CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 31, 2023

Anderson et al. on Sentences for Crimes Committed During Conditional Liberty

John AndersonBrendon Murphy, and Mirko Bagaric (University of Newcastle (Australia) - Newcastle Law School, University of Newcastle (Australia) - Newcastle Law School and Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School) have posted Conditioning Sentencing to Prevent Double Counting of Offenders who Commit Offences while on Conditional Liberty (Melbourne University Law Review, Vol. 46, No. 1, 2022) on SSRN. Here is the abstract:
Defendants in criminal matters can be placed on numerous forms of conditional liberty, including bail, parole and community-based orders. Committing offences while on conditional liberty is regarded as an aggravating sentencing consideration. This results in heavier penalties often being imposed on this cohort of offenders. While this is a well-established sentencing principle, its doctrinal rationale remains unclear and, in some instances, seemingly flawed. In certain circumstances, committing an offence while on conditional liberty is a separate offence. In other situations, the breach of conditional liberty results in incidental punishment, such as revocation of bail or parole. Thus, increasing sanction severity for offenders who commit offences while on conditional liberty can result in double punishment. We propose a principled doctrinal approach for dealing with offences which are committed while on conditional liberty which would inject doctrinal clarity and fairness into the sentencing process.

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