Proportionality in Sentencing and the Restorative Justice Paradigm: 'Just Deserts' for Victims and Defendants Alike? [Book Review]

Criminal Law and Philosophy 4 (2):197-213 (2010)

Abstract
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ 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
Categories (categorize this paper)
DOI 10.1007/s11572-010-9088-3
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 46,483
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

Gauging Criminal Harm: A Living-Standard Analysis.Andrew von Hirsch & Nils Jareborg - 1991 - Oxford Journal of Legal Studies 11 (1):1-38.

Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Analytics

Added to PP index
2010-09-13

Total views
43 ( #208,642 of 2,286,467 )

Recent downloads (6 months)
12 ( #71,407 of 2,286,467 )

How can I increase my downloads?

Downloads

My notes

Sign in to use this feature