The Paradox of Parity in Sentencing in Australia: The Pursuit of Equal Justice That Highlights the Futility of Consistency in Sentencing
| DOI | 10.1350/jcla.2013.77.5.866 |
| Date | 01 October 2013 |
| Published date | 01 October 2013 |
| Subject Matter | Article |
The Paradox of Parity in
Sentencing in Australia: The
Pursuit of Equal Justice that
Highlights the Futility of
Consistency in Sentencing
Mirko Bagaric* and Athula Pathinayake†
Abstract 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: incon-
sistency in sentencing. This article contends that parity will remain an
aspiration, as opposed to a concrete principle, until the instinctive synthe-
sis 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 con-
siderable discretionary component (including the UK and the USA—apart
from the limited circumstances where mandatory sentences apply).
Keywords Sentencing; Parity; Instinctive synthesis; Equal justice;
Consistency
Sentencing is the sharp end of the criminal law. It is in this domain that
society imposes its most punitive measures against individuals. Despite
the cardinal interests that are affected, it remains one of the most
unpredictable areas of the law1—and certainly in no case is there a
single, objectively correct sentence.2
Yet, the courts have frequently stated that consistency in sentencing
is an important ideal. The area of sentencing law where consistency
* Professor, Deakin University Law School, Australia; e-mail:
mirko.bagaric@deakin.edu.au.
† Lecturer, Deakin University; e-mail: athula.pathinayake@deakin.edu.au.
1 See J. Smith, ‘Clothing the Emperor: Towards a Jurisprudence of Sentencing’
(1997) 30 Australian and New Zealand Journal of Criminology 168 at 170; M. Bagaric,
‘Sentencing: The Road to Nowhere’ (1999) 21 Sydney Law Review 597. Similar
observations have been made in relation to sentencing systems in other
jurisdictions. Leading UK scholar, Andrew Ashworth, has labelled UK sentencing
law a ‘cafeteria system’ of sentencing (A. Ashworth, Sentencing and Criminal Justice,
2nd edn (Butterworths: London, 1995) 331). In a similar vein, over 40 years ago
US federal judge Marvin Frankel described sentencing law as a wasteland in the
law: M. Frankel, Criminal Sentences: Law Without Order (Hill and Wang: New York,
1972).
2Freeman vThe Queen [2011] VSCA 349 at [6]; Hennessy vR[2012] NSWCCA 241
at [35].
399The Journal of Criminal Law (2013) 77 JCL 399–416
doi:10.1350/jcla.2013.77.5.866
gains its strongest expression is in the principle of parity, which is the
view that offenders who are parties to the same offence should, all things
being equal, receive the same penalty. In abstract, the principle can be
stated with elegant simplicity and is doctrinally sound.
At the core of the principle of parity is the concept of equal justice and
the patent unfairness in dealing differently with offenders who are
similarly placed. It is not surprising that the principle in theory has
been interpreted broadly, and without reservation. The application
of the principle, however, is otherwise. It applies only in limited
circumstances.
The complexity of the sentencing calculus, stemming from the large
number of aggravating and mitigating factors and the reluctance of the
courts and legislature to ascribe weight to them, reduces the parity
principle from a concrete principle to an aspirational ideal. This is
manifest from the fact that current orthodoxy maintains that parity can
only ground an appeal against sentence when there is a gross disparity
between the sentences of offenders connected with the same offence.
In the next part of the article, we examine the application and scope
of the principle. In part 2, we argue that, in reality, the circumstances in
which the principle applies are narrow. This leads to the paradox that
the principle is more an illustration of the problem it is meant to cure—
inconsistency—than a mechanism for ameliorating the problem. In the
concluding remarks, we suggest that the parity principle will continue
to remain a principle of academic abstraction unless, and until, the
sentencing decision-making process becomes more precise and
transparent.
1. Scope and explanation of the parity principle
(a) Statement of the parity principle and its rationale
Parity in sentencing is the principle that offenders who are party to the
same offence should, all things being equal, receive the sanction. For-
mally, the principle can be clearly and simply stated. One of its clearest
expressions is by Gibbs CJ (Wilson J agreeing) in Lowe vThe Queen3
where his Honour states:
The true position in my opinion may be briefly stated as follows. It is
obviously desirable that persons who have been parties to the commission
of the same offence should, if other things are equal, receive the same
sentence, but other things are not always equal, and such matters as the
age, background, previous criminal history and general character of
the offender, and the part which he or she played in the commission of the
offence, have to be taken into account.4
3 (1984) 154 CLR 606 at 609. See also Lowe v The Queen (1984) 154 CLR 606,
[1984] HCA 46; Mason J at 611–14; Dawson J at 623; Postiglione v The Queen
(1997) 189 CLR 295, [1997] HCA 26; Nguyen vWestern Australia [2009] WASCA
81.
4 (1984) 154 CLR 606 at 609. For a general overview of the principle, see
G. Mackenzie and N. Stobbs, Principles of Sentencing (The Federation Press: Sydney,
2010) 53–8.
The Journal of Criminal Law
400
To continue reading
Request your trial