ABSTRACT
Sentencing is arguably the most important area of the law. Whereas many other areas of law are concerned with ‘simply’ regulating the transfer and adjustment of monetary sums, the sanctions available against criminal offenders target the most cherished and coveted individual interests, such as the right to liberty. Sentencing is the area of law where the State acts in its most coercive and intrusive manner. Not surprisingly, it is also ‘the most controversial and politically sensitive aspect of the criminal law’.1 Paradoxically, sentencing is also the least principled and coherent body of law. Judges have displayed a remarkable reluctance to any fetters being imposed on their sentencing discretion. This has been tacitly supported by legislatures in many jurisdictions, particularly Australia and the UK, which, on the whole, have refused pointedly to endorse specific sentencing goals: ‘Our laws characteristically leave to the sentencing judge a range of choice that should be unthinkable in a ‘government of laws, not of men’.2 The failure to endorse a rationale for sentencing has led to what Andrew Ashworth labels a ‘cafeteria system’3 of sentencing, which permits sentencers to pick and choose a rationale which seems appropriate at the time with little constraint.
