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Episode 150
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Ethics and Professional Responsibility Substantive Law
Carrot or the Stick? Exploring the Effectiveness of Penalties in Deterring Crime
Law as stated: 26 March 2025
What is this?
This episode was published and is accurate as at this date.
Tom Percy KC, barrister at Albert Wolff Chambers, joins David to discuss whether deterrent penalties effectively prevent crime or simply appear tough on paper. Drawing on decades in the courtroom, Tom breaks down the logic behind deterrence, the assumptions it rests on, and whether it truly impacts offender behaviour.
Ethics and Professional Responsibility
Substantive Law| What area(s) of law does this episode consider? | Criminal law; Deterrence. |
| Why is this topic relevant? | When it comes to crime and punishment, there’s a question that has lingered for decades: do deterrent penalties actually work? Many of us have heard the old adage; “if you can’t do the time, don’t do the crime,” but does the fear of punishment really stop people from offending? On paper, it seems like an obvious solution: make the punishment severe enough, and would-be offenders will think twice. But in practice, the relationship between crime and punishment is intricately complex. It’s not just about knowing the law; it’s also about understanding the data and the broader societal context that influence its application. |
| What legislation is considered in this episode? | Crime (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (WA); Sentencing Act 1991 (Vic); Penalties and Sentences Act 1992 (Qld); Crimes (Sentencing) Act 2005 (ACT); Sentencing Act 2017 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1995 (NT) (Sentencing Act) |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Tom Percy, presenting ‘Tougher Penalties – Do They Really Work? Or is it Time for a New Approach?’ at The Criminal Lawyers Association of the Northern Territory, 28 June 2011, Bali. |
DT = David Turner; TP = Tom Percy
| 00:00:00 | DT: | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services, and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Do penalties actually work? That’s the question we’re discussing today on Hearsay. Now, lots of us have heard the old adage; “if you can’t do the time, don’t do the crime” but does fear of punishment actually stop people from offending, on either a specific or general basis? Now, hard on crime law and order politicians would have you believe it’s as simple as this; make the punishment severe enough and would-be offenders will think twice, but in practice, the relationship between crime and punishment is much more complex than that, as our guest today will tell you. Dialling in today, all the way from Perth, is Tom Percy KC from Albert Wolff Chambers, one of Australia’s most distinguished criminal barristers. Tom brings decades of experience to our discussion today. He’s not only a passionate advocate in the courtroom, but also a columnist for the Sunday Times and the West Australian, a regular voice on Perth radio and a published novelist – ‘The Curate’s Egg’ is his novel. It’s one that I have a copy of on my desk that I’ll be reading after my current book. Tom, thank you so much for joining us today on Hearsay. |
| 00:01:37 | TP: | My pleasure, mate. My pleasure. Anytime. |
| 00:01:38 | DT: | Now, before we get into deterrent penalties, let’s start with your journey in the law. What led you to law? |
| 00:01:44 | TP: | I had no background in the law, unlike some of the people who I went to law school with, they had fathers and family in the law, and they came from well heeled backgrounds, which expected them to actually go into the law. Yeah, I met some of those when I first got to law school because I had no background. My family were from the country. My predecessors, very small, country hotels. And I’d gone to university basically to study arts. In particular, I had a passion for French literature and I was studying French in my first year at uni. And at the end of the year, a lot of my mates confided to me they were only ever doing arts because it was a pathway into law. You had to do a year at uni before you were allowed in, and I was terrified of being left there on my own with all the blokes I’d become very good friends with. So I just transferred over to law, not knowing anything about it. But after having been there for, I think, about two weeks, I realised, where’s this been all my life? I mean, why did I not know anything about this? And I was in for good. I mean, I never did brilliantly at law school or anything like that, but I loved every minute of it. And ultimately, there was no way I was not going to be in the law. |
| 00:02:53 | DT: | Isn’t that funny? I mean, so often we hear guests, and it sort of reflects my own experience really, who fell into the profession, but were fortunate enough to love the profession despite not having had much of a firm plan to join it. And what led you to crime? When you were at uni, did you always find criminal law fascinating? Did you find all of it fascinating? I mean, there’s a dramatic allure to the criminal law, isn’t there? |
| 00:03:16 | TP: | Well, there is. So, I think when I first started, I actually didn’t like Perth much and I wanted to go back to the bush, and my mother secured for me a job at a small firm in Kalgoorlie. And all my friends said, “what are you doing that for?” I said, “because I like the joint.” I really love that. And it was easy for me. I went back and lived at my parents’ hotel. So it didn’t cost me anything to live. There was plenty of beer and whatever you needed, and I worked in a small firm as a jack of all trades. My article master was a brilliant bloke who encouraged me all the way and taught me very good habits, I think, and I had to do everything. I did wills, estates, did a lot of divorce, property settlements, I did civil cases, personal injuries, that sort of stuff. But I did my fair share of crime and I love nothing more than going down to court in the morning and having a chat with the other lawyers, such as there were, prosecutors and coppers ,and I just took to it like a duck to water but in the back of my head I always had this thing about justice and I remember when I was at boarding school once I used to have to get the train back from Kalgoorlie and I arrived one day boarding school after the overnight train took all night and you slept on the train and they fed you in the morning usually but they didn’t feed us this day because all the kitchen stuff had broken down, I think. So, I snuck off to the shop at morning recess time, which was completely illegal. I knew I shouldn’t have been doing it, but I had to. I was really actually, literally starving. And I was caught by one of the masters who came in and queried. He said, “no, you can’t do that. You can’t leave the ground and go to the shop.” I said, “yeah.” So, they took me into the office and they flogged me. Now, this wasn’t at some flog-a-night school, and I won’t name it, but it’s one of the most prestigious boys schools in Perth, and I felt a really great sense of injustice about that. And that’s something that really coloured my life from then on, and it was reinforced when I went to university. I think it was in my final year at university. There was a demonstration at the university taverns, and people had to burn their bonnet about something that was going on, and there was a demonstration, and it turned nasty, and people were pushed and shoved. Now I’d been at that tavern passing by a couple of hours before, but I was certainly never there when the demonstration was on, but I got charged. Someone seemed to recall me being there and I got charged. And when I got convicted of that at the university disciplinary committee, I appealed against it with the help of a barrister who saw my case and I lost the appeal and I forever had to wear that. And I just thought that was really unjust. And I have this great sense of injustice for people who walk into my chambers who may not be guilty. Now, a lot of them may well be guilty, but the prospect of an innocent person being convicted of something is something that’s really stuck in my craw for a long time and continues to do so, and that’s what keeps me going. So I had a bit of a personal run in at very low levels with the system, and I did tend to call me in that direction. |
| 00:05:58 | DT: | Yeah. And I suppose, and this comes back to the topic of our conversation today, there’s justice not just for the innocent person wrongly accused, but for the guilty person to be sentenced appropriately, right? To receive a punishment that fits the crime. That’s what we’re talking about today. And what we’re talking about today is what we’re calling the misconception of deterrent penalties. Deterrence is, in both the general deterrence and specific deterrence, forms an objective of sentencing and an objective of the punishments we inflict upon the convicted, along with rehabilitation, retribution, but in preparation for this interview, I read some of your earlier writing, including an article that you wrote back in 2014 about a client of yours that you called K, convicted of murder and sentenced to 17 years in prison, and there was a passage in that article that I want to read for our listeners because it’s been sitting with me since I read it in preparation for this interview. In that article you said, “most of the informed literature on the subject seems to conclude that after 5 years jail, the amount of extra correction that takes place is at best marginal. Between 5 and 10 years, the prisoner is simply doing time to appease the community. Between 10 to 15 years, the whole process becomes positively regressive as far as rehabilitation and potential resocialization is concerned. Between 15 and 20 years in custody, there’s a high probability of the prisoner becoming totally institutionalized. With each further year, they are more and more unlikely to ever become someone who could adjust or adapt to useful or even law-abiding life on the outside.” And we’re talking about deterrence as a purpose of sentencing today. That’s more about rehabilitation, but it still strikes me that It represents a misconception in what we’re trying to achieve with custodial sentences in the criminal law. And so, the first question I want to ask you is, what do you think some of the misconceptions are about sentencing, punishment, custodial sentences, both in the public at large, because these are cases and topics that concern the general public, but also in our legal fraternity and in the criminal legal fraternity? |
| 00:07:58 | TP: | Well, I think the really big flat earth misunderstanding in the legal profession is by people who don’t practice in criminal law. And that is if you give people tougher penalties, and you’re seen as doing that as a community, surely people will stop committing the offense. Every study that’s ever been done has proved that that’s a myth. Firstly, because most people don’t find out about what penalties are imposed. They read the cases in the newspaper which are interesting. Someone decided to write them because there was a point in writing them. But not every penalty is exposed or explained, and it’s just a common myth out there in the broader public that people think if you get tough on crime, then crime goes away. We’ll be losing that war since Captain Cook got here. The war on drugs that Nixon proclaimed in the mid 60s, “the war on drugs,” that war was lost long before the Vietnam War was lost. And we continue to lose that every day. But in the public domain, there’s this theory, and it’s an unsubstantiated one, is if you get tough enough on them, then it will go away or it will at least reduce. Now they’ve been hanging people in Malaysia for 50 years, hanging them for 15 grams of heroin or the like, and people still bring it in, still keep coming. And there’s people there in Malaysia, Singapore, those places, there’s keep bringing it in. And I mean, in Western Australia, we decided, the government decided about five years ago, we increased the penalty for possession of 28 grams of methamphetamine. I’m not talking about 28 kilos or 28 tons. 28 grams to life imprisonment. Now I go to a lot of places talking here, interstate, overseas, and people say, “you’re joking, aren’t you? This is something you’ve made up?” I said, “no, I haven’t made this up. This is actually the law in Western Australia. 28 grams.” And they said, “well, has it stopped the drug traders getting in their tracks?” The answer is no. It’s stopped nothing. And we still kept coming in. I’ve got a brief on my desk at the moment. Someone brought in about 900 kilos. And it stopped nothing. And the politicians at the time said, “well, this is it.” And the Attorney General said, “this will cut the head off the snake. This will really sort it out.” Sort it out? You never sort things out by increasing penalties. And I think that’s endemic with politicians and I speak to a lot of them and they hear me out politely, but then they go back home and they say, “oh, how can we be more tough on crime?” Because the public has an appetite for it. And there was a real appetite out there in the public domain, say, “oh, tough penalties. Yeah, that’s the way to go.” And I mean, if we had a referendum in Australia, I think at the moment on the death penalty, it would go pretty close to getting up. I’m not saying it would, but I think you’d be surprised how many people would still vote for it. So I think the problem is that politicians don’t understand this. They do not understand that increasing penalties goes nowhere. And even if they did, and I know some politicians, some do understand that, but they refuse to implement it because there’s such a thirst in the community for tougher penalties that the way ahead for them as politicians is to be on that side. |
| 00:10:56 | DT: | Yeah, I think we see it, especially in election years. We see from time to time, bail amendments, mandatory sentencing in the last elections in Queensland and the Northern Territory where youth crime was an important electoral issue, a position of being tough on crime. And I think we’ll talk about the inherent unreality of offenders making an economically rational, weighing up decision of whether or not they commit the crime based upon the expected value of their sentence. But even if you were to do that and you were to think about all the information available to you as an offender before making the rational decision whether or not to offend, one thing that strikes me, and this comes to your point about the appetite for tough on crime politics in the general population is that if you are an offender, you probably hear fairly regularly from the tabloid media is that we’re always soft on crime and that sentences are inadequate and that people get off scot free all the time. In fact, in the article I described, you even say, again I’m going to quote from it, it’s been on my mind, “I’d realised that the 17 years on the bottom, that’s the minimum sentence for those of us who don’t practice in criminal law, and K was still there, I’d fallen into the trap usually reserved for the media that parole is automatic after the expiry of the minimum term.” Media reporting on crime and justice issues and the public’s perception of it as a result tends to be that we’re often soft on crime, even as we go through these cycles of mandatory sentencing, bail reform, law and justice, and law and order type politics. |
| 00:12:20 | TP: | Well, that’s right. I mean, who’s soft on crime? I mean, I know a lot of judges. I’ve known them professionally. I’ve just reached the stage where I’m older than every single one of them. So, I’ve seen them come through their careers. A lot of them are prosecutors. And the softest part of those people are their teeth. There’s nothing soft about them at all. And the sentences that are passed would really stagger people. And I think that the studies that have been done, when they do a sort of like a random sentencing exercise for a member of a group of people in the public, and they say, “look, we’ve got a bloke, and he’s did this, and he did this, and his background is this, what would you give him?” from an actual case, and you’ll find that the public usually would give them about half of what the person actually got in reality. So I think their perception is that people are getting away with these things all the time. But to return to the point you say is, does anyone make a measured decision about committing a crime? Well, short of some really sophisticated drug dealers, short of some contract murderers, I would think the percentage of people who actually make a considered decision, which factors in the prospects of getting caught and the prospects of what the penalty might be, is about 1%. So I think the whole fallacy of the politicians embrace is that people know that penalties have gone up and they know that they’re going to be more harshly dealt with. Let’s look at drink driving. I mean, there’s still the same rate of drink driving as we had 50 years ago, and penalties have been going up. When I first started in practice, you get drink driving, you get three months suspension and a $150 fine. The fines are 10 times that, and the penalties are draconian. Rates exactly the same. When I first started driving cars, you didn’t have to wear a seatbelt, but then they brought in a seatbelt law and the penalty was $5, not that I ever got picked up for them, but even in inflation adjusted terms, the fact that it’s now about $1,000 doesn’t deter anyone, and there’s the same amount of people, percentage wise, who don’t wear seatbelts. Same with using mobile phones. When mobile phones first came in, there was no penalty for doing it, but they brought in a penalty and it was about $50, $100. And they realised that no one was stopping doing it. So what’s the remedy? You increase the penalty. And a friend of mine who was in the radar says, “I’ve just been to Singapore, Tom, and over there it’s $1000 if you use your mobile phone. If they bring that in here, no one will use their mobile phones.” That’s the sort of penalty they want, the Singapore law. People say that about their approach to the death penalty for drugs too, but it’s another question. Now we’ve got $1000 for using your mobile phone and guess what? Does it stop anyone? No. No. It doesn’t stop anyone. It stops you if you think that there’s a copper around the corner or you have a glance around and you see that there’s nothing which resembles a police car or anything like that. And the fact that the penalty is now a hundred times what it used to be just doesn’t make any difference at all. So I think, firstly, we’ve got to educate the public in that direction. And secondly, If we educate the public, flow and effect to the politicians might be the same. |
| 00:15:12 | DT: | To your point that we may not, especially with traffic offenses, decide to offend if there’s a police car nearby or a speed trap, or we believe we’re going to be caught, the research does suggest that if someone is weighing up whether or not to commit an offense, if they’re doing that exercise at all, they’re really only weighing up whether or not they’re likely to be caught rather than the severity of the punishment. Does that match what you see with your clients in practice? |
| 00:15:35 | TP: | Absolutely. Absolutely. I mean, the only thing that actually crosses their mind is the likelihood of getting caught. If anything crosses their mind at all. I mean, the people who kill people in one punch assaults or do GBH after a nightclub brawl or something like that, they don’t think about anything because if they haven’t taken their share of drugs or alcohol which left them in that state where you don’t think about anything, you just react to things. So those people are beyond the effect of what politicians embrace as being the tougher penalty syndrome because it just doesn’t cross their mind. Similarly with mandatory sentencing, but not many people even know what mandatory sentencing is. I had a bloke come in, I said, “do you think it was mandatory sentencing?” He thought mandatory sentencing was the name of a racehorse, something like that. I mean, he knew nothing about it. And that’s the extent of these people. Not everyone reads the paper or reads these things online or listens to what politicians say and it comes as a huge shock to them to know the penalties that actually lie in wait for them, which is the actual reverse of the theory upon which politicians operate. |
| 00:16:36 | DT: | Yeah, the general deterrent theory makes a little more sense with multinationals operating in white collar areas where they might obtain advice about an issue before they take a risk, but not with your nightclub brawl example. I mean, I suppose what we should talk about is general versus specific deterrence, because what we are talking about is the idea of general deterrence, right? That the knowledge of a punishment or a severe punishment for an offence might prevent you from committing that offence in the future. In your observation from practice, do you think there’s some merit to specific deterrence that a sufficiently severe punishment prevents one person from committing the same offence again? |
| 00:17:12 | TP: | I don’t get many people who re-offend. Maybe I practice at a very high end of the law where if you get sent away there’s just not much opportunity for you to do it again because you don’t see the light of day for a long time. But in terms of drink driving or anything like that, a lot of people fall into one or the other group. There’s two sides to that. People who are so mortified by the court experience that they would not, for all the tea in China, drink drive again. The whole experience of going to court and being without a license for however many months really teaches them a lesson and specific deterrence has worked in that case. They just won’t do it again. But there are other people who just keep coming back and coming back. It has no deterrence to them at all. And I think the current figures about recidivism in our prisons in Western Australia is about 37% find themselves back in jail within two years. Now, a lot of those people come from very poor socio economic groups, and without any disrespect to them, they’re not particularly quick learners, but specific deterrence to them really has no part to play at all. And fines really don’t work for them either, because they don’t pay any fines. Those kinds of people don’t pay fines at all, they just wait till they get their next period of imprisonment and they cut it out concurrently with the next sentence that they’re going to experience. So there’s not much in specific deterrence. It’s probably better than general deterrence because general deterrence does not work at all. Specific deterrence may work marginally in some cases, but not sufficiently. For me to be of the view that it’s worth pursuing. |
| 00:18:43 | DT: | It sounds to me like specific deterrence has a role to play in the sort of offending that’s not driven by broader societal factors. So if you’re talking about a traffic offense where that offending is not driven by drug and alcohol dependency, it’s not driven by poverty, it’s not driven by a cycle of disadvantage, then maybe there is a lesson for that person to learn from the severity of their punishment, they don’t drink drive again, or they don’t commit that traffic offense again. But for the kind of offending, and this is the kind of offending that tends to be punished with a custodial sentence, that tends to be driven by poverty, mental health. lack of educational or work opportunities where the fear of being punished a second time for a similar kind of offending, especially after having served a custodial sentence and having all of the challenge and disadvantage that that inflicts upon you, it sounds like specific deterrence has very little to do in that latter scenario. |
| 00:19:34 | TP: | I would agree with you. |
| 00:19:35 | DT: | And so I guess what we’ve done so far is we’ve established two things. One, that offenders, if they do weigh up the consequences of offending tend to weigh up whether or not they’re likely to be caught. And second, that if the severity of punishment has a role to play, it tends to have a role to play in a specific deterrent context that it has a role to play in preventing re offending, but only where there’s not this broader social moving factor in the offending. Let’s go to the first point around that certainty of punishment, the certainty of being caught. Politicians often take this law and order, hard on crime approach of mandatory sentencing or harsher sentences because they promise to the public that that will reduce offending. Is there a way to increase the perceived probability of being caught without increasing the perceived severity of the sentence? I guess what I’m asking is, are politicians pulling that lever of mandatory sentencing and harsher sentences because it’s the only lever they can pull? |
| 00:20:33 | TP: | Well, it’s the easier one, and it’s the cheapest one. I mean, if you increase police presence on the roads over the holiday periods or whenever the critical times are, if you’ve got marked police cars all down the streets everywhere you go in the nightclub districts of Melbourne, Sydney, Perth, if you’ve got so many police wandering around that it’s inconceivable that you’re not going to get caught if you have a fight or you hit someone or you deal some drugs, then that’s going to make a much, much greater and quicker impact on the rate of crime and the decisions of people to commit crime than any increase in penalties. Just to take a broad example, which I sometimes say to people, which is, if you’re at the bar and you’re debating whether to go home, you’ve had more than you probably need to drink, whether to get a cab or whether you take your car home, you’re weighing that up, you’re making a decision in that regard to the extent that you’re still capable of that. And someone says to you, “well, Tom, I’m not sure you should do this because the penalties have now gone up for first offence drink driving from $1000 to $2000 and the suspension from 6 months to 12 months.” Is that a powerful incentive for me not to drive home? Probably not because you don’t think you’re going to get caught. But then the next guy comes up to you and says, “Tom, I don’t think you should drive home tonight because at each corner of the road that you have to come out of, of the car park, there’s a booze bus.” You just reach and you call your cab straight away, because there’s a certainty that you will get caught. And I mean that for years and years, I used to go to the Melbourne Cup and everyone would drink themselves stupid in the car park there until goodness knows what, till they ran out of beer, and then drive home. And people got caught and it was a nightmare, accidents and things like this. But in the eighties, the police decided that they would establish booze buses at every exit for cars at the racecourse, and they advertised that, and no one did it anymore. It wasn’t because the penalties went up, it’s because there was a certainty that you would get caught. Now we can’t make it at certainty because we don’t have a captive community like we do in the Flemington racecourse or in the car park of the hotel that I was notionally referring to. But we can make it much better known that you’re going to get caught because at the moment the ads say, “drink drive, you’ll be caught.” Answer is drink drive, you won’t be caught. I mean, I’ve been driving for a long time, just clocked up 50 odd years or something like that as a licensed driver, and I’ve been breath tested once. I think it was in broad daylight on a Sunday afternoon. So you just don’t get tested and you don’t get caught. There’s a really good chance you won’t. But if you make it almost automatic that you will be caught and you will be tested like the bloke in the pub who’s told about the car blocks, then that will affect your mentality and your decision making whether to do it or not. So increase police presence. And I think politicians know this will really radically decrease the rate of crime, but it’s expensive. I mean, they’re going to have to quadruple the amount of police they’ve got, the amount of hours they do, and the locations they have. That’s just not it. So, they appease the public by saying, “we’re going to sort this out, we’re going to make real inroads, we’re going to increase penalties.” And it’s a cheaper way, it’s an easier way, there’s just one thing wrong with it. |
| 00:23:42 | DT: | Yeah, and for that more serious offending that we were describing that’s driven by factors that almost render the question of whether or not, or how severely you’re going to be punished moot, these broader social issues, poverty especially. On one view, these are issues for the legislature and policymakers to solve, right? But from another, we have an opportunity, however small, as lawyers on either end of the bar table, or as judges, to have an influence on the lives of the people who do offend, driven by those sorts of factors. What role do you think lawyers, like our listeners, can play in those sorts of situations? |
| 00:24:16 | TP: | Well, we have a very limited role, really. We’re just really the conduit between the community who prosecutes the crimes and the judiciary who designs a path to do three things. Firstly, to deter this person from doing it again. Secondly, deterring others, theoretically, from doing it again. And thirdly, to ensure that the person is rehabilitated. Now, I think we’re failing on all three fronts with our current approach, and other communities in other countries are much more successful than us, and I don’t know why your respective state governments don’t go and have a look at places like Portugal and Holland and Scandinavia where crime’s actually going down. And that’s a documented fact. It’s going up here. The rates of imprisonment continue to rise, not just numbers, but rates of imprisonment continue to rise. And I went to a conference not that long ago, earlier last year, when there was a judge from the Northern Territory who is of Dutch extraction, and she follows the Dutch legal system very closely. And she gave a paper about what’s happening in Holland. And in fact, in the last six years, they’ve closed down 23 prisons. And there’s another six on the way out. They’ve closed 23 prisons. Now, can you imagine reading the article on the front page of the paper in Melbourne saying, are we closing down this prison in Melbourne? There’s not enough crime to justify the amount of people who are coming in, so unfortunately we’ve got to close this prison. And the same in Sydney. I mean, can you imagine that? But all the talk is, “let’s build more prisons because they’re so effective.” Not effective at all. I mean, given that 37% of people come back within two years, I think to call it the Department of Corrections is the worst name for a government department that I’ve ever heard. |
| 00:25:59 | DT: | Yeah, as you say, not much correcting going on. Well, at all, certainly not past the first five years or so. |
| 00:26:05 | TP: | Well, you know, it reminds me, I don’t know if you read George Orwell’s 1984, the main protagonist in that, Winston Smith has a job at a place called the Ministry of Truth. That’s his job. He goes in every day. |
| 00:26:15 | DT: | Propaganda ministry, right? |
| 00:26:16 | TP: | Falsifies all the newspapers to take out the names of all the people who are no longer appropriate to be mentioned. So that’s his job. He does it and it’s called the Ministry of Truth. That’s a bit like the Department of Corrections here and in the States. Who gets corrected? No one gets corrected. I mean, you read the odd feel good story of someone like the odd footballer or something who goes to jail, reforms, comes out and becomes a sporting sensation. But those stories are so interesting because they’re so rare. It’s not something that happens. They go in there and they just come out again and go back in again. So there’s not much correcting, as you say, goes on in there. |
| 00:26:52 | DT: | I think there have been experiments, certainly in my home jurisdiction of New South Wales, I imagine there have been in WA as well, of diversion programs like the Drug Court here in New South Wales that offer alternative sentencing pathways for particular categories of offences. What role do they have to play in debunking this myth that with enough prison, someone will turn themselves around? |
| 00:27:13 | TP: | I think any alternative approach to sentencing and incarceration is to be commended and explored. Unfortunately, it’s only being explored at very low levels. I mean, we have a drug court here, but if you’ve got more than a couple of grams, you don’t qualify to go there. We don’t have that same sort of approach at any meaningful level. It’s tokenism at the moment, but I think it should be expanded. Although again, the politicians are deterred on that, by any perception that this is a soft on crime approach. So I’m thinking if we’re going to get somewhere near the Dutch models where we can actually start closing prisons, and that’s my aim, and I think that should be the aim of all politicians. Let’s start reducing crime to the extent where we just don’t have any customers anymore. We’ve got to close a few prisons, 23 they’ve closed. I mean, wouldn’t that be a fantastic outcome here if we could close even one? |
| 00:28:02 | DT: | Yeah, absolutely. But as you say, that requires us to take a boldly different approach to the sentencing options available. Which brings me to the next question I had for you, which is we’ve been having this policy based sociological discussion about as a community, what our approach to offending should be, right? Like how we should punish and how severely and whether it works. As a criminal advocate, you’re working within a system, which every time you make submissions on sentence, you’re addressing deterrence, right, as a consideration for the bench. Tell me a bit about how you draft your submissions, how you present your submissions on this topic where you feel so strongly that deterrence just really isn’t very effective. |
| 00:28:43 | TP: | Well, you just go through the artifice and the whole charade of the whole thing, you’re talking to a judge. And I mean, some of the judges now are people who were my proteges and they understand this implicitly. As you know, your honor has to send a message to the community and the judge sits there rolling their eyes. That doesn’t appear on the transcript. And we need to make sure that by the sentence that you impose, you send a message to the community that this is not acceptable and condoned punishment will be awarded. And you’re both sitting there engaging in this charade, which is akin to having a discussion about the earth being flat, but it’s required. And if you don’t do that, the court of appeal, again, through clenched teeth will tell you off. So until the politicians change the law and say, “look, there should be a discretion for a judge in a case where he thinks that deterrence, specific or general, is not required, to say so and impose a penalty commensurate with that observation.” Because, for instance, a person commits something, and I had one the other day, which was said to have occurred in 1962, the time of the Commonwealth Games here. I was a very young bloke and I remember actually going to the Commonwealth Games here in Perth, which was only a kilometre or so from where the offence was supposed to have happened. So the person, assuming that he was guilty of this, had then lived for the next 60 years a blameless life. And so we go in and this charade again ensues. How do we ensure that he never does this again? What personal deterrent sentence do I have to impose to make sure he will never do that again? Something that he did when he was 19 and he’s now 79. So, that’s the farce that we have to engage in. And to get back to your original question, writing submissions to embrace that policy and standing up at the bar table to enunciate submissions on a policy that is completely discredited is something that really goes against the grain. |
| 00:30:39 | DT: | You’re making those submissions in the knowledge that there’s not a great deal of deterrence really going on. The judge is hearing them knowing that there’s not really a great deal of deterrence going on. The same is to an extent true from a rehabilitation perspective. This is sort of a practice point, I guess. A tip for young players maybe, in thinking about how they advise their clients and what they focus on in their submissions. If deterrence as an objective of sentencing is a game we play – we make the submissions that we don’t really believe either from the bench or the bar that that’s the objective of the sentence – if that’s a game we play then is what’s really driving the sentence, both the one that you may propose in your submissions and the one that may be handed down from the bench, the statistics around sentencing on comparable offenses in New South Wales? We’ve got the jurors, the judicial information research service that publishes ranges of sentences on particular offenses is what’s really driving it, the statistics around comparable offenses and not falling into a palpable error by being too far out of the range. |
| 00:31:37 | TP: | Well, I think the average citizen wouldn’t know it, and the politicians really wouldn’t know it. They’d make knee jerk reactions to the latest murder or the latest catastrophe, like Bondi murders and things like that. And antisemitism’s on the rise, apparently, so we’ve got to come out with antisemitism laws. And they just do this sort of thing on the run. I don’t think they’re anywhere near as well researched as the judges who deal with these matters, nor the lawyers who have to be the meat in the sandwich sometimes. So I don’t think that that information is likely to ever have an effect in the public domain, nor do the politicians, because they’re just not astute enough. And they’re far too lazy to do that. The easy way out, and as I said to start with, the cheaper way out is just to go and grandstand on TV, say, “we’re going to increase penalties. Make sure these people are dealt with adequately – “the full force of the law” is their favorite saying – and we’re going to make that even tougher. And then it’ll go away.” Well, it hasn’t gone away. The example of the ultimate deterrent penalty is the death sentence. I meet people socially and things like that, and they’ll say, “don’t you think we should have the death penalty?” because they have it in America. I say, “well, they do have it in America, have it in about half of the States.” And there’s been studies conducted over there as to whether there’s any higher rate of murder in the States, which have the death penalty and those that don’t. And I asked people socially over a drink or at a dinner party. And I said, “what do you think it would be?” They said, “oh, well, the States that have the death penalty would obviously have the much lower rate of murder because it’s such a huge deterrent.” So wouldn’t you be surprised to know that there’s no difference? There’s no difference across the board. In fact, some of the states with the death penalty for murder have a significantly higher rate of murder than the ones that don’t. And I think that answers the question. But politicians are just not up to understanding that because, as I say, there’s this great flat Earth mentality out there in the general populace that likes to believe that if you’re tougher, then the problem will go away. And I think this was exemplified just in a very small way, but the former premier, I remember a few years back, Colin Barney was interviewed, a doorstop interview. There’ve been this whole outbreak of people being unruly on fly in, fly out planes, drinking too much alcohol and getting out of control on aircraft. And I said, “what are you going to do about this Mr. Premier?” He said, “I’ll have a look, a look at the figures. And if it really is that sort of problem, I’ll increase penalties.” It just flows like that. You’ve got an increase in a particular type of antisocial, but what’s the answer? You increase the penalties and it goes away. Well, I can tell you it didn’t and still got the same sort of thing. What they had to do was stop serving alcohol in those flights, which was probably a far better approach than increasing the penalties, and one that actually worked. |
| 00:34:18 | DT: | Yeah, prevention is better than the cure type of approach. |
| 00:34:21 | TP: | That’s right. |
| 00:34:22 | DT: | Thinking again about this sort of game we’re playing of making submissions on deterrence and giving reasons on deterrence, to some degree, when we take this mandatory sentencing approach, when our politicians take this mandatory sentencing approach, there’s almost not really even a decision being made by the bench about deterrence, is there? It’s a decision being made by the legislature about deterrence. |
| 00:34:41 | TP: | That’s right. Their hands are tied. And mandatory sentencing has never worked. I remember an academic being interviewed comparatively recently on radio about a new raft of mandatory sentencing that had been brought in by the government, and the interviewer said, “oh, so the jury’s still out on mandatory sentencing?” And the interviewee said, “well, no, no, the jury’s well and truly in on mandatory sentencing. It just doesn’t work.” And I mean, the unfairness of that was impressed on me at a really early age. One of the early flirtations with mandatory sentencing was driving without a license under suspension. And there was an automatic three month jail sentence, irreducible in mitigation for driving for a second offense under suspension. And I had a client, he was actually a friend of mine, who was at a dinner party and his car was blocking someone’s access to go home. And so he got out and he moved the car about a metre, just so that the other car, which had been parked in by someone else – and a cop was driving by, and he knew he was under suspension, and he charged him. He’d driven the car one metre, and he did three months jail for that. |
| 00:35:42 | DT: | That’s exactly the example of a situation. |
| 00:35:44 | TP: | That’s the sort of thing that’s just crazy. And people say, “oh, well, yeah, he was under suspension, he shouldn’t have done it.” Well, let the punishment fit the crime and that didn’t fit the crime. |
| 00:35:53 | DT: | Today we’ve mostly been talking about the stage in a criminal matter where conviction’s been established either by plea or by trial and we’re determining an appropriate sentence or maybe the legislature’s determined it for us in the case of mandatory sentencing. You have experience working on tremendously high profile criminal cases that are the subject of media reporting. We’ve talked before about how the media, especially tabloid media, persists this perspective on the criminal justice system that punishments are soft, as a community we need to be harder on crime. Do those perspectives, the same ones that are driving things like mandatory sentencing, that are driving general deterrence as a linchpin of the sentencing model, do those perspectives on crime make it difficult for people who are involved in high profile matters to get a fair trial? |
| 00:36:42 | TP: | Well, it’s very hard. Fortunately, we have an option here, which is possible in some cases, it’s not automatic, but you can get a trial by judge alone. I know they don’t have that in Victoria and people like Cardinal Pell never had the option of a trial by a judge alone. So you can see what happened there and it happens here too. So there have been a couple of notable acquittals here. In recent years, I might name them, in cases where a trial by jury, those people would be serving life sentences now because the perception in the public domain remains as it was when you and I first graduated, is that if you’re charged by the police, there’s a fair chance you’re probably guilty and you should prove that you’re not. And the subtle mental reversal of the onus of proof for someone who’s actually sitting in the dock and has been charged by the police, especially in a high profile case. It’s one which is very difficult to get around and the sentencing conundrum follows in the same footsteps as that. The question is, and I think there’s a text called ‘Sentencing in Tasmania’ by Kate Warner, who later became the governor of Tasmania, and her perception in that book was that the level of ignorance in the public domain about sentencing is just astronomical. And until we cure the level of ignorance in the public domain about sentencing and the basic fundamentals of it, we’re not going to get anywhere. And unfortunately that job is one that I think probably starts in the schools, although it’s a bit hard to deal with it for very young kids, but the politicians have a duty, I think, to start educating the public about this. That is, if they understand it themselves. |
| 00:38:16 | DT: | I mean, it’s challenging, isn’t it? Because on the one hand, yep, schools could cover it, but for most of us, we’re at school for a very short time in our lives, and that may not be an effective way of keeping adults educated about the way our criminal justice system works. I think most people outside of the legal profession get their information about our criminal justice system from journalists and the media, but there’s a bias towards the extraordinary rather than the ordinary and the unusual rather than the typical that makes it difficult for the media to educate the public about how our sentencing system works. |
| 00:38:51 | TP: | That’s right. I mean, There is, in Western Australia, probably a hundred thousand sentences handed down a year in broad terms. That’s everything from shoplifting to murder. And of those, less than a hundred would be the subject of a sentencing appeal in any given year. So who’s going to write a newspaper article about the ones which were so un-exceptional that neither the prosecution or the defense chose to appeal them? And I think that’s the statistic we’re dealing with, and we’ve got a public who’s only reading about the ones which fall into the exceptional category. They think that’s typical. They read the paper every morning and the stories which have some interesting component in them are published. If they’re not, then they don’t see the light of day. So that’s the real problem. It’s education. And I think that Professor Warner was right when she said, look, the level of understanding of the sentencing process and how it occurs is just appalling in the public domain and needs to be addressed. But that’s a really long term project. |
| 00:39:47 | DT: | One thing that the public seems to have a keen sense of is retributive justice. The sense of the justice for the victim and to appease the community’s desire for vengeance, I suppose. Those objectives of sentencing, even if we were to hold true the idea that all of these objectives are equally valuable and attainable, this idea of justice for the victim, retribution, vengeance, that objective is at odds and pulls in the other direction to rehabilitation. It might be perpendicular to deterrence. Do you think there’s a community interest in retribution? Do you think there’s a community interest in comforting the victim through a sentence? |
| 00:40:27 | TP: | I think the various sentencing legislations and the common law does require that a sentence appropriate to the crime be passed. And that encompasses, to some extent, although it doesn’t say that, a degree of punitive justice, that is, retribution or revenge, as you call it. But short of the death sentence, I don’t think any case that I’ve ever had – and I’ve probably done 200 homicide cases – the family of the victim have gone away and said, “oh, that’s good. He got what he deserved and we’re happy with that.” Just don’t ever see that. And then you probably never will because as they often say, and the press go and ask them, “what did you think of the sentence there?” They’ll say, “oh, well, we’re serving a life sentence. He’ll be out in 23 years, but we’re doing life.” I mean, it’s a common thing and you can understand that attitude. It’s only natural because revenge and retribution are human failings and they do no one any credit, but newspapers dress it up and say justice for the victim. What they’re saying is we want revenge. We want this bloke to get his comeuppance. It’s not because he’s a danger to the public. He’s not going to see the light of day until he’s 30 years older than he is now, if ever. And that’s the way that they say, “oh, it’s justice.” It’s not justice. That’s revenge. Justice is a dish that’s best eaten cold. And you need to sit back and say, what are the interests here for the community? His rehabilitation, the protection of the community, and deterring him to do it again. You weigh those factors into there. But as you say, with respect quite correctly, there’s no real place for retribution and bastardry in sentencing, if I can put it that way. |
| 00:42:01 | DT: | I mean, here in New South Wales, the Crime (Sentencing Procedure) Act 1999 (NSW) does call on the court to consider the denunciation of the conduct of the offender to ensure that they’re adequately punished. There’s a window, I suppose, to consider retribution. And in the context of those factors outlined in section 3A of the legislation here. |
| 00:42:23 | TP: | One of the most difficult things is where a child has been killed. And as a lawyer, a defense lawyer, it’s one of the most unenviable cases that you will ever have, irrespective of what the circumstances were. Quite often these things occur against the background of a matrimonial dispute or something like that. And the real problem with dealing with those cases is to try and take the emotion out of it. But that’s almost impossible because the whole thing is built on emotion. It was fueled by emotion and it will be for many years. So the question is, how do we deal with that as a community without showing our denunciation of that kind of thing? And I think to some extent, deterrent sentencing is supposed to do that. It’s supposed to show to people who might be minded to do something like that, that it will be met with a sentence of the utmost severity. So I think, but to a certain extent, the retributive aspect of that is encompassed in the general deterrence. But the question is, at the end of the day, does it work? Now, I often say to politicians, “well, there are two aspects to deterrent sentencing. Firstly, is it the proper sentencing? And should that person have been punished as hardly as they were? If the answer to that is yes, well, that’s fine. But don’t give me the second part of that; ‘and it will also stop other people doing it.’” It won’t stop other people doing it. And as I said, I’ve done a lot, a lot of homicide cases. I don’t think I’ve ever had one person who said to me, “I thought about this before I did it.” They’re all essentially crimes of passion, happening at the moment, things like that. No one ever did it in a calculated fashion. And secondly, I’ve never had any of those people, when they were ultimately released from prison, reoffend again. I mean, I’ve had a couple, I’m going back to the 80s where we had the death penalty here in Western Australia. We didn’t execute anyone after 1964, but you used to stand there in front of the judge when someone got convicted of murder and the judge would put on a black cap. There’d be no sentencing hearing, no psychological reports or anything like that. They’re part of the death sentence in those terms, and you’d be taken from this place to a place of execution and a day appointed by the executive council. You’ll be hanged by the neck until you’re dead, and may the Lord have mercy on your soul. I mean, that’s pretty chilling. I was only in my mid to late twenties when I got my first death sentence. It was a woman, she didn’t hang ultimately. And she was released after about 12 or 13 years, but there’s no more, can die a minor in your career as a lawyer, than when someone gets life. But I tell the young lawyers these days, what do you get a death sentence? I mean, you really understand this. But the question is, when we had the death sentence, we actually passed the death sentence, was there any less murder than there is now? And the answer is no, even on a population adjusted figure. In the old days in Perth. You probably had one a month, now we’ve got one a week. It just doesn’t work, and it never worked in those days, and still isn’t. |
| 00:45:14 | DT: | And I suppose there’s also a possibility that causation’s running the other way, as you’ve said in some of your writing in the past. Most people sentenced to prison eventually get out, and they return to the community, and we have to decide whether the neighbor we want is someone who’s capable of living and operating and being a useful member of our community, or whether they’re so institutionalized by their time in prison that they are incapable of that. |
| 00:45:40 | TP: | Well, they are, man. I just shudder to think about some people. I was reviewing a case not that long ago for a chap who was involved in a motor vehicle homicide. He said he accidentally ran over a girl who jumped out of his car. He went down for willful murder, it was in ‘83, he still hasn’t got out. So he’s been there for 40 years and they’ll keep refusing him parole for whatever reason. So just can you imagine what a different world it is, how someone like that will ever readjust? I mean, no convictions prior to that, and you go in there in the early 80s and you get out in the mid 2000s, if they let him out later this year. This wasn’t an axe murder or anything like this. It was a motor vehicle accident. And he’s never used a computer. He’s never seen email. He’s never seen a smartphone. He’s never done anything like that. I mean, he has never seen a CD or anything like that. He’s only ever seen vinyl records. So I’m sure any rehabilitation he had to do would have been absolutely complete at 10, 15 years. As a community, we’ve seen fit to keep him in there and he’s still in there. He may well listen to this show. |
| 00:46:46 | DT: | Yeah, it’s hard to escape the idea that we’ve done that to serve a desire for retribution. And I think we all, both as members of the legal fraternity, who are in part responsible for the sentences that are passed in our courts, need to reflect on that, but also as members of the public. |
| 00:47:00 | TP: | And if you believe in deterrent sentencing, that keeping this man in there has been a deterrent to anyone, if I gave you his name, which I won’t, and I gave it to any politician, I’d say, “well, is this bloke continuing to serve that deterrent purpose?” You’ve never heard of him. 99.9% of the community have never heard of him, his case or his situation. So you can rest your case on deterrent sentencing when it comes to people like this. |
| 00:47:26 | DT: | Yeah. We’re nearly out of time, but before you go, I’d like to finish every episode with a question for young professionals who might be listening to this, who’ve recently joined the profession. You’re a tremendously experienced criminal law advocate and we’ve been talking about sentencing today. I thought I’d ask you to give us some tips for the young advocates listening, maybe who are just about to join or who have just joined the legal profession on making sentencing submissions. If there was one tip that you wanted to give young lawyers, either just joined the profession or in training on making submissions in sentence, what would that tip be? |
| 00:47:57 | TP: | Well, there’s a couple. I think don’t rush into the superior courts because you’re playing for big stakes down there. I think you should hone your trade for a long time, even beyond that, which you think you need to in the magistrate’s court. That’s the first tip. Secondly, don’t ever think of crimping on preparation. Always do substantive submissions. Thirdly, make appropriate concessions because you lose all credibility. If you’ve got a bloke who has to go to jail, say, look, you’re in a, this is obviously a case where your honor must pose a custodial sentence. The only question as to whether it should be suspended or if where suspension is not really open, don’t run with it, make appropriate concessions so that you engender the confidence of the bench, not just for the case that you’re doing there, but in future. So they’ll know that person, when they come up and say, “oh, he’s a guy who’s a straight shooter.” And you get the ear of the court by being so straight with and not running fallacious propositions. We’ll get a reputation for someone who flies kites if you do that, and generally it will hold you back in your career. So prepare, don’t take on anything which is really outside your level of expertise, take advice from senior counsel, if you can, I mean, you don’t have to pay them. And people come and see me and they say, “what do you think about this one?” I’m not going to charge him an hourly fee to sit down with him. And you’ll find there’s a lot of senior counsel around who are more than happy to give you their advice about what might appear to be a tricky sentencing problem and just run it straight. Just run it really straight. Make the appropriate concession. Some people say, “oh, well, you’ve got to fight hard for your client. If there’s any chance of getting him a non custodial sentence, you’ve got to fight really hard for that.” The answer is, sure, but don’t do it in ridiculous cases. Draw the line at something where there’s no reasonable prospect. The judge knows it. Don’t articulate it because you look like an idiot in court and on the transcript. |
| 00:49:48 | DT: | Yeah, absolutely. Those are tips that I think apply in civil advocacy as well. Your reputation’s everything and if you make appropriate concessions, as you say, the submissions that you do make forcefully are going to be heard loud and clear. But if you take every point, even the ones that everyone knows you’re going down on, well, a bit like the boy who cried wolf, the bench is going to start to distrust even the things that they ought to believe. Tom Percy, thank you so much for joining us today on Hearsay. I’ve really enjoyed our conversation and look forward to speaking to you again soon. |
| 00:50:15 | TP: | My pleasure. |
| 00:50:26 | DT: | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Tom Percy KC, for coming on the show. Now, if you’re a criminal lawyer and you’re looking for some more criminal law episodes of Hearsay, go check out our recent episode we put out with New South Wales Crown Prosecutor Michael Gleeson, that one’s episode 139. It’s called ‘Piercing the Limits: The Defence of Consent in Russell v R’ and if you like that one, I’d also recommend you check out our episode with former New South Wales Senior Crown Prosecutor Mark Tedeschi and published author. That one is episode 115 and it’s called ‘Missing, Presumed Dead: The Case for Strong Circumstantial Evidence’. That one’s about one of Mark Tedeschi’s high profile murder trials that he also wrote a book about. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, as you well know, but we suggest this episode entitles you to claim either a substantive law point or an ethics and professional responsibility point – you take your pick. For more information on claiming and tracking your points, head on over to the Hearsay website. Hearsay the Legal Podcast is brought to you by Lext, a legal technology company that makes the law easier to access and easier to practice, and that includes your CPD. Finally, I’d like to ask you a favour. If you like Hearsay the Legal Podcast, please leave us a Google review. It helps other listeners to find us and that keeps us in business. Thanks for listening and I’ll see you on the next episode of Hearsay. |
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