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Rehabilitating totality in sentencing: From obscurity to principle

University of New South Wales Law Journal, The
Volume 36 Issue 1 (2013)

Abstract: The totality principle applies in cases of multiple offending to reduce the total effective sentence that is imposed on offenders. This is normally achieved by either making some or all of the individual sentences concurrent, or by reducing the length of the individual sentences. Although totality is a well-established sentencing doctrine, its scope and its impact on the overall sentence are unclear. Current orthodoxy maintains that principles of proportionality and mercy underpin totality. This article argues that neither of these is capable of providing a solid foundation for totality, and that this area of law will remain unsatisfactorily indeterminate until a clear and defensible rationale is adopted. It is suggested that the main justification for the principle is that offenders who are sentenced for multiple offences have not had the opportunity to be rehabilitated through the imposition of earlier sanctions. While this provides a logical basis for distinguishing these offenders from those who have been sentenced for each offence separately, the size of the sentencing discount merited is not considerable given the relative importance of rehabilitation in the overall sentencing calculus.

To cite this article: Bagaric, Mirko and Alexander, Theo. Rehabilitating totality in sentencing: From obscurity to principle [online]. University of New South Wales Law Journal, The, Vol. 36, No. 1, 2013: 139-167. Availability: <http://search.informit.com.au/documentSummary;dn=398859938767905;res=IELHSS> ISSN: 0313-0096. [cited 26 May 16].

Personal Author: Bagaric, Mirko; Alexander, Theo; Source: University of New South Wales Law Journal, The, Vol. 36, No. 1, 2013: 139-167 Document Type: Journal Article ISSN: 0313-0096 Subject: Prison sentences; Violent offenders--Rehabilitation; Criminal procedure; Peer Reviewed: Yes Affiliation: (1) Professor and Dean, Deakin Law School, Deakin University
(2) Lecturer, Deakin Law School, Deakin University and Barrister, Victorian Bar

Database: Humanities & Social Sciences Collection