Nice or Nasty? Reasons to Abolish Character as a Consideration in Australian Sentencing Hearings and Professionals’ Disciplinary Proceedings

(2018) 44(3) Monash University Law Review 567

35 Pages Posted: 18 Aug 2020

See all articles by Gabrielle Wolf

Gabrielle Wolf

Deakin University, Geelong, Australia - Deakin Law School

Mirko Bagaric

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

Date Written: September 18, 2018

Abstract

An offender’s character is a consideration that often influences the outcomes of Australian sentencing hearings; good character is generally a mitigating consideration, while bad character can increase the severity of the penalty. Character can also play a central role in lawyers’ and health practitioners’ disciplinary proceedings and lead to determinations that restrict the practise of their professions. In this article, we argue that it is unfair and unnecessary for purported evaluations of the character of the subject of a sentencing or disciplinary hearing to influence decisions made in those matters about penalties or determinations respectively. The concept of character is vague and incoherent, and lacks any settled definition or empirical foundation. Consequently, judicial and tribunal decisions that are based on assessments of individuals’ character and impinge on their legal rights and interests may be unjust and violate the rule of law. Further, it is sufficient for decision-makers to evaluate the crime or misconduct of the subjects of sentencing and disciplinary hearings, without referring to their character, to reach decisions that achieve the appropriate objectives of those proceedings and, in particular, the protection of the community. We therefore propose that the law be reformed to abolish character as a consideration in sentencing hearings and professionals’ disciplinary proceedings.

Suggested Citation

Wolf, Gabrielle and Bagaric, Mirko, Nice or Nasty? Reasons to Abolish Character as a Consideration in Australian Sentencing Hearings and Professionals’ Disciplinary Proceedings (September 18, 2018). (2018) 44(3) Monash University Law Review 567, Available at SSRN: https://ssrn.com/abstract=3456308

Gabrielle Wolf (Contact Author)

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

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

Mirko Bagaric

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

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

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