Addressing the curious black spot that is the separation between the principle of legality and sentencing

Alexander, Theodosios and Bagaric, Mirko 2016, Addressing the curious black spot that is the separation between the principle of legality and sentencing, Monash University law review, vol. 41, no. 3, pp. 515-551.

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Title Addressing the curious black spot that is the separation between the principle of legality and sentencing
Author(s) Alexander, TheodosiosORCID iD for Alexander, Theodosios
Bagaric, Mirko
Journal name Monash University law review
Volume number 41
Issue number 3
Start page 515
End page 551
Total pages 37
Publisher Social Science Research Network
Place of publication Melbourne, Vic.
Publication date 2016-03
ISSN 0311-3140
Summary The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. 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 legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders 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 offenders 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.
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, Social Science Electronic Publishing
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