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Pursuing consistency: the effect of different reforms on unjustified disparity in individualised sentencing frameworks

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posted on 01.03.2017, 05:47 by Krasnostein, Sarah
Sentencing in Australia is founded upon two premises that are in perennial conflict: individualised justice and consistency. The first holds that sentences should be proportionate to the particular circumstances of each case. The second holds that similar offenders should receive substantively equal outcomes. While there is an inherent tension between both premises, they are both essential to a fair sentencing system. In grappling with these dual demands of proportionality and equality, however, different jurisdictions have placed different emphases on these two aspects of justice. The result has been two competing paradigms of fairness: ‘individualism’ and ‘comparativism’. Individualism is solipsistic; it measures fairness in relation to the ‘unique’ circumstances of each case and therefore protects extensive discretion to tailor punishment to individual facts. Comparativism is outward-facing; fairness is measured against similar cases, using extrinsic aids like sentencing statistics and the analogical reasoning intrinsic to the common law. Despite these differences, the paradigms of individualism and comparativism are not dichotomous but points at the ends of a spectrum, along which a balance can be struck. In Australia, while both are emphasized at the level of theory, sentencing practice heavily favors individualism. The result is an ambivalent jurisprudence that inadequately supports sentencers in their attempt to reconcile the conflicting demands of each premise. In recent decades, common law jurisdictions have developed measures designed to reduce unjustified disparity in sentencing. However, while the pursuit of this aim is noncontroversial, its manifestations are not. There is disagreement about the nature of disparity and little empirical evidence regarding its extent and the effectiveness of the measures introduced to reduce it. In Australia, the contention that unjustified disparity exists is not broadly accepted by the judiciary and, where accepted, is considered a lesser evil than its remedies. However, since the 1970s empirical studies in comparable jurisdictions have demonstrated that unregulated discretion is directly correlated with unjustified disparity because judges interpret sentencing principles and same case facts differently. This raises the question whether sentencing in Australia is systematically fair in the sense required by legality principles. This thesis examines the nature and efficacy of the reforms introduced in Australia to reduce unjustified disparity within a highly individualised sentencing framework. These are: appellate review, the provision of sentencing information to judges, judicial education, mandatory sentencing, sentencing legislation, guideline judgments and sentencing councils. This thesis finds that by rigourously protecting unguided discretion, the individualist authorities have neutralised, or seriously diminished, the regulatory effects of each of these disparity reduction measures. For the most part, these failures in regulation are not due to structural problems with the measures themselves. Rather they are the result of trying to implement comparativist tools in an uncompromising context of high individualism. This lesson is instructive for jurisdictions seeking to avoid problems which arise at this end of the spectrum. The Australian challenge is not to find new ideas, but to determine which of the current ones could be effective in doing what they purport to do and to make evidence-based reforms to sentencing methodology required to reach that goal.

Awards: Winner of the Mollie Holman Doctoral Medal for Excellence, Faculty of Law, 2016.


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Arie Freiberg

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Faculty of Law