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

journal contribution
posted on 2015-03-01, 00:00 authored by Theo AlexanderTheo Alexander, Mirko Bagaric
The principle of legality has evolved into a clear and entrenched
jurisprudential 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 legal
system operates in its most coercive manner against individuals. In this
article, we argue that logically the principle of legality has an important
role in the sentencing system given the incursions by criminal sanctions
into a number of basic rights, including the right to liberty, the freedom of
association and the deprivation of property. By way of illustration, we set
out how the principle of legality should apply to the interpretation of key
statutory provisions. To this end, we argue that the objectives of general
deterrence 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.



Monash University law review





Article number



515 - 551


Social Science Research Network


Melbourne, Vic





Publication classification

C Journal article; C1 Refereed article in a scholarly journal

Copyright notice

2016, Social Science Electronic Publishing

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