If offenders A and B have engaged in the same act, (and, if relevant, with the same mindset), and both are convicted of crime X, but, by chance alone, the result of offender A’s conduct is more grievous than the result of offender B’s conduct, should offender A receive a greater sentence?
Sometimes the law appears to answer this for us by establishing offences based on outcome, and setting different maximum penalties. So, in Victoria, there are the offences of dangerous driving (maximum penalty 2 years’ imprisonment), dangerous driving causing serious injury (maximum penalty 5 years’ imprisonment) and dangerous driving causing death (maximum penalty 10 years’ imprisonment). Let’s say the dangerous driving in question is driving along an apparently empty suburban street at the speed limit, and the driver looks down at a map for 5 seconds. During that 5 seconds she cannot see the road. Her conduct is undoubtedly culpable. What crime she has committed, and the maximum penalty she faces, is determined by the chance outcome of that criminal act. Similarly, the legislature has determined that offence X, and the attempt to commit offence X, are separate crimes; and in Victoria, attempts carry a lower maximum penalty than completed offences: s321P Crimes Act 1958. Imagine two people who intend to kill a person by leaving a poison in their victim’s cup of tea. The first victim drinks their tea, as expected, and dies. The second victim spills their tea, so they do not drink it, and they do not die. Both offenders have engaged in the same physical act, with the same intention. Yet one causes a death, and is convicted of murder, and the other does not cause a death, and is convicted of attempted murder, with substantially different maximum penalties (life imprisonment v 25 years’ imprisonment). By establishing distinct offences and maximum sentencing, the legislature has indicated that outcome matters, and, independently of other factors, aggravates the offending for sentencing purposes.
The Narrow Question
But the issue I am really interested in here is: what happens when the legislation does not define a crime according to outcome, and two offenders have not only committed the same act with the same mindset, but have also committed the same crime, and the same maximum penalty applies to each of them? Then, should the gravity of the outcome of their crime affect the sentence imposed?
On this point, Ashworth notes that in UK courts,
there remains the awkward theoretical question of the extent to which courts should mark the difference between bad driving that causes … a single death, or more than one death. In some instances the driver should know that several lives are being put at risk, as where there are others in the car or where the vehicle is a coach or minibus. This should be an aggravating factor. But in other circumstances the causing of more than one death may be a matter of chance, as the Court of Appeal has recognized. But the Court’s view is that, ‘rather illogical’ as it is, ‘in the public’s estimation it is a factor which people in general do take into account. People do regard killing three as more criminal than killing one. That is a fact of life which this court recognises.’ The Court in Cooksley took the same view, adding that any increase ‘must remain proportionate to the nature of an offence which does not involve any intent to injure.’ (Ashworth, 2005, 124)
There has been some indication that Australian courts also consider community feeling as relevant to the sentencing exercise. For example, the Victorian Supreme Court of Appeal has accepted that there is space within the sentencing exercise for “moral sense”:
Common sense and moral sense… are and must ever be the essential foundation of sentencing principles and practices. (DPP v England  2 VR 258;  VSCA 95 at  per Brooking JA)
And it has accepted that:
The courts act as an agency for the expression of public indignation and condemnation. They do so as a force intended to operate to produce cohesion within a civilised society. (DPP v Coleman  VSCA 59 at  per Tadgell JA.)
The Corporate Crime Context
This issue arises somewhat frequently in corporate crime sentencing.
In a recent sentence appeal before the Victorian Court of Appeal, counsel for the appellant argued that
all other things being equal, a breach of the [Occupational Health and Safety Act] involving a death is always to be treated more seriously for sentencing purposes than a breach that does not. Putting Coates at the forefront of his submissions — in that case a fine of $500,000 was imposed on a Crown appeal following a fatality — senior counsel argued that the fine of $300,000 imposed in this case on charge 1 (where there was no fatality) could be seen to be manifestly excessive. (Dotmar, per Priest JA, )
The Court dismissed this “fallacy”, explaining that
[s]uch an approach equates the gravity of the consequences of a breach — that is, whether the breach resulted in death or injury, or neither death nor injury — with the gravity or seriousness of the breach. The [Occupational Health and Safety Act] is concerned generally with risks to health and safety; and, under Part 3, concerned specifically with the duties owed with respect to health and safety. It is the extent of the failure to ensure that employees are not exposed to risk to their health and safety which determines the objective gravity of the offence. The consequences of the failure generally do not. That is not to say that the fact of death or injury occurring is necessarily irrelevant. The occurrence of an accident, resulting in death or injury of a particular kind, may inform an assessment of, first, the existence of the risk, and, secondly, the nature and seriousness of that risk. (Dotmar, per Priest JA, )
These comments seem easier to make in a case like Dotmar, where there was no fatality, than in a case involving a fatality. But substantially the same comments were made by the Court in the 2012 case of Orbit Drilling, concerning an OHSA offence that resulted in the death of a young employee (at ). However, they were followed by this qualifier:
The distinctive character of the offence of reckless endangerment [note: in this case, the accused was convicted of an offence of recklessly engaging in conduct that places or may place another who is at a workplace in danger of serious injury] may mean that closer attention should be paid in sentencing to the actual consequences of the offence. As already discussed, the offence under s 32 involves the knowing exposure of a particular person (or persons) to a probable risk of serious injury. As with other risk-based offences, the offence is committed at the point when the employee is knowingly exposed to the risk, and the fact that no injury is suffered in no way lessens its gravity. But, where the employer’s reckless conduct does cause actual harm, the extent of the harm might be thought to be relevant to penalty, at least where what occurred was within the scope of the danger foreseen. It might be said, for example, that the reckless exposure of an employee to risk would be viewed more seriously when it resulted in the employee’s death than when it resulted in serious injury. The point was not argued, however, and we need say nothing further about it in the context of the present appeal. (Orbit, joint judgment, )
There is conflict within this obiter. On the one hand, the gravity of the offence is assessed independently of outcome; on the other, the offence “might… be viewed more seriously” if it results in death as opposed to serious injury. Gravity and seriousness can hardly be anything but synonyms in the sentencing context; these two statements are therefore contradictory. The further comment that the extent of harm “might be thought to be relevant to penalty” suggests that the Court would be willing to take the “rather illogical” public sentiment (noted above in the passage by Ashworth) into account when sentencing. Yet the language is tentative and qualified, and confined to the “reckless endangerment” offence.
In other OHS prosecutions, the fact that a workplace death resulting from an offence of failing to provide a safe workplace would increase the seriousness of the offence and be relevant to sentence has been accepted without question:
In the circumstances, the fact that a Coates employee was killed as a result of the very danger which the safety procedure was designed to eliminate makes Coates’s ‘disregard of employee safety’ a matter of very high culpability, in our view. (DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361 at )
In the same case, the Court of Appeal appeared to approve of the trial judge’s comment that
I have no doubt that the failure by Coates to adhere to its own safety procedures was a cause of the death of Mr Todd. Such consequence of the criminality of Coates is to be taken into account when assessing the gravity of the offence. (at  emphasis added)
And in the Western Australia case of Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos (2008) 101 SASR 339,
I should add that the allegation of a fatal injury to the named employee is unnecessary but legally harmless. The consequence of a contravention of s 19(1) is relevant to the question of penalty, but is not an element of the offence. (per Doyle CJ at , emphasis added)
This conflict is not surprising, given that a sentencing judge in a fatality case may be looking at the faces of anguished family, and hearing their stories of grief and loss, during the plea hearing. How impossible it must feel, to say “this offender’s culpability is the same whether your loved one died or not”. The idea that harrowing outcomes don’t increase a sentence is simply implausible. While a sentencing judge is only an organ of the court, exercising the court’s power in a dispassionate and objective manner, she is also a human being and member of the community. A County Court judge recently commented, during a plea hearing in a “culpable driving causing death” prosecution that “because four people died, the sentence will be substantial“. And while that sentiment runs counter to the principles enunciated in Dotmar, it is consonant with the comments in Orbit, Coates and Diemould. What’s more, there is Australian common law authority that courts may, legitimately, incorporate emotional feeling into sentencing. The Victorian Supreme Court of Appeal said in R v Coulson  2 VR 446, at 463:
Sentencing is governed by the intellect, but the emotions also have their proper part to play. (Cited with approval in Hunter v The Queen  VSCA 385.)
In addition, despite some criticism (see, e.g., Kirby J’s dissenting comments in Markarian v The Queen  HCA 25), the sentencing exercise continues to be characterised an “instinctive analysis”, validating the incorporation of an individual judge’s instinctive feeling into a sentence.
However, a court’s sentencing power is constrained by the allowable purposes for which a sentence may be ordered. It would not be appropriate to adopt the “rather illogical” public sentiment, “moral sense”, “emotions”, or “indignation” noted in the various dicta above in the assessment of a sentence, unless they were relevant to one or more sentencing purposes. In Victoria, the sentencing purposes are
- deterrence (specific and general),
- denunciation, and
- protection of community: s5 Sentencing Act 1991 (Vic).
Do any of those sentencing purposes require that a more serious outcome of a criminal act be weighed in the sentencing discretion as an aggravating feature – a matter meriting a higher sentence?
In some cases, the driver who, by chance, kills or injures a person is in less need of specific deterrence from future offending, than the driver whose same behaviour results in no harm. So too, the need for general deterrence may be reduced when injury or death results, as the harm manifested provides its own deterrent to others who may engage in similar conduct, and the need for general deterrence may be increased when there is no injury or death resulting, as the sentence may in those cases be the sole deterrent.
Similarly, the need for rehabilitation of the offender and protection of the community, may be reduced in cases where injury or death resulted, as the offender may be so traumatised by the outcome of their conduct that they are self-motivated to reform their behaviour. On the other hand, the dangerous driver who causes no harm, may have a greater need of court intervention to be motivated to recognise the seriousness of their conduct and the need for reform.
Regarding denunciation, Freiberg (Freiberg, 2014, p260) cites Lamer CJ in R v M (CA)  1 SCR 500 at 558:
A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender…
This indicates that denunciation does not (or ought not) allow the aggravation or mitigation of a sentence owing to an outcome that was occasioned by chance alone, because denunciation responds only to the offender’s conduct.
This leaves punishment. Frieberg argues that punishment is retributive (Frieberg, 2014, p236). He cites a number of cases in support, including R v Woolnough  VicSC 222, in which McGarvie J said
[There is a] community expectation that particular offences merit substantial punishment. This expectation if denied brings with it a risk that community respect for the administration of the law will be reduce … The danger of such a situation is that if the community lacks confidence in its criminal law it tends to take punishment into its own hands, inflicting harsh and unreasonable retribution upon offenders.
It’s an interesting theory, but in my experience, not a demonstrable Australian reality. Particularly not in the field of corporate crime. Nonetheless, it is widely accepted that punishment quite properly allows for retribution. This would appear to “open the door” to the emotional feeling discussed earlier to enter the sentencing calculation, and may provide justification for chance outcomes to aggravate or mitigate sentences. Or perhaps we can leave emotion out of it: Bronitt and McSherry note that that retribution requires a “proportionate relationship between the harm done and the nature and degree of punishment.” (Bronitt and McSherry, 18)
Matters To Which The Court Must Have Regard
I would be remiss if I concluded without acknowledging that in most jurisdictions, courts are directed to have regard to certain factors when calculating sentences. In Victoria , these factors include “the impact of the offence on any victim of the offence” and “any injury, loss or damage resulting directly from the offence”: s5(2)(daa) and (db) Sentencing Act 1991 (Vic). However, this does not necessarily mean that impact or injury is required to be given any weight in the sentencing exercise: see, e.g., AB v The Queen (No 2) (2008) 18 VR 391 at -.
Neither statute nor common law provide a clear answer as to whether chance outcomes ought to affect a criminal sentence. There is real merit, intellectually, in concluding that chance outcomes – like whether or not an employee dies as a result of an unsafe workplace – ought not influence the sentencing calculation, unless they can be shown to affect the need for one of the allowable sentencing purposes. And there is a strong argument to be made that punishment based on chance outcomes is unfair and inimical to the rehabilitation of an offender, despite a community’s reflexive emotional response to those outcomes. On the other hand, even in the context of corporate crime, the consequences of offending can involve catastrophic loss and trauma to individuals, families and communities, ecosystems and animal populations. Our courts have always been unwilling to relinquish their ability to reflect communal, even personal, emotion about the consequences of crime, however “illogical” it may be. Perhaps that too is proper, when we consider that the criminal law transfers to the hands of the state the otherwise natural right of citizens to exact their own justice, through retribution, for wrongs committed against them.
Unfortunately, as sentencing is still considered “instinctive”, sentencing judgments need not provide a clear answer when this question arises during a plea; merely sketching the contours of the sentencing considerations is sufficient to discharge a court’s duty. This makes it unlikely that the question will be answered clearly and with precision, anytime soon.
Andrew Ashworth, Sentencing and Criminal Justice (Cambridge, 4th ed, 2005)
Arie Freiberg, Fox & Freiberg’s Sentencing – State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014)
Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Lawbook Co. 2005)
AB v The Queen (No 2) (2008) 18 VR 391
Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos (2008) 101 SASR 339
Dotmar Epp Pty Ltd v The Queen  VSCA 241
DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361
DPP v Coleman  VSCA 59
DPP v England  2 VR 258
Markarian v The Queen  HCA 25
Orbit Drilling Pty Ltd v The Queen; Smith v The Queen  VSCA 82
R v Coulston  2 VR 446
R v M (CA)  1 SCR 500
R v Woolnough  VicSC 222