The Illusion of Principled Justice: The Fiction That Sentencing Principle Is Applied Consistently

Abstract

It is widely acknowledged that there is a lack of transparency and a considerable degree of inconsistency in Australian sentencing. Courts have dismissed this potential violation of the rule of law, including the principle of equal justice, on the basis that they are applying sentencing principle uniformly, which is more important than reaching ‘numerical or mathematical equivalence’ between sentences in like cases. This article argues that it is not feasible for Australian courts to apply sentencing principle consistently at present because courts retain a wide discretion regarding which principles they apply and the nature and scope of many cardinal principles are obscure and poorly defined. Currently, therefore, the appeal to consistency in the application of principle is merely a convenient retort, which is used to defuse charges that sentencing is an area of the law that is inconsistent and often unpredictable. Acknowledging this shortcoming would be the first step towards making sentencing a more coherent and rational process.

Keywords: Sentencing, discretion, illusory justice

JEL Classification: K14