Under Control, But Out of Proportion: Proportionality in Sentencing for Control Order Violations

Abstract

The use of control orders is among the most significant and controversial elements of the Australian legal response to the threat of terrorism. Following two recent sentencing decisions for control order violation in the NSW District Court, it is now possible to offer some commentary upon the extent to which the control order regime has been responsive to traditional normative constraints in sentencing within the criminal justice system. This article argues that the concern that the defendant has (or had) evinced an intention to engage in terrorist conduct may loom overly large in the courts’ assessment of proportionality for control order violations. It posits two foundational aspects of the proportionality assessment which ought to be considered in sentencing control order violations – the significance of the interests protected by the order, and the gravity of the conduct constituting breach.

Keywords: terrorism, control orders, sentencing