Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is the Instinctive Synthesis
UNSW Law Journal Vol. 38, No. 1, 2015
39 Pages Posted: 18 Sep 2015 Last revised: 28 Oct 2015
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.
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