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In Search of a Coherent Approach to Community Protection in Sentencing

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posted on 2021-12-18, 03:01 authored by Mirko Bagaric

Community protection has been proclaimed as the most important sentencing objective. Despite this, the contours of the principle have not been clearly articulated by the courts. When community protection is invoked by the courts, it is generally applied in a manner to increase sentence severity. However, in some circumstances it has been applied to justify a more lenient disposition; usually to facilitate the rehabilitation of the offender. Given the cardinal status of community protection in the sentencing hierarchy, there is a need to clarify the operation of the objective and the manner in which it should impact sentencing outcomes. It is argued that in order to apply community protection in a jurisprudentially sound manner, there are a number of important premises that need to be acknowledged by the courts. These include that community protection is only necessary where the offender is likely to reoffend. Further, 99% of offenders are released from prison and hence incapacitation is generally only a temporary manner in which to protect the community. Incorporating these considerations into the sentencing process will lead to more informed and accurate decisions regarding the likelihood that an offender will recidivate and enhance the efficacy of the sentencing process.


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AGLC Citation

Mirko Bagaric, 'In Search of a Coherent Approach to Community Protection in Sentencing' (2020) 46(3) Monash University Law Review 79