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12 Current Issues Crim. Just. 143 (2000-2001)
Proportionality in Sentencing: Its Justification, Meaning and Role

handle is hein.journals/cicj12 and id is 147 raw text is: Proportionality in Sentencing:
its Justification, Meaning and Rolet
MIRKO BAGARIC*
Introduction
The principle of proportionality in sentencing is a splendidly simply and appealing notion.
In its crudest, and most persuasive form, it is the view that the punishment should equal the
crime. The proportionality principle strikes a strong intuitive cord, and probably for this
reason is embodied not only in sentencing law, but transcends many other areas of the law.
As Fox (1994) 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.
The proportionality principle is one of the main goals of sentencing. Despite this,
sentences vary markedly not only across, but also within jurisdictions (Frankel 1973;
Bagaric 1999a). Adoption of the principle has not facilitated uniform sanctions for like
offences because it is poorly defined 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. In order to get to the bottom of proportionality it is
necessary to determine the factors that are relevant to the seriousness of the offence and how
offence severity should be gauged. This can only be done in light of an understanding of the
justification for the principle. However, this, too, is the subject of intense debate. The main
aim of this paper is to determine the rationale, if any, for the principle of proportionality.
Once the justification for proportionality is ascertained, the narrower and more pragmatic
issues concerning it, such as when, if ever, proportionality may be violated and the factors
that are relevant to the seriousness of an offence fall into place.
The Role of Proportionality in Sentencing
A clear statement of the principle of proportionality is found in the High Court case of
Hoare v The Queen (354):
A basic principle of sentencing law is that a sentence of imprisonment imposed by a court
should never exceed that which can be justified as appropriate or proportionate to the
gravity of the crime considered in light of its objective circumstances.
t  The author is most grateful for the reviewer's comments on this article.
* BA LLB (Hons), LLM, Lecturer, Faculty of Law, Deakin University.

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