When I was completing my law degree, we were taught that there are a number of competing considerations in sentencing.

Exactly how many considerations there were depended on whose list you were reading, but a common selection would be retribution, rehabilitation, deterrence, and incapacitation.

Retribution is similar to punishment, or, in some situations, revenge. In almost every crime, either the victim or the community has suffered a loss, the perpetrator has gained an advantage, or both. Punishment seeks to rebalance the equation.

An example might be a victim wanting to see a criminal ‘pay’ for what they have done, or a court imposing a community service order to force a criminal to compensate the community for the cost the crime.

Rehabilitation is focussed on showing an offender that what they did was wrong and providing the tools to reduce the risk of re-offending.

Deterrence is outward focussed — making sure that people are aware that if the law is broken, there will be consequences. It encapsulates general deterrence (making the community aware) and specific deterrence (making the offender aware).

Incapacitation is about keeping the criminal off the street. Some offenders are, put simply, a danger to themselves and others, and for the community’s safety, they need to be controlled.

Obviously, trying to balance these varied goals in an unenviable task. A judge or magistrate must consider the maximum sentence for an offence, various legal precedents and rules, and then take a complex, nuanced set of facts and attempt to arrive at a just result.

It’s a difficult job. And the job is not made easier by the fact that, at times, it seems that the community is utterly and immovably focused on only one of the above considerations: retribution.

Barely a day goes by without the media trying to initiate outrage over the penalty handed out to a convicted offender. Many media outlets provide information in a manner that can only described as selective, meaning that people who are outraged by a sentence are often poorly informed about the circumstances of the offending, the background of the offender, and often even the offence itself.

And, as any quick perusal of any comments section of an online news site will tell you, communities have an ever decreasing faith in the judicial system.

While legislatures are inevitably going to be pulled this way and that by public opinion, we are fortunate to have retained an independent judiciary, meaning that (unlike many jurisdictions in, say, the United States) judges are spared the outrageous choice between justice and re-election.

That is not to say that the community should have no say whatsoever in the criminal justice system — it is right that community standards inform and guide parliamentarians in deciding what should be illegal and what offences the community finds especially abhorrent.

On a macro level, the community is often fairly level headed about these issues. Where the court of public opinion so often fails , however, is in the application of a sentence to a specific offence

The law is meant to be impartial and whilst I’m not naive enough to suppose that judges and magistrates are never emotionally effected by their work, I believe that most, if not all, do their very best to set aside emotion and to render a dispassionate and fair decision.

The public however, is often not so high minded, especially when stoked by talk-back radio hosts and columnists cruising for outrage.

It is for all the above reasons that I was horrified to hear back in July 2011 that the Victorian government was giving the public, through a survey promoted in a major tabloid newspaper, the chance to pass sentence on crimes ranging from murder and rape, to drug trafficking and sex with a minor.

The survey has now closed, but the questions and the detailed results can be viewed here (http://myviews.justice.vic.gov.au/results.html)/on the Victorian Department of Justice Website. The respondents were provided with a short summary of the offence (approximately 100 words) and then asked to indicate the sentence they would impose.

The sentencing options ranged from a fine to life imprisonment.

The obvious reality is that 100 word summaries cannot possibly hope to assist the respondents in appreciating the complexity of a criminal offence. Even the most minor criminal offences have a large number of variables which need to be taken into account in sentencing.

In more serious matters, significant time and effort is expended on a sentencing exercise and all of the competing considerations are carefully and deliberately weighed before a decision is made. This survey oversimplified the process to farcical levels.

What possible purpose could such a survey have? If the Victorian government wanted to know what offences people regarded as most abhorrent, then there are far more accurate means of doing so.

Equally, the survey was a crude and ineffective way of ascertaining whether there was general community dissatisfaction with the severity of sentences handed down by the courts.

Sadly, it seems most likely that the only purpose that the government had in mind was pandering to the increasingly vocal portion of society who believe that judges are far too soft on offenders. Unsurprisingly, the results of the survey suggest that the community would like to see massive increases in the penalties handed down by courts.

The survey may have been done simply to make it seem that the government is listening to community opinions. Of far greater concern, the government may be laying the groundwork for increases in mandatory penalties and the removal of judicial discretion — searching for outrage so that there is justification for draconian action.

No matter the reason, the survey should be of concern to those Victorians who value considered, sensible lawmaking over reactionary pandering. A legislature guided by a desire to sate the simplistic aspects of retribution and retaliation is a legislature that will only worsen a crime problem.

Premier Ted Baillieu is still new at his job. After 11 years in the wilderness, one can understand an eagerness to bring about change. We can only hope that this survey is not the prelude to an avalanche of reactionary, small minded changes to the criminal law in Victoria.

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Andrew is a criminal defence lawyer from Sydney. In all the spare time that leaves him, he blogs about NSW politics at mrtiedt.blogspot.com, and tweets about that and other things as @mrtiedt

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