Deakin University
Browse

File(s) under permanent embargo

The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

journal contribution
posted on 2013-10-01, 00:00 authored by Mirko Bagaric, Athula Pathinayake
Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).

History

Journal

The journal of criminal law

Volume

77

Issue

5

Pagination

399 - 416

Publisher

Vathek Publishing

Location

Dalby, Isle of Man

ISSN

0022-0183

eISSN

1740-5580

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2013, Vathek Publishing

Usage metrics

    Research Publications

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC