Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis

UNSW Law Journal Vol. 38, No. 1, 2015

Deakin Law School Research Paper No. 15-04

39 Pages Posted: 18 Sep 2015 Last revised: 28 Oct 2015

See all articles by Mirko Bagaric

Mirko Bagaric

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

Date Written: 2015

Abstract

Sentencing is the last bastion of law where judges have largely unfettered discretion. This is paradoxical given that sentencing is the area of law where the State acts in its most coercive manner - it has a profound impact on the lives of offenders and victims. Deliberately inflicting pain on offenders requires a sound justification and adherence to fundamental rule of law ideals in the form of transparency and consistency. The judiciary have resisted attempts to fetter their sentencing discretion. The arguments that have been used to preserve the breadth of the sentencing discretion are logically and jurisprudentially flawed and lead to outcomes that are pragmatically undesirable, to the point where the High Court of Australia has stated recently that the prosecution is not permitted to make submissions about an appropriate sentence. This is likely to discourage accused persons from pleading guilty. Further, an unfettered sentencing discretion facilitates the expression of subconscious judicial bias which has been shown to exist in relation to a number of traits including race, sex, physical appearance and economic status. This article explains why the current sentencing methodology in Australian is flawed and argues that a more rigorous and coherent approach to sentencing offenders is necessary.

Suggested Citation

Bagaric, Mirko, Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis (2015). UNSW Law Journal Vol. 38, No. 1, 2015 , Deakin Law School Research Paper No. 15-04, Available at SSRN: https://ssrn.com/abstract=2661910

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

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
231
Abstract Views
1,421
Rank
240,351
PlumX Metrics