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Spammers, phishers escape proper punishment

Little guidance for judges on how to set cyber-crims straight

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Australia has no data describing the sentences imposed upon criminals convicted of crimes enabled by phishing and similar scams and no guidelines for sentencing such crimes, leaving Judges with little guidance to fashion effective and appropriate punishments.

That's the thrust of a paper from the Institute of Criminology, Sentencing scammers: Law and practice.

The paper considers only consumer frauds, but does cover “money transfer requests; banking, credit card and online account scams; golden investment opportunities and health and medical scams,” all of which are common crimes generated by unsolicited email. The research goes on to note that “there are no comprehensive data available in Australia on sentencing practices in relation to those convicted of carrying out a scam” and therefore little chance of assessing their effectiveness.

Judges therefore apply general sentencing principles when punishing scammers, considering if sentences are proportional, likely to act as a deterrent and/or punishment, and taking into account the magnitude of the crime and the criminal's intentions and culpability in each matter.

The research also notes that it is hard to know if Australia's different jurisdictions sentence scammers consistently. It also queries whether, in light of recent cases, sentences are sufficiently flexible to offer judges options that allow a response to particular crimes.

The research concludes that:

“What is required now, however, is greater guidance for criminologists and legal practitioners about how sentencers do and should respond to such cases. Research is therefore required on the types of sentences currently imposed in consumer fraud cases, including any jurisdictional variation.”

Further, the research points out, the UK has recently developed a fine model for sentencing fraudsters, and therefore recommends that:

“In light of the paucity of research and clear guidance in Australia this area, it may be of benefit for Australian researchers, policymakers, practitioners and judicial officers to collaborate in developing guidelines such as those [from the UK] ...in order to promote consistency of approach in similar cases.”

But the research also says that while “a harmonised approach is particularly desirable, given the likely inter-jurisdictional nature of the offences” the need to tailor sentence for such crimes means it is “undesirable to set down any prescriptive mandatory minimum sentences.” ®

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