When sentencing a criminally accused in Melbourne, there are a number of principles that counsel for the defence or prosecution can seek, and that the Judge or Magistrate must take into account. Where applicable, these will form part of the ‘instinctive synthesis’ and final sentencing outcome.
Proportionality
Simply, this principle says that a Melbourne or Victorian Court should never impose a sentence on an accused which exceeds what is considered appropriate or proportionate for the offence committed. It is therefore commonly considered a limiting principle, in that it places an upper limit on the sentence to be imposed. However it can be relied upon to argue that a sentence was overly lenient or inadequate in the circumstances. It is in many ways a final measure against which the overall sentence is to be checked.
A Melbourne or Victorian Court may impose a sentence that is less severe than what is proportionate to the objective circumstances of the case where there are mitigatory or policy reasons that justify doing so. However, it cannot impose a more severe sentence than is proportionate by relying upon aggravating circumstances, unless the legislation makes an exception for doing so. An example of this is in the case of serious offenders, where the Court is permitted to impose a sentence longer than what is considered proportionate in order to protect the community from the offender.
However, it is important to remember that where legislation provides a mandatory minimum sentence, then a judge or magistrate has no discretion to impose a lesser sentence, even if they consider the minimum to be excessive or severe.
Criminal lawyers must consider that appeals against sentence often rely upon the proportionality principle, arguing that the judge’s sentence in the lower court had erred as the result was manifestly excessive (ie the penalty the accused received was overly harsh).
Parsimony
A definition of ‘Parsimony’ is an “extreme unwillingness to spend money or use resources”. In a legal sense, the principle requires the judge or magistrate sentencing an accused to select the least severe option which satisfies the sentencing requirements (eg general deterrence, public safety).
It is a principle considered during the final stages of the sentencing process, after all other material matters have been weighed, and the appropriate sentencing options identified. Melbourne criminal lawyers will strategically assess whether this principle is of significant relevance in any cases they take on.
