Proportionality in Sentencing and the Restorative Justice Paradigm: 'Just Deserts' for Victims and Defendants Alike? [Book Review]
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Criminal Law and Philosophy 4 (2):197-213 (2010)
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their âjust desertâ. In Australian sentencing law, proportionality goes some way toward achieving this âbalancedâ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.
|Keywords||Proportionality Restorative justice Sentencing Victim Defendant|
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References found in this work BETA
Andrew von Hirsch & Nils Jareborg (1991). Gauging Criminal Harm: A Living-Standard Analysis. Oxford Journal of Legal Studies 11 (1):1-38.
Citations of this work BETA
Göran Hermerén (2012). The Principle of Proportionality Revisited: Interpretations and Applications. [REVIEW] Medicine, Health Care and Philosophy 15 (4):373-382.
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