The Illusion of Principled Justice: The Fiction That Sentencing Principle Is Applied Consistently

Australian Bar Review (2019) vol 47 Forthcoming

26 Pages Posted: 25 Mar 2019

See all articles by Mirko Bagaric

Mirko Bagaric

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

Gabrielle Wolf

Deakin Law School

Brienna Bagaric

Deakin University, Geelong, Australia - Deakin Law School

Date Written: January 1, 2019

Abstract

It is widely acknowledged that there is a lack of transparency and a considerable degree of inconsistency in Australian sentencing. Courts have dismissed this potential violation of the rule of law, including the principle of equal justice, on the basis that they are applying sentencing principle uniformly, which is more important than reaching ‘numerical or mathematical equivalence’ between sentences in like cases. This article argues that it is not feasible for Australian courts to apply sentencing principle consistently at present because courts retain a wide discretion regarding which principles they apply and the nature and scope of many cardinal principles are obscure and poorly defined. Currently, therefore, the appeal to consistency in the application of principle is merely a convenient retort, which is used to defuse charges that sentencing is an area of the law that is inconsistent and often unpredictable. Acknowledging this shortcoming would be the first step towards making sentencing a more coherent and rational process.

Keywords: Sentencing, discretion, illusory justice

JEL Classification: K14

Suggested Citation

Bagaric, Mirko and Wolf, Gabrielle and Bagaric, Brienna, The Illusion of Principled Justice: The Fiction That Sentencing Principle Is Applied Consistently (January 1, 2019). Australian Bar Review (2019) vol 47 Forthcoming. Available at SSRN: https://ssrn.com/abstract=3345030

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

Gabrielle Wolf

Deakin Law School ( email )

221 Burwood Highway
Burwood
Victoria 3125
Australia

Brienna Bagaric

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

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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