A Rational Approach To Sentencing White- Collar Offenders in Australia

There are no overarching (and few settled) principles governing the sentencing of white-collar offenders. This is especially the situation in relation to the relevance of public opprobrium to the sentencing calculus and the manner in which employment deprivations stemming from the penalty impact on the sentence. To the extent that there is general convergence in the approach to sentencing white-collar offenders, the approach is often not sound. This is the case in relation to the minor sentencing discount accorded for previous good character, and the prevailing orthodoxy which assumes that offences targeted at major institutions, such as banks, meaningfully impair community confidence in such institutions. Fundamental reform of the manner in which white-collar offenders are sentenced is necessary in order to make this area of law more coherent and doctrinally sound. These reforms include providing a significant and pre-determined discount for restitution, reducing the weight given to general deterrence in the sentencing calculus, and providing a greater discount for previous good character and employment deprivations suffered as a direct result of the sentence. Further, crimes against individuals should be regarded as being more serious than those committed against large corporations or the public revenue. The article focuses on the existing law in Australia, however, the reform proposals and doctrinal analysis could be applied to all jurisdictions.