Melbourne University Law Review 2024 Annual Lecture

Опубликовано: 06 Июнь 2024
на канале: Melbourne Law School

263

Punishment and Responsibility: An Assessment of Moral Culpability in Sentencing
Presented by the Hon Justice Karin Emerton, President of the Court of Appeal.

Sentencing is based on a conception of people as rational, autonomous actors.

However, day to day, judges are tasked with sentencing offenders whose capacity to exercise appropriate judgment and make calm and rational choices is compromised — even though they are considered criminally responsible.

The notion of a rational and responsible agent as the touchstone for assessing culpability often leads to a heavy reliance on expert psychological evidence. However, this arguably reductive analysis of culpability through the lens of psychologism is not necessarily well adapted to dealing with the reality of structural disadvantage in the criminal justice system.

The lecture will examine two ways the courts have sought to manage these difficulties consistently with the principle of individualised justice: principles for the mitigation of moral culpability (R v Verdins) and the principles articulated in Bugmy v The Queen.