Publication:Sea Talk Spring 2005/The principles of sentencing

As part of the Sea Change raft of initiatives to improve the lot of those serving in the RAN, Command and Fleet Legal Officers have put pen to paper to explain why different COs give differing levels of punishment for similar offences.

By CMDRs Peter Bowers and Rob McLaughlin and LEUT Paul Kerr

Sentencing is the generic term commonly used to describe the process of imposing punishment upon a person who is convicted of an offence before either service tribunal (eg Captain's table) or civilian court.

When considering what might be an appropriate punishment for a convicted person, service tribunals consider:

• Deterrence which comes in two forms: specific deterrence, which aims to dissuade an offender from committing further crime; and general deterrence, which aims to dissuade others, who become aware of the punishment inflicted upon the offender, from committing crime.
• Rehabilitation/protection of society - encourages positive change in an offender's behaviour and helps protect the interests of society more broadly.
• Justice and parity - the notion that justice should be done and be seen to be done in as consistent a manner as is possible in all the circumstances.
• Retribution - the notion that a person convicted of a crime ought to incur the punishment that he or she deserves.
• The need to maintain discipline in the Defence Force.

The Defence Force Discipline Act 1982 (the DFDA) contains the range of punishments which can be imposed by a service tribunal.

The maximum punishment for an offence is specified in the provision creating that offence, but is also limited by the nature of the service tribunal involved and the rank of the convicted person. All punishments available to service tribunals are found in Schedules 2, 3 and 3A to the DFDA.

The punishments available range from the imposition of a reprimand through to detention for 42 days (for Commanding Officers sitting as Summary Authorities) and up to dismissal from the Defence Force and imprisonment (for Defence Force Magistrates and courts martial).

While each service offence has a legislated maximum punishment, no 'minimum' punishment is prescribed or suggested.

The minimum punishment that any service tribunal can impose upon a Defence member who has been convicted of a service offence, and who is not undergoing a period of detention, is a reprimand.

However, instead of imposing any punishment at all, a service tribunal may instead make an order that the conviction be recorded as a "conviction without punishment", with or without an accompanying period of good behaviour (see DFDA section 75). Suspension of punishment is also an option for service tribunals.

The decision as to what specific punishment is an appropriate one will often be a difficult one, and can only be made after the tribunal has considered all the circumstances and after carefully considering any mitigating or aggravating factors, as well as the personal circumstances of the convicted person. Where a fine is being considered, the ability of the person to pay the fine must also be taken into account (DFDA section 70(3)).

In circumstances where two people of the same rank commit an offence similar in nature, it should not be automatically assumed that they would or should receive the same punishment.

Similarly, offences committed against particular sections of the Act will usually disclose different levels of criminality and culpability, as well as varying aggravating and mitigating factors.

In such circumstances, punishments might well vary from the lenient (a reprimand), where for example, an Able Seaman fails to properly make his bunk, to the very severe, where for example an experienced Chief Petty Officer fails to properly conduct safety checks on life preservation vests (reduction in rank).

This is the case even though the basic DFDA charge may be the same for both - eg: S.29 Failure to Comply with a General Order.

The number and type of previous convictions also affects outcomes from case to case. For example, two Able Seaman charged under S.29 for the same offence in comparable circumstances may well receive different punishments if one has 3 previous convictions and the other has no previous convictions.

The circumstances surrounding the commission of service offences vary, and the personal circumstances of offenders also vary. Only by considering all of the facts and circumstances of a matter can a sentencing officer arrive at what is a fair and proper sentence.

So while there may appear to be inconsistencies between the award of punishments in different cases, all the circumstances of each case need to be taken into account. The service tribunal, as the person before whom all the circumstances are presented, is best placed to make judgments which will be as consistent as the facts permit.