Taking rehabilitation seriously in sentencing: transforming it from an expedient to a sentencing principle

Rehabilitation is one of the key objectives of sentencing. It is also a commonly invoked mitigating factor. Good prospects of rehabilitation can significantly mitigate the penalty which is imposed on an offender. However, the criteria applied by the courts to determine an offender’s prospects of rehabilitation are obscure and the jurisprudence relating to the circumstances in which rehabilitation is relevant is unsettled. Moreover, there is no settled position regarding the weight that rehabilitation should have in the sentencing calculus. This article attempts to inject clarity into this area by proposing several key reforms. The first is that decisions by courts relating to the prospects of rehabilitation should be made on the basis of more rigorous, empirically grounded and transparent criteria. Second, the role of rehabilitation in sentencing should be expanded. In particular, contrary to the current orthodoxy, it should be capable of having a meaningful role even in relation to very serious offences. Third, the weight that courts give to rehabilitation in relation to serious offences should be made clearer. The focus of this article is on sentencing law in Australia, however, the reform proposals are (with some minor caveats) equally applicable to New Zealand, given the similar sentencing regimes in the two countries.