is typically counted toward the final sentence if the person is convicted. This ensures offenders receive credit for time already served in custody.

The parole system

Parole is the supervised and conditional release of a prisoner after they have served the minimum period of imprisonment. It allows prisoners to serve part of their sentence in the community under strict supervision rather than remaining in prison for the full term.

Non-parole periods

A non-parole period is the minimum term a prisoner must serve before becoming eligible for parole. The rules differ based on sentence length:

After the non-parole period, the Adult Parole Board reviews the prisoner's suitability for conditional release into the community. The Board considers factors such as the prisoner's behaviour, rehabilitation progress, and risk to community safety.

Parole conditions and rejection

Parole comes with attached conditions that the offender must follow (such as regular reporting, residence requirements, or participation in programs). If parole is rejected or no non-parole period is set, the prisoner must serve their full sentence in custody. For some offenders, this means they will never be released from prison.

Types of prison sentences

Concurrent sentences

A concurrent sentence is served at the same time as another sentence. This is the most common approach when an offender is convicted of multiple offences.

Concurrent sentences are the default approach in most cases, recognising that the overall criminality may not warrant drastically extended imprisonment.

Cumulative sentences

A cumulative sentence is served consecutively - one after the other. Using the same example above, if the sentences were cumulative:

When cumulative sentences must be imposed

Indefinite sentences

An indefinite sentence is a term of imprisonment with no fixed end date, reserved for the most serious offenders. This type of sentence can only be imposed by the Supreme Court or County Court (not by the Magistrates' Court).

When indefinite sentences can be imposed

Indefinite sentences apply to serious offences including:

• Murder
• Manslaughter
• Child homicide
• Threats to kill
• Rape
• Kidnapping
• Armed robbery
• Sexual offences involving children under 16

Review and discharge process

Indefinite sentences are reviewed periodically by the court. The offender can only be released if the court is satisfied (again, to a high degree of probability) that they are no longer a serious danger to the community.

If discharged from an indefinite sentence, the offender must complete a 5-year reintegration program administered by the Adult Parole Board. Both the offender and the Office of Public Prosecutions (OPP) can appeal decisions to discharge or not discharge an indefinite sentence.

Case study: R v Shoma (No 2)

Sentencing purposes of imprisonment

Imprisonment can achieve most sentencing purposes, though the extent to which each purpose is achieved depends on various factors. The primary purposes are punishment, protection, deterrence, and denunciation, though rehabilitation can also be achieved in some circumstances.

Punishment

Imprisonment achieves punishment through its inherently punitive nature - removing an offender's freedom and liberty represents a significant penalty. The loss of freedom itself is the punishment.

Factors affecting punishment:

Length of imprisonment term:

• Longer prison terms impose greater restriction on freedom and therefore deliver greater punishment
• However, even short periods can be highly punishing due to the complete loss of liberty
• The punitive impact is not purely proportional to time served

Offender's circumstances:

• Courts recognise that punishment may not be achieved for offenders who cannot understand or appreciate the punitive nature of imprisonment
• For example, an offender with severe mental disability who cannot comprehend why they are in prison may not experience the sentence as punishment
• This doesn't mean they won't be imprisoned, but it affects how the purpose is weighted

Specific deterrence

Specific deterrence aims to deter the individual offender from committing further crimes. Imprisonment can achieve this by making the offender experience the consequences of their actions and discouraging them from wanting to return to prison.

Factors affecting specific deterrence:

Length of imprisonment term:

• Longer sentences may create a stronger desire to avoid returning to prison
• However, the relationship is not straightforward - the impact depends heavily on the individual offender

Offender's circumstances:

• Mental disability or inability to understand the nature of imprisonment may prevent specific deterrence from being achieved
• If the offender cannot connect their offending with the punishment, they cannot be deterred
• An offender's attitude toward imprisonment also matters - some may not be deterred despite experiencing it

Nature of the imprisonment experience:

• Research suggests time in prison can sometimes normalise violence and reinforce criminal behaviour
• Exposure to negative influences or learning "criminal skills" in prison can undermine specific deterrence
• Traumatic and disruptive prison experiences may have complex effects on future behaviour
• If the offender associates with other criminals or experiences violence, they may be more likely to reoffend

General deterrence

General deterrence aims to deter the wider community from committing similar offences by demonstrating the consequences. The seriousness of imprisonment as a sanction sends a message to potential offenders about what will happen if they commit crimes.

Factors affecting general deterrence:

Circumstances of the offender:

• General deterrence may not be appropriate if the offender has unique circumstances that make the sentence non-representative
• For example, if the offender has a particular illness or the offending occurred in highly unusual circumstances, others may not see it as relevant to them
• The sentence must be relatable to potential offenders to deter effectively

Length of the sentence:

• Longer sentences typically send a stronger deterrent message to the community
• They signal that society treats particular offences very seriously
• However, the sentence must be publicised and understood by the community to deter effectively

Communication to the public:

• General deterrence only works if people know about sentences and understand what behaviour they prohibit
• Media reporting and public awareness of sentencing outcomes are crucial
• If sentences are not communicated effectively, their general deterrent effect is minimal

Denunciation

Denunciation involves the community expressing disapproval of the offender's conduct. By imposing imprisonment and taking away liberty, the court sends a strong message that particular behaviour is unacceptable and will not be tolerated.

Factors affecting denunciation:

Length of the sentence:

• Longer prison terms send a stronger message of condemnation
• Shorter terms, particularly those fully served through time on remand, may send a weaker message
• The community perceives severity through sentence length

Communication of the sentence to the public:

• Like general deterrence, denunciation requires public awareness
• Sentences must be communicated in ways that help people understand why certain behaviours are condemned
• The reasoning behind sentences matters - courts often explain why particular conduct deserves strong denunciation
• Media reporting plays a crucial role in conveying society's condemnation

Rehabilitation

Rehabilitation aims to address the underlying causes of offending and reform the offender so they do not reoffend. While the custodial nature of imprisonment can make rehabilitation challenging, it can be achieved in some circumstances.

Factors affecting rehabilitation:

Programs available:

• Rehabilitation depends heavily on tailored programs that address individual needs
• Programs promoting family connection may be effective, as research shows family and community involvement improves outcomes
• Program availability varies between prisons and for different types of offenders
• Quality and appropriateness of programs matter more than mere availability

Offender's willingness to participate:

• Voluntary participation is essential for rehabilitation
• Forcing someone to participate rarely addresses underlying causes of behaviour
• An offender who genuinely wants to change has better prospects of rehabilitation
• Remorse and acceptance of responsibility are positive indicators

Offender's prospects of rehabilitation:

• Courts assess and comment on prospects during sentencing
• Factors like criminal history, remorse, and personal circumstances provide indicators
• Lower prospects don't mean rehabilitation is impossible, just less likely
• First-time offenders generally have better prospects than repeat offenders

Offender's addictions:

• Willingness to address drug or alcohol addiction is crucial
• Unaddressed addiction significantly lowers rehabilitation prospects
• Access to addiction treatment programs in prison varies
• Past issues with drugs being available to prisoners complicate rehabilitation efforts

Length of the sentence:

• Very long "crushing" sentences may diminish rehabilitation prospects by creating hopelessness
• Shorter terms may allow greater focus on rehabilitation and less time in negative custodial environments
• However, sentence length must be appropriate to the offence - rehabilitation cannot override other purposes
• Short non-parole periods can incentivise prisoners to engage with rehabilitation programs

Protection

Protection is achieved by removing dangerous offenders from society, preventing them from harming the community while imprisoned. However, long-term protection requires more than just physical separation.

Factors affecting protection:

Length of the sentence:

• Society is protected while the offender remains in custody
• Longer sentences provide extended protection from dangerous individuals
• Indefinite sentences offer ongoing protection when offenders remain a serious threat
• Shorter sentences provide only temporary protection

Circumstances of the offender:

• Assessment of whether protection is needed depends on the offender's characteristics
• Factors like extensive prior convictions, unwillingness to engage with treatment, and nature of offending indicate ongoing risk
• Offenders who show no remorse or refuse rehabilitation may pose continuing danger upon release
• The type of offence matters - violent offenders may require different consideration than property offenders

Treatment and rehabilitation of the offender:

• Long-term community protection is best achieved through successful rehabilitation
• If offenders address the causes of their offending, they are less likely to harm others after release
• This depends on program availability and offender willingness to participate
• Drug addiction issues must be addressed - past problems with drugs in prisons have undermined treatment efforts
• Some prisoners targeted for drug testing have returned positive results, indicating drugs remain available

Remember!