Courts of Appeal and Sentencing: Policy and Politics

Abstract

In the context of courts of appeal and sentencing, the interrelationships between the judiciary, the executive and the legislature raise a number of difficulties. In particular, in response to concerns about inconsisten­cies and disparities in sentencing, new strategies such as guideline judgments, sentencing guidelines, sentencing commis­sions and various forms of sentencing advisory bodies have emerged in most common law jurisdictions. The implications of these developments for courts of appeal is examined in this article with a particular focus on the prob­lematic distinction between sentencing principles, senten­cing policies and ‘judicial legislation’. It is argued that the general trend of continuing confinement and structuring of judicial discretion in sentencing in Australia and elsewhere is likely to recast the traditional relationship between the judicial, legislative, and executive branches of government.

Keywords: Judicial legislation, courts, politics, separation of powers

JEL Classification: K4, K40, K49