Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

25 Pages Posted: 6 Jun 2009

Date Written: April 19, 2009

Abstract

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. Proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality which is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.

Keywords: General Law, The doctrine of proportionality, punishment

Suggested Citation

Kirchengast, Tyrone, Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike? (April 19, 2009). UNSW Law Research Paper No. 2009-15. Available at SSRN: https://ssrn.com/abstract=1415148 or http://dx.doi.org/10.2139/ssrn.1415148

Tyrone Kirchengast (Contact Author)

Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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