The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

Bagaric,Mirko and Pathinayake, Athula 2013, The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing, The journal of criminal law, vol. 77, no. 5, pp. 399-416.

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Title The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing
Author(s) Bagaric,Mirko
Pathinayake, AthulaORCID iD for Pathinayake, Athula orcid.org/0000-0001-6520-0343
Journal name The journal of criminal law
Volume number 77
Issue number 5
Start page 399
End page 416
Total pages 18
Publisher Vathek Publishing
Place of publication Dalby, Isle of Man
Publication date 2013-10
ISSN 0022-0183
1740-5580
Keyword(s) equal justice
instinctive synthesis
parity
sentencing
Summary Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).
Language eng
Field of Research 180110 Criminal Law and Procedure
Socio Economic Objective 940405 Law Reform
HERDC Research category C1 Refereed article in a scholarly journal
HERDC collection year 2013
Copyright notice ©2013, Vathek Publishing
Persistent URL http://hdl.handle.net/10536/DRO/DU:30056648

Document type: Journal Article
Collection: Law
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