An integrated approach to designing, delivering and reporting research: Combining practitioner and academic perspectives within the field of sentencing research.

Professor Elena Marchetti2, Ms Anne Edwards1
1Queensland Sentencing Advisory Council, Brisbane, Australia, 2Griffith University, Brisbane, Australia

Since the re-establishment of the Queensland Sentencing Advisory Council in late 2016, the Council has strived to design and deliver a range of professional products to fulfil its legislated functions. To date the Council has completed a number of major public policy reviews and research publications designed to influence public, political and professional considerations about sentencing. The Council universally agreed that their capacity to establish and sustain a strong reputation and influence sentencing-related conversations required a commitment to designing and delivering quality research within the applied environment. This presentation provides an insight into how the Council combined the skills of its appointed academic adviser and Deputy Chair with the experience of practitioners attached to the Council and its Secretariat to design its research agenda. The presentation will use two Council initiatives to highlight its integrated approach.  The first initiative directly brings practitioners and academics together to discuss sentencing related research, policy issues and topics of interest to promote collaboration and the exchange of ideas in an open forum. The second initiative describes the approach adopted for one of the Council’s formal Terms of Reference, balancing the imperatives of the applied environment such as time and resource constraints, with the need to design a research approach that delivers a quality product that upholds the reputation of the Council as a serious and professional body within sentencing research and the broader criminal justice system.


Biography:

Professor Marchetti – Elena is the Acting Chair of the Queensland Sentencing Advisory Council and is a Professor and ARC Future Fellow at Griffith Law School, Griffith University. She has a long history of research in relation to Indigenous criminal justice programs and sentencing courts and ample experience in conducting and supervising research projects that involve marginalised groups.  Elena has been awarded two ARC funded fellowships.  The first which was awarded in 2009 focused on the use of Indigenous sentencing courts for partner violence offending. The second which was awarded in 2015 and which is currently ongoing, focuses on better ways of evaluating Indigenous-focused criminal justice programs.

 

Post-Provocation Sentencing in Domestic and Non-Domestic Homicides: The Role of Mental Illness and/or Impairment in Defence Narratives

Dr Danielle Tyson1, Professor Rosemary Hunter2
1Deakin University,  Burwood, Australia, 2Queen Mary University of London, London, England

In 2005 the Australian State of Victoria abolished the defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. In a systematic examination of post-provocation judicial sentencing decisions, we found that while elements of victim-blaming and arguments based on provocation certainly remained present in defendants’ pleas in mitigation, they were generally rejected by trial judges. Beyond this, we identified a greater emphasis by defence counsel and some judges on mental illness or disorder as an avenue for offenders to argue for reduced culpability or as mitigation in sentencing. While a small number of judges explicitly rejected these claims, the use of mental illness as an explanatory narrative in these cases requires further analysis. In this paper we present preliminary findings from a study of the role of mental illness and/or impairment in sentencing in cases of domestic and non-domestic homicide. Our analysis suggests that while the 2005 reforms have had some success in challenging the gendered assumptions underpinning provocation’s victim-blaming narratives, it is possible that in the absence of the provocation defence, these assumptions may be redeployed as part of the defendant’s mental health narrative.


Biography:

Dr Danielle Tyson is Senior Lecturer in Criminology at Deakin University, co-director of the Monash/Deakin Filicide Research Hub and co-facilitator of the Addressing Filicide bi-annual conference series. Her research interests include legal responses to intimate partner homicide, homicide law reform, filicide in the context of separation and gender, justice and sentencing.

 

Neurolaw in Australia: An Empirical Study of the Use of Neuroscientific Evidence in Sentencing

Mr Armin Alimardani1
1University Of New South Wales, Sydney, Australia

In the contemporary scholarly neurolaw literature, neuroscientific evidence is frequently characterized as conceptually at odds with the core features of the criminal law. This makes it seem as if the use of neuroscientific evidence in criminal proceedings presents new and potentially difficult conceptual and doctrinal challenges. This paper presents the findings of the first Australian study, and one of just a few studies worldwide, that does not simply theorise about the use of neuroscience in criminal courts, but instead uses an empirical methodology that involves the systematic collection and analysis of criminal cases in which reference is made to neuroscientific evidence. The findings of this study indicate that various forms of neuroscientific evidence (e.g. structural and functional imaging and neuropsychological testing) have evidently been used in an unproblematic manner in Australian criminal courts since 1975. Such evidence has been used in a range of contexts including moral culpability, deterrence, rehabilitation, custodial hardship, and recidivism. This suggests that Australian courts do not think that this evidence presents any special challenges or problems, but rather they treat it just like they would any other evidence, like traditional psychiatric assessments which include diagnoses of disease or disorder of the mind. The study is confined to the sentencing procedure of New South Wales, Australia. A comprehensive search was conducted on two general legal databases (Caselaw and AustLII) and on the Australian Neurolaw Database, with 215 decisions before 2016 ultimately considered.


Biography:

Author biography: Armin is a Ph.D. candidate in law at UNSW, Australia, and he is conducting an empirical study of the use of neuroscience in sentencing in Australian Criminal Courts. He commenced his Bachelor of Law in 2007 in Iran and completed his Master of Criminal Law and Criminology in 2014 in Iran. His thesis focused on the relationship between genetics and criminal law and published it as a book titled ‘Genetics and Crime’. He was elected as the author of the distinguished Persian book of the year in students’ section by Iranian Students Booking Agency (ISBA). In 2016, Armin joined the Australian Neurolaw Database Project (neurolaw.edu.au) on analysing cases in the Australian courts that involve neuroscience. Although Armin’s main focus is on biological sciences and law, he is also passionate about the intersection of other areas with law, such as mathematics and computer sciences.

In Search of Rehabilitation: Taking Stock of Trends in Sentencing Organizational Offenders in Canada since the Westray Reforms

Jennifer Quaid1
1Civil Law Section, Faculty of Law, University Of Ottawa, Ottawa, Canada

Sentencing has an outsized role in setting the tone of enforcement against organizational/corporate offenders because nearly all such cases are settled with a guilty plea. When Canada enacted the Bill C-45 “Westray reforms” in 2004, the addition of a wide judicial discretionary power to craft probation orders as well as specially tailored organizational sentencing factors was heralded as a key change that would promote a much-needed shift away from monetary fines as the default response to organizational wrongdoing toward behavioural remedies designed to address the underlying structural and cultural causes of the offence.

In this paper, I assess the concrete impact of these reforms by examining a representative cross-section of reported sentencing decisions in those areas of regulatory and criminal law where prosecutions against organizations tend to be more common (workplace health and safety, environmental and wildlife protection, fisheries, competition law) and find that they have done little to move the enforcement mindset away from one centred on calculating the level of optimal deterrence in dollars. I argue that altering sentencing practice to one where the central focus is rehabilitation is possible but requires two key changes: (1) training for enforcement officials and judges to provide them the specialized knowledge and analytical tools to design non-fine measures that are both feasible and consistent with sentencing objectives and (2) meaningful participation within the sentencing process for stakeholders, other than senior management, who are affected by sanctions imposed on the organization and whose insights could inform the fashioning of an appropriate sentence.


Biography:
Jennifer Quaid, BSocSci (Econ), LLL, LLB (Ottawa), LLM (Cantab), LLM (Colum), PhD (Queen’s) is an expert on corporate criminal liability.  Applying an interdisciplinary approach that combines criminal law and organization theory, her research focuses on developing principled and effective enforcement responses to organizational crime. Prof. Quaid’s other research interests lie in general criminal law, punishment theory and business law, particularly competition law. A member of the Bars of Québec, Ontario and New York, Prof. Quaid practised law for several years before joining the academy. She clerked for the Honourable Frank Iacobucci of the Supreme Court of Canada.

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