First-Time Offender, Productive Offender, Offender with Dependants: Why the Profile of Offenders (Sometimes) Matters in Sentencing

51 Pages Posted: 18 Sep 2015 Last revised: 28 Oct 2015

See all articles by Mirko Bagaric

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Theo Alexander

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2015

Abstract

Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependants? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, or those who have made a positive contribution to society, or who have dependants, more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses them to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependants and if imprisoning them is likely to cause harm to their dependants. Conferring a sentencing discount to first-time offenders and those with dependants does not license them to commit crime or unjustifiably encroach on the proportionality principle. Rather, it recognises the different layers of the legal system and the reality that sentencing law should not reflexively overwhelm broader maxims of justice, including the principle that innocent people should not suffer. This article argues that fundamental legislative reform is necessary to properly reflect the role that the profile of offenders should have in the sentencing regime.

Suggested Citation

Bagaric, Mirko and Alexander, Theo, First-Time Offender, Productive Offender, Offender with Dependants: Why the Profile of Offenders (Sometimes) Matters in Sentencing (2015). Albany Law Review, Vol. 78, No. 2, 2015; Deakin Law School Research Paper No. 15-05. Available at SSRN: https://ssrn.com/abstract=2661866

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Theo Alexander

Deakin University, Geelong, Australia - Deakin Law School ( email )

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