Conditioning Sentencing to Prevent Double Counting of Offenders who Commit Offences while on Conditional Liberty

33 Pages Posted: 19 Jan 2023

See all articles by John Anderson

John Anderson

University of Newcastle (Australia) - Newcastle Law School

Brendon Murphy

University of Newcastle (Australia) - Newcastle Law School

Mirko Bagaric

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

Date Written: September 3, 2022

Abstract

Defendants in criminal matters can be placed on numerous forms of conditional liberty, including bail, parole and community-based orders. Committing offences while on conditional liberty is regarded as an aggravating sentencing consideration. This results in heavier penalties often being imposed on this cohort of offenders. While this is a well-established sentencing principle, its doctrinal rationale remains unclear and, in some instances, seemingly flawed. In certain circumstances, committing an offence while on conditional liberty is a separate offence. In other situations, the breach of conditional liberty results in incidental punishment, such as revocation of bail or parole. Thus, increasing sanction severity for offenders who commit offences while on conditional liberty can result in double punishment. We propose a principled doctrinal approach for dealing with offences which are committed while on conditional liberty which would inject doctrinal clarity and fairness into the sentencing process.

Keywords: Sentencing, Conditional Liberty, Double Punishment

JEL Classification: K14

Suggested Citation

Anderson, John and Murphy, Brendon and Bagaric, Mirko, Conditioning Sentencing to Prevent Double Counting of Offenders who Commit Offences while on Conditional Liberty (September 3, 2022). Melbourne University Law Review, Vol. 46, No. 1, 2022 , Available at SSRN: https://ssrn.com/abstract=4326666

John Anderson (Contact Author)

University of Newcastle (Australia) - Newcastle Law School ( email )

Level 5
409 Hunter Street
Newcastle, New South Wales 2300
Australia
+61 2 49217099 (Phone)
+61 2 49218866 (Fax)

HOME PAGE: http://www.newcastle.edu.au/profile/john-anderson

Brendon Murphy

University of Newcastle (Australia) - Newcastle Law School ( email )

1 University Drive
Callaghan, NSW 2308
Australia

Mirko Bagaric

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

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
18
Abstract Views
206
PlumX Metrics