Giving Content to the Principle of Proportionality: Happiness and Pain as the Universal Currency for Matching Offence Seriousness and Penalty Severity

AuthorMirko Bagaric,James McConvill
Published date01 February 2005
Date01 February 2005
Subject MatterArticle
Giving Content to the Principle of
Proportionality: Happiness and
Pain as the Universal Currency
for Matching Offence Seriousness
and Penalty Severity
Mirko Bagaric*and James McConvill**
Abstract The principle of proportionality prescribes that the punishment
should equal the crime. It is one of the most important principles of
sentencing. Yet, despite its widespread acceptance it offers no meaningful
guide to sentencing. Hence penalty levels uctuate greatly between juris-
dictions and within jurisdictions. This is because there is no universally
agreed criterion for measuring offence seriousness or penalty severity.
This article suggests that the appropriate criteria for matching offence
seriousness and penalty severity is the level of unhappiness or pain
stemming from each of these impositions. Thus, for example, the level of
pain meted out to a rape offender should equal the level of pain caused to
a rape victim. Emerging scientic studies on human well-being and happi-
ness show that human beings are similarly built in terms of the experi-
ences that are either conducive or inimical to well-being. This
commonality provides a strong foundation to be condent to make rea-
sonably accurate predictions concerning the extent to which adverse
events, such as being the victim of a criminal offence or subjected to a form
of criminal sanction will stie human ourishing. This will then allow us
to match accurately offence seriousness and penalty level.
The principle of proportionality in sentencing is a splendidly simple and
appealing notion. In its crudest, and most persuasive, form it is the view
that the punishment should equal the crime. The proportionality princi-
ple strikes a strong intuitive chord, and probably for this reason is
embodied not only in sentencing law, but transcends many other areas
of the law. As Richard Fox notes, the notion that the response must be
commensurate to the harm caused, or sought to be prevented, is at the
core of the criminal defences of self-defence and provocation. It is also at
the foundation of civil law damages for injury or death, which aim to
compensate for the actual loss suffered, and equitable remedies, which
are proportional to the detriment sought to be avoided.1
The proportionality principle has proved so alluring that in many
parts of the Western World it is one of the main goals of sentencing.
Despite this, sentences vary markedly not only across, but also within
jurisdictions.2Adoption of the principle has not facilitated uniform
* Professor and Head of School, School of Law, Deakin University.
** Lecturer, School of Law, Deakin University.
1 R. Fox, The Meaning of Proportionality in Sentencing (1994) 19 Melbourne
University Law Review 489.
2 M. Frankel, Criminal Sentences: Law Without Order(Hill & Wang: New York, 1972);
M. Bagaric, Punishment and Sentencing: A Rational Approach (Cavendish Publishing:
London, 2001) ch. 8.
sanctions for like offences. The main reason for this is that the principle
is poorly dened and understood. There is consensus only in abstract.
The principle is so nebulous that it would be misleading to assert that it
provides a meaningful guide to sentencers. Within many jurisdictions
sentencing is marked by a high degree of inconsistency3and an offence
which in one jurisdiction carries a minor penalty can carry the severest
of consequences for an offender in another jurisdiction.
One of the main reasons for the disparate penalty levels is that there
is no common unit of measurement concerning how the two limbs of
the proportionality principle should be measured. While the proportion-
ality principle is persuasive in theory it does not lead to consistency in
sentencing outcomes because there is no universally agreed standard by
which offence seriousness or penalty severity can be measured. How
does one actually measure the harm that ensues from a rape, a theft or
an assault? This problem is compounded by the difculty in ascertaining
the level of deprivation or harm that is caused to offenders by imposing
sanctions such as nes or imprisonment. Not only is there no common
3 This is so even in relation to jurisdictions where guideline judgments exist, such as
the UK. A relatively recent study has found an enormous disparity in sentencing
outcomes among courts which are meant to be applying the same sentencing laws
and practices. A report by the Prison Reform Trust (Sentencing: A Geographical
Lottery (1997) available at
(retrieved 14 November 2004)). The report used gures from the Criminal Statistics
England and Wales, Supplementary Tables 1995, vol. 4, Proceedings in Magistrates
CourtsData for Individual Petty Sessional Divisions (HMSO: November, 1996) and
found a fundamental lack of consistency in magistrates courts decisions
throughout England and Wales. The report showed that the chances of an
offender going to prison depend far more upon the court where he or she is
sentenced than upon the crime of which he or she is charged. The report shows
that markedly different sentencing cultures have developed in towns which are in
close proximity to each other. For example, defendants in Sunderland are twice as
likely to be imprisoned for driving while disqualied and theft, and are over ve
times more likely to be imprisoned for car-related thefts than defendants in nearby
Newcastle. In Brighton the imprisonment rate (13 per cent) was more than double
that in Southampton (6 per cent). There are also large discrepancies in relation to
the length of sentence passed. The average in Southampton (4.4 months) was
nearly 40 per cent higher than in Brighton (3.2 months). Similar discrepancies
were found in the four Yorkshire towns of Leeds, Bradford, Hudderseld and
Wakeeld. The incarceration rate for defendants in Bradford and Hudderseld was
nearly twice that in Leeds and Wakeeld. The average prison sentence in Bradford
was 2.2 months, compared with 3.4 months in Leeds. Magistrates in
Wolverhampton were over 70 per cent more likely to imprison offenders
convicted of burglary offences, nearly 40 per cent more likely to imprison
disqualied drivers and twice as likely to impose prison sentences for actual bodily
harm, than magistrates in Coventry. In North Wales, the incarceration rate in
Merthyr Tydl was more than three times that in Llanelli. Overall, offenders in
London were 25 per cent more likely to receive a prison sentence than
nationwide. However, this overall gure is very crude and glosses over signicant
disparities across the 43 courts in London which are as pronounced as in other
regions of the country. For example, defendants in Croydon were half as likely to
be imprisoned as defendants in Sutton and defendants in Brent were twice as
likely to be imprisoned as defendants in Ealing and Haringey. For a discussion
regarding the inconsistency and unfairness of the sentencing system in Australia,
see M. Bagaric, Sentencing: The Road to Nowhere (1999) 21 Sydney Law Review
597626; M. Bagaric, What Sort of Fixed Penalties Should We Have? (2002) 23
Adelaide University Law Review 113.
Giving Content to the Principle of Proportionality

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