Chapter 5
Devising and consulting on draft penalty categories

Public consultation on penalty categories

5.4Once the draft penalty categories from Step 6 had been finalised, we engaged the market research firm Colmar Brunton to undertake some targeted public consultation. Our aim was to ascertain whether the approach taken by members of the public in assessing offence seriousness and offender culpability was in line with our methodology, and, if not, the nature of any discrepancies.

5.5In order to do this, we gave Colmar Brunton 28 scenarios that we considered fell within the worst class of case for a range of selected offence categories. Colmar Brunton then circulated those scenarios to 62 people who had agreed to participate in eight focus groups. They were asked to rank the scenarios in order of seriousness and return the results to Colmar Brunton before the focus groups were held.

5.6The composition and location of the focus groups are set out on page 7 of the Colmar Brunton report, which is attached as Appendix C. Although discussions amongst the participants were lengthy and wide ranging, they were essentially taken through the following steps:

5.7The results of the exercise are set out in full in the report. Of most relevance to us is the dispersal in rankings that is demonstrated by the diagram on page 49 of the report, and the discrepancies between our ranking and the group post-discussion ranking that is set out in the table on page 47.

5.8Perhaps the most significant finding was that, even after the group discussion, there was a very wide dispersal of views around the median ranking in respect of all of the offences in the middle range of seriousness. In respect of a couple of offences (scenarios 16 (Nikolas) and 18 (Angela)), there was very little agreement at all. Moreover, in this middle range, focus group participants not only frequently disagreed with each other, but also often ended up with a median ranking substantially at odds with our own.

5.9This is perhaps not surprising. Views about the seriousness of offending are heavily value-laden and significantly influenced by a person’s upbringing, culture and individual experience. It demonstrates, if nothing else, the need for a systematic methodology in assessing what maximum penalty should attach to particular offences. There may end up being little common agreement about the basis for that methodology, but at the least it would mean that all offences were being approached in the same way.

5.10However, there were some systematic differences between the approach taken by the focus group participants and our own approach. We reviewed our scoring in the light of those differences.

Physical integrity

5.11In line with our methodology, participants generally saw physical integrity as the most important factor in assessing seriousness. However, there were two respects in which their approach to physical integrity somewhat differed from our own. In neither case did we think that they justified a change in our approach.

5.12First, participants sometimes had a natural emotional response when confronted with scenarios that involved victims with whom they could identify, perhaps because the harm was immediate and obvious or because they felt that “it might be them one day”. They were therefore likely to rank the crimes in those scenarios as more serious than others that inflicted as much or even greater harm. However, in our view this is not an appropriate basis for determining relative seriousness. We assessed the level of harm on a more objective basis, which accounted for some of the discrepancies between our ranking and theirs.

5.13An example of this can be found in the comparative rankings of scenarios 11 (Ted) and 12 (Tony). We ranked the former 11th and the latter 12th, while the focus group participants ranked them 22nd and 3rd respectively. The former was a scenario comprising the offence of making threats of widespread harm to people or property under s 307A of the Crimes Act, and entailed a hoax that animals on a particular farm had been deliberately infected with foot and mouth disease and that other farms would be similarly infected. The harm, though diffused, was widespread and substantially affected the livelihood of a large number of farmers and the economy as a whole. The latter was a scenario comprising the offence of ill-treatment or neglect of a child or vulnerable adult under s 195 of the Crimes Act, which entailed on-going low level violence against the offender’s eight year old son combined with other forms of abuse and serious neglect. Clearly the focus group participants more readily related to the harm caused by the latter than the former. However, our scoring of the former took into account the substantial actual or potential aggregate harm to the variety of interests affected by it and hence placed the two offences at an equivalent level. We note that this is more or less consistent with their current maximum penalties. We therefore saw no need to change our scoring in the light of the focus group results.

5.14Secondly, participants tended to attach a great deal of weight to the vulnerability of a victim (which is often an aggravating feature underlying the worst class of case), and therefore regarded cases with young or elderly victims as more serious because of this than we did. Perhaps the most obvious example of this was scenario 25 (Dominik), which involved an assault on an elderly person in a rest home that did not cause any significant injury. While we ranked it 25th, their median ranking was 13, putting it ahead of an offence involving the presentation of a loaded sawn-off shotgun at police officers in order to evade arrest.

Material support and amenity interestTop

5.15In relation to the material support and amenity interest, focus group participants regarded financial loss as serious, and at least in that respect were in agreement with our own approach. However, they again differed from us in two significant ways, and again we saw no need to change our approach after a review of it.

5.16First, at least by comparison with physical integrity, most participants tended to give it a somewhat lower weighting than we did. Indeed, they tended to regard physical harm as more serious than any kind of financial harm, regardless of the amount of financial loss incurred. For example, we gave scenario 6 (Peter), that comprised both blackmail involving the payment of $1 million in cash and the threat of physical harm to the victim's son, a ranking of six out of 28, whereas focus group participants ranked it 18th. Their ranking meant the offence was regarded as less serious than scenario 25 mentioned above (assault on an elderly patient in a rest home involving some slapping and punching, but without any significant injury). While these differences between the median ranking and our ranking might suggest the weight we attached to the material support and amenity interest was too high, we think our approach to that interest is not significantly at odds with either the current legislative approach to offences involving property loss or damage, or current sentencing practice. None of the glaring anomalies in current maximum penalties we draw attention to in the next chapter can be attributed to our methodology placing insufficient weight on the material support and amenity interest. After consideration, therefore, we did not make any change to our approach in this respect.

5.17Secondly, as with physical integrity, participants tended to take into account not only the dollar value involved in offences involving property loss or damage but also the nature of the victim and the extent to which they could relate to him or her.

5.18They were likely to see a crime against a corporation or business entity as less serious than a crime against an individual victim. For example, they gave scenario 9 (Tevita) a ranking of 21. This was presumably on the basis that, although it involved an arson causing $1.2 million in loss and damage, it involved containers in a shipping yard. In contrast, we gave it a ranking of nine because of the dollar value of the loss and the large number of victims potentially affected.

5.19They were also likely to see a crime as less serious when the harm it caused was diffused. For example, we ranked scenario 1 (John), that involved contamination of food products causing widespread and serious food poisoning amongst the population and $300 million in lost exports, at the top of the scale of seriousness. In contrast, participants ranked it ninth, at least in part because the economic harm was less individualised and more diffused than more moderate harm perpetrated against one individual, so they could more easily “gloss over” the aggregate effects.

Actual versus intended consequenceTop

5.20Participants took much the same approach to culpability as we did. In particular, they saw offences committed with intention, malice and premeditation as much more serious than those that constitute dangerous or negligent behaviour with unintended consequences. In general terms, therefore, our adjustments to the harm score on account of culpability seemed to be supported.

5.21However, they viewed much more seriously than we did conduct where there was an intention to cause more serious harm than eventuated. For example, they gave scenario 20 (Roger), which comprised conduct causing relatively minor injury where there was an intent to cause grievous bodily harm, a ranking of 10 by comparison with our ranking of 20.

5.22Similarly, they viewed preparatory conduct and conduct that only indirectly contributed to the eventual harm as somewhat more serious than we did. For example, in scenario 16 (Nikolas) the offender had put together a highly detailed document explaining how to make a bomb, which he placed on the Internet in the knowledge that it would probably be used by a terrorist group. That document was subsequently used to make a bomb that killed 120 people. Although the offender had no idea which group might use the document and no intent to kill anyone, the focus group participants nevertheless ranked it 10th, six places above us.

5.23In light of these findings, we reviewed our scoring for preparatory conduct and conduct indirectly causing harm. While we did not change our protocol for scoring risk, we decided that in some cases we had underestimated the intensity of the risk and changed the scoring accordingly.

5.24We should note that, as discussed below at paragraph 6.41, a number of the anomalies we identified in current maximum penalties appear to derive from the fact they understate the seriousness of the harm the preparatory conduct would cause if carried through to fruition. In that respect, the findings from the focus group discussions show, in the view of participants, the anomalies are even greater than we have suggested.