The fallacy of punishing offenders for the deeds of others: an argument for abolishing offence prevalence as a sentencing aggravating consideration

Sentencing outcomes are often marked by a considerable degree ofunpredictability. A key reason for this is the large number of aggravating andmitigating considerations, some of which have unstable questionablefoundation. This article argues that one well-established aggravating factor —offence prevalence — should be abolished. Pragmatically, the courts have notestablished workable criteria or a process for establishing whether an offence isprevalent. From a normative perspective, increasing the penalty for prevalentoffences is unsound because defendants should be punished for their acts, notthose of other offenders. Further, on close analysis, all of the rationales (in theform of general deterrence, denunciation and specific deterrence) invoked tojustify offence prevalence do not do so. Abolishing one sentencing variable willnot make sentencing a significantly more coherent or predictable discipline, butthe methodology applied in this article can be used to assess the viability ofother sentencing considerations.