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The fallacy of punishing offenders for the deeds of others: an argument for abolishing offence prevalence as a sentencing aggravating consideration

Bagaric, Mirko and Alexander, Theo 2016, The fallacy of punishing offenders for the deeds of others: an argument for abolishing offence prevalence as a sentencing aggravating consideration, Sydney law review, vol. 38, no. 1, pp. 23-47.

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Title The fallacy of punishing offenders for the deeds of others: an argument for abolishing offence prevalence as a sentencing aggravating consideration
Author(s) Bagaric, Mirko
Alexander, Theo
Journal name Sydney law review
Volume number 38
Issue number 1
Start page 23
End page 47
Total pages 25
Publisher Faculty of Law, University of Sydney
Place of publication Sydney, N.S.W.
Publication date 2016-03
ISSN 0082-0512
Summary Sentencing outcomes are often marked by a considerable degree ofunpredictability. A key reason for this is the large number of aggravating andmitigating considerations, some of which have unstable questionablefoundation. This article argues that one well-established aggravating factor —offence prevalence — should be abolished. Pragmatically, the courts have notestablished workable criteria or a process for establishing whether an offence isprevalent. From a normative perspective, increasing the penalty for prevalentoffences is unsound because defendants should be punished for their acts, notthose of other offenders. Further, on close analysis, all of the rationales (in theform of general deterrence, denunciation and specific deterrence) invoked tojustify offence prevalence do not do so. Abolishing one sentencing variable willnot make sentencing a significantly more coherent or predictable discipline, butthe methodology applied in this article can be used to assess the viability ofother sentencing considerations.
Language eng
Field of Research 180110 Criminal Law and Procedure
1801 Law
Socio Economic Objective 940403 Criminal Justice
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2016, Faculty of Law, University of Sydney
Persistent URL http://hdl.handle.net/10536/DRO/DU:30082058

Document type: Journal Article
Collection: Law
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