Punishing parents: a study of family hardship in Australian sentencing

Abstract

Historically, sentencing courts have found it appropriate to take into account the impact of an offender's sentence upon their dependants. This mitigating factor in sentencing has been described as 'family hardship'. However, in Australia family hardship is a controversial sentencing factor with some sentencing judges denying that it is a mitigating factor at all. This dissertation is a study of the family hardship as a mitigating sentencing factor and a study of the sentencing principle that has developed in respect to this sentencing factor up to the landmark decision in Markovic v The Queen (2010) 200 A Crim R 510. The overall purpose of this dissertation has been to trace the way that courts have approached family hardship and to contribute to current knowledge. The research for this dissertation involved a study of the case law on family hardship within Australia. This consisted of a series of jurisdictionally based studies of sentencing remarks and appellate judgments to reveal how judicial officers have approached family hardship at sentencing. Drawing upon an extensive and systematic analysis of the case law, this dissertation sheds light upon the practical operation of common law, including where there has been legislative enactment of sentencing factors, and presents a critical analysis of the operation and development of Australian sentencing principles. The dissertation first outlines the Australian sentencing landscape before looking at the tensions that have arisen in respect to this contentious sentencing factor. In addition to an extensive and unique review of Australian state and territory jurisprudence on family hardship the dissertation also draws upon secondary research literature to contextualise these tensions. This dissertation also presents the results of a study into federal sentencing practices on family hardship. These results are examined alongside state and territory sentencing practices and the original research conducted for this dissertation. The findings presented define and develop a new agenda for research on mitigating factors, sentencing principles and Australian federal sentencing laws and practice. Show more