Fellows, Jamie Douglas, and Chong, Mark David (2016) Extra-curial punishment in criminal law sentencing: a principles-based approach. SCU Law Review, 18. pp. 55-74.

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Abstract

Society will sometimes administer its own 'punishment' on the criminal offender irrespective of any court imposed sanction. This 'punishment' is often associated with verbal and physical abuse, and is referred to as 'extra-curial' punishment because it occurs without approbation of the courts. Some Australian courts accept that extra-curial punishment can play a role in mitigating sentences, primarily to avoid a double punishment effect. Whether or not extra-curial punishment is considered and applied, however, falls to the individual judge presiding over the matter. Several dilemmas exist for the judiciary in allowing extra-curial punishment to influence sentencing. These problems include: the problems of legitimising non judicial punishment;t, inconsistent application of extra-curial punishment within the judiciary;, and the ethics of victimising the perpetrator. These problems notwithstanding, the purpose of this paper is to suggest that the subjective application of extra-curial punishment on the part of the sentencing judge is consistent with the various state and territory sentencing provisions and, furthermore, is supported in its application by Dworkin's principles of 'mercy' and maintaining the 'integrity of punishment'. As such, the inclusion of aspects of extra-curial punishment as part of the overall sentence is not something to be admonished, but rather it should be seen as a legitimate factor in sentencing when deemed appropriate in the circumstances of each case as determined by the skill and expertise of the sentencing judge.

Item ID:	45027
Item Type:	Article (Research - C1)
ISSN:	1329-3737
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Date Deposited:	08 Nov 2016 21:57
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