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Redefining the Circumstances in which Family Hardship Should Mitigate Sentence Severity


Mirko Bagaric

The hardship stemming from prison goes well beyond the pain experienced by offenders. The family and dependants of prisoners often experience significant inconvenience and hardship. Family members of prisoners have not engaged in wrongdoing and hence arguably their suffering should be a mitigating consideration in sentencing. However, this approach potentially unfairly advantages offenders with close family connections and undermines the capacity of courts to satisfy a number of important sentencing objectives, including the imposition of proportionate penalties. The courts and legislatures have not been able to find a coherent manner in which to reconcile this tension. There is conflicting case law regarding the circumstances in which family hardship can mitigate the severity of criminal penalties. This article examines these competing positions and proposes that family hardship should mitigate penalty severity only when incarcerating the offender would cause severe financial hardship to his or her dependants.

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(2019) 42(1) UNSWLJ 154: