Addressing the Curious Blackspot that is the Separation Between the Principle of Legality and Sentencing
journal contributionposted on 29.10.2019 by Mirko Bagaric;Theo Alexander
Any type of content formally published in an academic journal, usually following a peer-review process.
The principle of legality has evolved into a clear and entrenched jurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and freedoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legal system operates in its most coercive manner against individuals. In this article, we argue that logically the principle of legality has an important role in the sentencing system given the incursions by criminal sanctions into a number of basic rights, including the right to liberty, the freedom of association and the deprivation of property. By way of illustration, we set out how the principle of legality should apply to the interpretation of key statutory provisions. To this end, we argue that the objectives of general deterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send off enders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of off enders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.