Discretion, disparity or discrepancy? A review of sentencing consistency

The widespread belief that sentencing disparity is endemic within the Australian criminal justice system has resulted in a number of commentators examining factors that may explain this phenomenon. Possible causal factors which have been examined include various offender and offence characteristics as well as a range of sentencer-related factors. However, such research has been rife with methodological limitations not least of which is the failure to quantify or appropriately define disparity. This calls into question the true level of disparity within the system. Further, the very complexity of the sentencing process is likely to limit the influence of any single factor as a sentencing determinant. This article provides an overview of existing literature on sentencing disparity and the exercise of judicial discretion.