Punishing parents: a study of family hardship in Australian sentencing

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

Crime, punishment, family violence, and the cloak of legal invisibility

In this chapter, the authors trace how the Anglo-Australian system of criminal law constructs crime within the family differently from other forms of crime. The zone of legal impunity for intra-familial crime was carved out by special defences and immunities, such as provocation and marital rape, as well as policing policies and practices that effectively decriminalized 'domestic' forms of physical and sexual abuse. Legal impunity was never absolute, and there were notable exceptions where the familial and gendered aspects of the crime in fact aggravated the offence, such as the law's treatment of spousal murder by females as form of 'petty treason', warranting the most severe punishment of burning at the stake! Reforms in the late 20th century removed overt forms of gender discrimination from the criminal law, exposing a new legal visibility of crime within 'the family', though as the authors conclude, there are still remnants of differential treatment in fields of sentencing law and practice.Arts, Education & Law Group, School of Criminology and Criminal JusticeFull Tex

Crime, punishment, family violence, and the cloak of legal invisibility

In this article, the authors trace how the Anglo-Australian system of criminal law constructs crime within the family differently from other forms of crime. The zone of legal impunity for intrafamilial crime was carved out by special defences and immunit

Federal offences

[Extract] This chapter provides an overview of the growing area of federal criminal law. The growth of the criminal law of the Commonwealth is a recent phenomenon. Historically, the criminal jurisdiction of the Commonwealth was primarily confined to areas of law that were clearly and directly linked to a limited range of enumerated powers within the Constitution. It was (and is) necessary for any system of law to have a range of civil and criminal sanctions attached to it in order to be enforceable. This chapter will discuss how the Commonwealth's jurisdiction over crime began slowly, expanding rapidly during World War I and II, and then growing substantially from the late 1980s. With the advent of the Criminal Code Act 1995 (Cth) (the Criminal Code), the criminal law of the Commonwealth has grown exponentially