Cardinal Pell and the Science of Sentencing

A breakdown of Pell’s sentencing

Cardinal George Pell has been sentenced to six years imprisonment for sexual offences committed against two choir boys in 1996.

He received a non-parole period of three years and eight months, meaning that he can apply for parole in October 2022.  

Pell has been registered as a sex offender and will remain a registered sex offender for the rest of his life.

The proceedings have ignited criticism from victims’ groups and the general community.

In anticipation of the immense public scrutiny that the sentence has attracted, Judge Kidd made the following remark:

“Sentencing is often simplistically portrayed by some in the public sphere as being an easy and uncomplicated task. From where I sit today, the exercise is far from an easy one.”

Contrary to popular belief and what is reported by some media outlets, sentencing is a science. Below, we discuss some considerations that have influenced Judge Kidd’s sentencing.  

What influenced Judge Kidd’s decision?

Judge Kidd took over 70 minutes to deliver the sentence, as he read aloud his 37-page judgment.

The full transcript of the judgment can be read here.

In deciding on an appropriate sentence, Judge Kidd took into account:

Aggravating factors:

·      The gravity of Pell’s offending; which was comprised of both an objective assessment and consideration of the contextual circumstances (breach of trust and abuse of power)

·      The impact on the victim

·      Pell’s lack of remorse  

Mitigating factors:

·      Pell’s background and character

·      Pell’s lack of prior convictions

·      Pell’s age and health

·      The fact that Pell does not present a risk of reoffending

·      The impact of extra-curial punishment

·      Pell’s likely experience in custody

Other considerations:

·      The purpose of general deterrence, just punishment and denunciation

·      Maximum penalties available and current sentencing practices

·      The concepts of cumulation and totality

What is extra-curial punishment?

Extra-curial punishment is punishment that is inflicted on an offender otherwise than by a court of law. The type of conduct that may constitute extra-curial punishment includes things like abuse, harassment and threats of personal injury. A court is entitled to consider extra-curial punishment as a mitigating factor when imposing a sentence on an offender.   

Judge Kidd outlined that he took extra-curial punishment considerations into account. The matters that Judge Kidd took into account were: 

·      As a result of this prosecution and conviction, Pell has faced public criticism and scorn with respect to other alleged offences for which he was not charged and for charges which were later dismissed

·      Pell has endured the stress of having to rebut many charges that did not proceed to trial

·      Pell had to endure protests and verbal abuse when arriving and departing from court

·      Pell has been ridiculed in the press  

Principle of totality  

The totality principle is a common law principle that applies in cases where an offender has been convicted of multiple offences. Adhering to the principle of totality requires a judge to ensure that the overall sentence imposed is a “just and appropriate measure of the total criminality involved”.

As Judge Kidd pointed out in his judgment, there is a presumption in law that sentences are to be served concurrently. This means that if multiple terms of imprisonment are imposed for a number of offences, the presumption is that these sentences will be served at the same time, in an overlapping way.  

In this case, Judge Kidd reversed the presumption in respect to some of the charges, declaring that only charges 1 – 4 would be served concurrently (for the most part).  

Maximum penalties

In Victoria, the maximum penalty for committing an indecent act with a child under the age of 16 is 10 years imprisonment. The maximum penalty for sexual penetration of a child aged between 12-16 years is 15 years imprisonment. 

However, Judge Kidd acknowledged that the maximum penalty for an offence is not the determinative factor in a sentence. He referred to the maximum penalty for the offences as “one of the range of factors that Parliament has prescribed that I must have regard to”.

Individualised justice and general deterrence

In determining Pell’s sentence, Judge Kidd was required to consider all the relevant matters and impose a just penalty which reflected all the circumstances. He was required to consider the specific facts of the case, as this “is what individualised justice demands”.  

In considering the contextual circumstances around which Pell’s offences were committed, Judge Kidd was careful not to impinge on the concept of general deterrence, which is a significant purpose of punishment in child sexual abuse cases, stating:

“The message which the Courts send to would-be child sexual offenders must be unequivocal. They must be dissuaded, whether the offending is planned or whether it is the result of a spur of the moment decision”.

Judge Kidd emphatically rejected the submission of Pell’s counsel that general deterrence was an irrelevant consideration in this matter.

Live broadcast, in the interest of open justice

Pell’s sentencing was broadcast live. Pell’s legal counsel objected to the broadcast, their concern being that such a recording would remain on the internet indefinitely. Pell’s counsel submitted that if Judge Kidd chose to proceed with the broadcast, then this should be considered a form of extra-curial punishment, which should then be taken into account in sentencing. Judge Kidd rejected that view, labelling the argument as “irrational”.

Judge Kidd held the view that broadcasting his sentencing remarks was a “clear demonstration of transparent and open justice”. The concept of open justice has been at the centre of media debate in this case, after a controversial suppression order was in place until February 2019.

Is it over?

The Pell case has saturated the media, both domestically and on an international level. It has ignited debate, awakened trauma and initiated many conversations. 

However, it is not over yet. The public is still awaiting the result of Pell’s appeal, which is scheduled for June 2019.

For advice or representation for a sentencing matter, or any other criminal matter, please contact Hamilton Janke Lawyers 24 hours a day, 7 hours a week on 4038 1666 (office hours) or 0422 050 502 (24/7).

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