Aggravating or Mitigating? Comparing Judges’ and Jurors’ Views on Four Ambiguous Sentencing Factors

(2018) Journal of Judicial Administration, 28: 51-66.

Posted: 15 Mar 2019

See all articles by Kate Warner

Kate Warner

University of Tasmania

Caroline Spiranovic

Faculty of Law, University of Tasmania

Arie Freiberg

Monash University - Faculty of Law

Julia Davis

University of South Australia - School of Law

Lorana Bartels

Australian National University (ANU) - ANU Centre for Social Research and Methods

Date Written: 2018

Abstract

Mental disorder, intellectual disability, intoxication and drug addiction are factors that are often raised in sentencing hearings, but the effect that these four conditions can have on an offender’s sentence is rarely studied. This article fills two gaps in our understanding of the relevance of these ambiguous sentencing factors: first, by analysing how judges in the County Court of Victoria responded to these factors in 122 sentencing cases relating to 140 sentenced offenders; and second, by comparing the views of the judges with those of 426 jurors who had tried those cases and who participated in the Victorian Jury Sentencing Study. It concludes that lay opinion on the relevance of these factors does not always align with judicial practice and discusses the implications of these findings.

Keywords: sentencing, jurors, mitigating factors, Australia

Suggested Citation

Warner, Kate and Spiranovic, Caroline and Freiberg, Arie and Davis, Julia and Bartels, Lorana, Aggravating or Mitigating? Comparing Judges’ and Jurors’ Views on Four Ambiguous Sentencing Factors (2018). (2018) Journal of Judicial Administration, 28: 51-66., Available at SSRN: https://ssrn.com/abstract=3340972

Kate Warner

University of Tasmania ( email )

French Street
Sandy Bay
Tasmania, 7250
Australia

Caroline Spiranovic

Faculty of Law, University of Tasmania

Private Bag 89
Hobart
Tasmania, 7001
Australia

Arie Freiberg

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Julia Davis

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia
83027209 (Phone)
83027128 (Fax)

HOME PAGE: http://people.unisa.edu.au/Julia.Davis

Lorana Bartels (Contact Author)

Australian National University (ANU) - ANU Centre for Social Research and Methods ( email )

Beryl Rawson Building (13)
Canberra, ACT 0200
Australia

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