Sentencing the 'victimised criminal': delineating the uncertain scope of mitigatory extra-curial punishment

Chong, Mark David;Fellows, Jamie;Richards, Frank

Abstract

This article analyses the way Australian courts have been sentencing a relatively unique category of convicted offenders — described oxymoronically here as 'victimised criminals' — those who have already been punished or will be punished in one form or another, whether directly or indirectly, by an entity or entities other than the sentencing court proper. This situation can be called extra-curial punishment given the 'extra-judicial' nature of the sanction. Studies in this area are sorely needed because of the continuing complexity and ambiguity surrounding both the definitional parameters of extra-curial punishment, and the way courts have applied these rules in a flexible, and sometimes improvised, fashion. It is this fluidity that has been criticised as being the cause for the lack of certainty and precision in the relevant law. Consequently, the ensuing analysis will attempt to bring some clarity here by employing an analytical scheme that is premised on a morally intuitive common sense valve, the use of which results in judges arriving at fairer and more just decisions.

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Sydney Law Review

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0082-0512

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University of Sydney Law School

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