The 'day fine'--improving equality before the law in Australian sentencing.

Author:Bartl, Benedict
 
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ABSTRACT

In sentencing offenders in Australia to a fine it has long been considered uncontroversial that the principle of equality before the law is upheld. This is because similar sanctions are imposed on offenders convicted of the same offence and the circumstances of the financially disadvantaged offender are taken into account in the imposition of a reduced fine. However, this long-held view fails to address the large number of offences for which a minimum fine is legislatively prescribed and where, in

circumstances where judicial discretion is allowed, fines are not increased relative to the offender's wealth. In contrast, Germany and many other continental European countries have adopted an income-based fining system known as the 'day fine'. This is a fining system in which the economic burden of the fine is felt similarly by both the wealthy offender and the financially disadvantaged offender. With a particular emphasis on Germany, this article argues that the 'day fine' has the potential to reduce Australia's reliance on imprisonment, increase public confidence in sentencing and better meet the principle of equality before the law.

I INTRODUCTION

From time to time newspaper reports appear in Australian newspapers of exorbitant fines being sanctioned in European courts for what appear to be minor transgressions. Examples include a Finnish businessman ordered to pay a staggering 116,000 [euro] for speeding, a German footballer penalised (90,000 [euro] for insulting a policeman and an Englishman fined 1,200 [pounds sterling] for littering. While these sentences at first appear to be disproportionately harsh, they are in fact founded on recognition of the principle of equal treatment, that is, that the impact of the sentence should be similar despite the wealth of financial disadvantage of the offender. (1)

In Germany and many other continental European countries the principle that the fine should have a similar punitive bite on all offenders is applied in practice. (2) Alternatively, Australia and the majority of jurisdictions with a common law tradition have embraced a different system, in which judicial starting points or 'tariffs' of what an appropriate fine is, mean that there is little discretion to increase the amount of a fine on a wealthy offender. Additionally, many offences require the imposition of a minimum fine, for which no discretion exists to reduce the amount of the fine for financially disadvantaged offenders. (3) Paradoxically, despite the well-reported difference in fine amounts imposed, the principle of equal treatment is aspired to in both systems, with Australia adopting literally the mantra 'like penalty for like offence', whereas in Germany the mantra is 'like punitive bite of penalty for like offence'.

At first the European 'day fine' appears to encourage unequal treatment, as offenders committing similar offences may be sanctioned to significantly different fine amounts. However, the underlying justification is that fairness in the imposition of a fine is best achieved through the adoption of a two-step process. Firstly the gravity of the offence is assessed on the basis of the culpability of the offender to determine the number of day fine units, and then the value of each unit is dependent on the means of the offender to ensure that the economic burden is felt equally on offenders. (4) The ability of the day fine to both reflect the seriousness of the offence and to equalise the impact of the sentence has ensured that it remains the preferred sanction for a broad spectrum of criminal offences, some of which were formerly subject to a custodial sentence. (5) In Australia on the other hand, proposals for the introduction of the day fine continue to be rejected, despite criticism of the sentencing system's reliance on imprisonment and its failure to adequately consider the financial circumstances of the offender when imposing a fine. (6) With a particular emphasis on Germany, this article argues that the day fine system legitimises the credibility of the fine as a sentencing sanction, ensuring broad application and concomitantly reducing dependence on custodial sentences.

This article begins with an overview of the principle of equality before the law including the right to non-discrimination and equal treatment. A brief outline is provided of how the criminal justice system sanctions a disproportionate number of socially and financially disadvantaged offenders and it is argued that the sanctions imposed against them often fail to meet the principles of non-discrimination and equal treatment. A critical discussion of Australia's imprisonment system follows, in which it is argued that many of the assertions underpinning legislative and judicial support for custodial sentences are either false or can be achieved through less intrusive sanctions. The article then turns to a comparison of the Australian and German fining systems, concluding that the establishment of the day fine system in Australia's sentencing regime would lead to greater adherence to both non-discrimination and equal treatment, and thereby better meet the important principle of equality before the law.

II EQUALITY BEFORE THE LAW: NON-DISCRIMINATION AND EQUAL TREATMENT

Equality before the law is one of the fundamental rights of the international community, recognised in human rights instruments internationally, nationally and in Australia at a state level. (7) Equality before the law seeks to safeguard two principles: non-discrimination and equal treatment. (8) The principle of non-discrimination requires that people are not discriminated against on grounds including race, gender, religion, sexual orientation or wealth. (9) Equal treatment on the other hand recognises that difference exists, but seeks to ensure that substantive equality is achieved. (10) In short, the principle of equality seeks to prevent like situations being treated differently, and different situations being treated alike.

In Australia, the principle of equality before the law is assured through a number of measures including the requirement that judicial officers take an oath to administer the law without fear, favour, affection or ill-will and the availability of legal assistance through Legal Aid Commissions and Community Legal Centres. In sentencing, the principle is thought to be achieved through the long-held common-law principle that in imposing a fine on financially disadvantaged offenders the amount will be reduced. In such cases, non-discrimination is assured through the courts sanctioning of both the wealthy and the financially disadvantaged offender with a fine, thereby upholding the principle that offenders convicted of the same offence will be sanctioned similarly where the degree of culpability is comparable. (11) Equal treatment is also recognised through the sanctioning of a socially disadvantaged offender with a reduced fine. The fine amount is different but at the same time equal in terms of impact.

Unfortunately, for a number of reasons, the principle of equality in Australia's criminal justice system has been compromised. Firstly, financially disadvantaged offenders are more likely than their more wealthy counterparts to be sanctioned in the criminal courts. (12) A good example is social security fraud, which is more likely to be prosecuted than tax fraud, although the economic impact of tax fraud is significantly higher. (13) Additionally, crimes committed disproportionately by the wealthy, such as white-collar crime, are far more frequently dealt with outside the formal criminal justice system, such as a statutory agency 'policing' and where prosecution is considered a last resort. (14)

In fining offenders, the disproportionate number of financially disadvantaged offenders means that the tariff adopted by the courts will usually be at the lower end ensuring that the fine imposed on wealthier offenders cannot meet the principle of equal treatment. It should also be acknowledged that even a reduced tariff does not ensure that the effect of the fine will not be onerous for the financially disadvantaged offender. As well, the widely accepted judicial view holds that unless legislatively mandated, the fine will not be increased because of the offender's wealth, (15) meaning that the fine continues to be imposed disproportionately harshly on financially disadvantaged offenders.

Further, despite the common-law assurance of a fine reduction for financially disadvantaged offenders, there is no guarantee that consideration of the financial circumstances of the offender actually occurs in practice. For example, a study carried out in 2004 in the Brisbane Magistrates Court established that whilst more than half (56 percent) of those convicted of public nuisance offences were financially disadvantaged, the fine imposed was higher than that imposed on offenders convicted of the same offence but not assessed as financially disadvantaged. (16) The failure to consider the financial circumstances of the offender is not limited to Queensland with a survey of Magistrate Courts carried out in New South Wales during 2007 reporting that 76 percent of Magistrates would only 'sometimes' impose an alternative sentence in circumstances where the offender could not afford to pay the fine. (17)

Additionally, the principle of non-discrimination, with its emphasis on ensuring that financially disadvantaged offenders are not treated less favourably, is breached when wealthier offenders, who have paid restitution, receive a reduced sentence, when compared with the financially disadvantaged offender, who is unable to make such payment. (18) Further, the courts may discriminate by imposing a more severe sentence on the financially disadvantaged offender. For example, Ashworth noted that the financially destitute are more likely to be sanctioned with the more severe sentence of community service, when they should in fact receive either a...

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