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Just deserts instead of potluck in sentencing

By Mirko Bagaric - posted Wednesday, 2 August 2006


Recently the Australian Law Reform Commission tabled a report in federal Parliament, Same Crime, Same Time: Sentencing of Federal Offenders, which highlights gross sentencing inconsistencies. The report notes that “offenders who have committed the same crime can receive very different outcomes. To fix this palpable unfairness the report has called for the introduction of a new Federal Sentencing Act to promote “consistency, clarity and transparency”.

This is a message that must be heeded by all legislatures in Australia, especially state governments under whose laws most criminals are sentenced in Australia.

Following a string of high profile outrageously light sentences handed out to sex and violent offenders, community confidence in the sentencing across Australia has plummeted to an all time low. A community based petition proposing transparent and tougher sentences for serious offenders has already attracted more than 12,000 signatures in Victoria alone.

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The community plea to finally fix the policy and rationality wasteland that is sentencing law can no longer be ignored.

The present system is an intellectual basket-case because it lacks an overarching rationale and is devoid of transparency. Sentencing outcomes in Australia are unpredictable and often flawed because there are about 300 different (mainly misguided) aggravating or mitigating variables that judges can pluck out at a whim to justify their intuitive predilections.

Common aggravating factors include breach of trust and the prevalence of an offence. Mitigating considerations include such things as the age of offender and remorse.

These should all be abolished. Empirical studies provide no evidence that giving weight to them will advance the goals of a properly structured sentencing system.

It is especially galling that remorse by offenders should serve to reduce the penalty. Remorse is usually just regret at being caught. Moreover, minimal decency commands that people should be sorry for harming others and people should not get a benefit for behaving in a manner that is expected of them.

The way to inject fairness and community confidence into sentencing is to adopt a clear rationale for the system and to develop it on the basis of research findings regarding what can actually be achieved through a state run system of punishment.

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A principal objective must be to ensure that offenders get their “just deserts”. This can only be achieved by adopting the principle of proportionality, which prescribes that the pain inflicted by the punishment should equal the harm caused by the offence.

This formula should not be distorted by misguided considerations such as remorse or a desire to rehabilitate offenders. The empirical evidence shows that rehabilitation doesn’t work. Neither do other goals which currently serve to increase penalties, such as specific deterrence - offenders who commit the same offence recidivate at the same rate, irrespective of whether they are dealt with by way of a fine or imprisonment.

Just deserts is best secured by setting penalties for all offences by way of predetermined grid - with mandatory terms of imprisonment only for crimes that cause the most distress to victims.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is the author of 20 books and over 100 refereed scholarly articles. He is not connected with any political party or other interest group. He is the author of Australian Human Rights Law (forthcoming). Mirko is the author of Being Happy and Dealing with Moral Dilemmas.

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