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Justice and Utility in Sentencing - Gascoigne Revived?

NCJ Number
88594
Journal
University of Queensland Law Journal Volume: 12 Issue: 1 Dated: (1981) Pages: 43-72
Author(s)
I G Campbell
Date Published
1981
Length
30 pages
Annotation
Based on the 1964 Queensland (Australia) decision in 'Gascoigne' and the principle enunciated by Murphy J. in 'Veen,' as well as other judicial decisions, what is proportionate to the gravity of the offense must be the ceiling for any punishment, regardless of the offense or the prospect of the offender's dangerousness.
Abstract
The logic of the rehabilitative theory demands that if an offender cannot be reformed, he must be incapacitated indefinitely. Such was the view of the trial judge in 'Gascoigne' when he sentenced the appellant to life imprisonment after he stabbed a female stranger believing she was his girl friend. Evidence at trial showed the offender to be a chronic alcoholic with schizophrenic delusions, a condition not expected to be materially altered in the future. On appeal, the court substituted a sentence of 5 years imprisonment, pointing out that there is provision under Queensland statutes to transfer a mentally disturbed offender from prison to a mental hospital, from which release is not automatic upon expiration of the sentence. The court's decision emphasized the importance of making sentences appropriate to offenses, while any future dangerousness by reason of mental illness must be the concern of other than sentencing authorities. The trial court judge may have drawn his sentence from the view in England that a life sentence is 'merciful' when imposed on a mentally-ill offender, because it offers an indefinite period for treatment, and release can be secured upon rehabilitation. Such a view is unrealistic, given the erratic and uncertain nature of treatment received by prisoners and the remote prospects of successful treatment for many mentally-ill offenders. A total of 114 footnotes are provided.