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.
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. …