Proportionality

History

Article 8 of the Declaration of the Rights of man - only create penalties that are strictly and evidently ecessary

Clause 20 of the Magna Carta 1215 " a Free Man shall be amerced for a mall offece only according to the degree of the offence"

Bill of Rights 1689 "excessive bail ought not to be required nor excessive fines imposed nor cruel or unusual punishments inflicted.

Australian Sentencing Law

Channon v The Queen "criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beynd what is necessary to achieve that purpose.'

Young [1990] "sufficient to say that for as long as any member of the court can remember it has been the law in Victoria that an offender must not be sentence d to a more severe punishment thatn is appropriate or proportionate to the offence which he hhas committed.

Principle of Proportionality

Hoare v The Queen - a basic principle of sentencing law is that a sentence of imprisonment imposeds by a court should ne ver exceep which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.

Veen (No1 & No2) - declared the most important objective in sentencing

Harm caused by the offence

Punishment inflicted on the offender

Test for Proportionality

Factors relevant to the objective seriousness of the offence

Tsakonas v the Queen - prior convictions are not directly relevant to proportionality

R v McNaughton proportionality required the upper limit to be set by the objective circumstances of the offence, then previous criminal history

Probably relevant:

Consequesnces of the offence (including level of harm)

Offenders Culoability (sonsiders mental state)

Level of intelligence

Level of sophistication

Protection of society

Probably not relevent

Good character

Repentance

Resitution

Possible rehabilitation

Intransigience

Statutory basis for Proportionality

Sentencing Act 1991 (VIC) Section 5 1(a) to punish the offender to an extent and in a manner which is just in all of the cirtcumstances)

Crimes Act 1914 (Cth) 16A (1) In determining the sentence to be passed or the order to be made in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity approproate in all the circumstances of the offence.

Freeman v Harris - coourt can not impose a sentence longer than that which is deserved in order to cure or rehabilitate an offender

Crimes Act 1914 (Cth) 16A (2) in addition to any other matters the court must take into account such of the following matter that are relevant and known to the court (k) **the need to ensure that the person is adequately punishcced for the offence.

Statutory qualifications
regarding proportionality

Sentencing Act 1991 (Part 2A) Section 6D a. must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed: and b. may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances

Connell [1996] 1 VR436 at 433 - where a judge is satisfied by acceptable evidenct that a serious sexual offender is likely to commit further crimes of violence (incluing sexual offences) that are a danger to the community, the judge may impose a sentence longer than which is justified by the princiiple of porpotionality.

Indefinite Sentences

Indefintite sentences

No set end date

serious offence in the Supreme Court of the COunty Court (defined in s3 incl. Murder, Manslaughter, Child Homicide

The court rather than the adult parole board decides on release dependant on danger to the community.

One Punch Mandantory Sentencing

Sentencing Act 1991 S9C Custodial sentence must be imposed for manslaughter by single punch or strike (2) in sentencing the offender, the court must impose a term of imprisonment not less than ten years unless the court finds under section 10A that a special reason exists.

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R v Parker - this is not television, this is not a video game, this is real life. One punch and hundreds of peoples lives are destroyed.

Continutiong detention Part 3 of the Serious Sex Offender (supervision and detention Act) act 2009 continuing detention for up to three years, order can be renewed if risk of reoffending remains, must be renewed once every year.