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Law in Context

Abstract from Volume 26 No 1 (2008) Criminal Appeals 1907-2007

Courts of Appeal and Sentencing: Principles, Policies and Politics

Professor Arie Freiberg is the Dean of Law at Monash University and the Chairman of the Victorian Sentencing Advisory Council in Australia.
Professor Peter Sallmann is a former Commissioner of the Victorian Law Reform Commission, Executive Director of the Australian Institute of Judicial Administration, Professorial Fellow, Faculty of Law, University of Melbourne, Crown Counsel for Victoria, and currently Honorary Professor, Law Faculty, Monash University, Australia.

In the context of courts of appeal and sentencing, the interrelationships between the judiciary, the executive and the legislature raise a number of difficulties. In particular, in response to concerns about inconsisten­cies and disparities in sentencing, new strategies such as guideline judgments, sentencing guidelines, sentencing commis­sions and various forms of sentencing advisory bodies have emerged in most common law jurisdictions. The implications of these developments for courts of appeal is examined in this article with a particular focus on the prob­lematic distinction between sentencing principles, senten­cing policies and ‘judicial legislation’. It is argued that the general trend of continuing confinement and structuring of judicial discretion in sentencing in Australia and elsewhere is likely to recast the traditional relationship between the judicial, legislative, and executive branches of government.

(2008) 26 No 1 Law in Context 43

   
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