The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).

In whose interests? The best interests principle under ethical scrutiny

This paper critically examines the best interests principle and its role in making decisions about intensive care treatment. In current practice the best interests principle is sometimes relied upon to guide decision making in circumstances when the patient is incompetent, although it is intrinsically linked to inconsistent assumptions about what is meant by quality of life. This situation means that there is potential that moral errors will be made that may result in an unwanted extension of life for some individuals or the premature death of others.

It is difficult to justify such decision making on ethical grounds. A greater understanding of the best interests principle, and consequently the concept of quality of life, is needed in order to ensure that decision making about intensive care is ethically defensible. It is argued that an ideal theory of quality of life provides an appropriate framework for best interests decisions, and that the decision making process ought to, whenever possible, involve the patient's close family.

Decision making in health care: limitations of the substituted judgement principle

The substituted judgement principle is often recommended as a means of promoting the self-determination of an incompetent individual when proxy decision makers are faced with having to make decisions about health care. This article represents a critical ethical analysis of this decision-making principle and describes practical impediments that serve to undermine its fundamental purpose. These impediments predominantly stem from the informality associated with the application of the substituted judgement principle. It is recommended that the principles upon which decisions are made about health care for another person should be transparent to all those involved in the process. Furthermore, the substituted judgement principle requires greater rigour in its practical application than currently tends to be the case. It may be that this principle should be subsumed as a component of advance directives in order that it fulfils its aim of serving to respect the self-determination of incompetent individuals.

Environmental initiatives: towards triple-bottom line reporting

The objective of this study was to investigate the quantity and quality of voluntary environmental disclosures in the annual reports of firms listed by market capitalisation on the Australian Stock Exchange. The periods examined were those immediately prior and subsequent to the release of the Exposure Draft Coalition for Environmentally Responsible Economics (CERES) Global Reporting Initiatives (GRI) issued in March 1999. Using content analysis to focus on the environmental aspects, the study compared 425 annual reports over a two-year period and 60 environmental reports, in order to explore reporting practices in the periods surrounding this intervention. The results suggest a trend to triple-bottom reporting, and a significant change in the quality and quantity of environmental information, albeit in specific categories.

Provocation: the ongoing subservience of principle to tradition

The defence of provocation has been highly criticised. Most
commentators argue that the defence i" misguided. There does not appear
to be any community pressure to preserve the defence. Despite this,
legislatures are reluctant to abolish provocation as a partial defence to,
murder. This article examines the underlying rationale for tile defence. I1
concludes that the defence is founded on a flaw~ed assumption about
human nature-that people are captive to some of their emotional states.
It is also argued that the convoluted and confusing (if not confused) test
for provocation is evidence of the unsound nature of the defence-it is
simply a case of not being able to develop a feasible (and candid) principle
for a doctrine that is devoid of a sound justification.

Macleod and the offence of defrauding the company in one-person businesses: the divergence between legal principle and logic widens

The recent High Court decision in Macleod v R establishes that a director and sole shareholder may be convicted of fraudulently applying a company's property even though the person has consented to the personal use of the company's property. It is contended that while this decision is consistent with the weight of precedent, it is wrong in principle. The decision implies that corporations are not only separate legal entities, but that they are highly virtuous legal entities -- incapable of being imbued with the dishonest intentions and activities of the individuals controlling the company.

The problem of voluntariness: parents and the anti-discrimination principle

Examines the theoretical justifications for the anti-discrimination protection for working parents in Australia. Implication of discrimination, voluntaries and employment; Analysis of the tort principles; Factors affecting the justification for protecting working parents.

Internal consistency and validity of the Stroke Impact Scale 2.0 (SIS 2.0) and SIS - 16 in an Australian sample

Background and Purpose: The impact of stroke is multidimensional however standard stroke measures do not discriminate well when stroke patients are less physically impaired. The Stroke Impact Scale 2.0 (SIS 2.0) is a multidimensional measure of the impact of stroke but its'' psychometric properties require further testing. The SIS-16 is a measure of physical functioning designed to be more sensitive to differences in physical functioning than current stroke outcome measures but there is only preliminary information detailing its'' reliability and validity. The current study examined the internal consistency and validity of the SIS 2.0 and SIS-16 in an Australian sample of stroke patients. Methods: The SIS 2.0, SIS-16, World Health Organization Bref-Scale (WHOQOL-BREF) and Zung''s Self-Rating Depression Scale (SDS) were completed by 74 stroke patients in rural Victoria, Australia.
Results: The item convergent validity index indicated good item convergence of the SIS-16 and SIS 2.0 domains. The item discriminant validity index had only adequate divergence for most SIS 2.0 domains. Internal consistencies of the SIS-16 and SIS 2.0 domains were acceptable (agr = 0.87–0.95). Correlations between the SIS-16 and SIS 2.0 and the WHOQOL-BREF and SDS supported the convergent and discriminant validity of the SIS-16 and all the dimensions of the SIS 2.0 except lsquoParticipationrsquo which lacked discriminant validity. Conclusions: The SIS 2.0 and SIS-16 had good psychometric properties with support for the internal consistency and validity of both measures.

Integrated health impact assessment into the triple bottom line concept

This theoretical study explores the links between the Triple Bottom Line (TBL) concept and the principles of HIA and considers the potential role of HIA to provide a mechanism for integrating health concerns within a broader agenda of government and business. TBL is a framework linked to the broader sustainability agenda that underpins and reviews environmental, economic and social performance of organizations. In its simplest form, TBL acts as a tool for reporting to stakeholders/shareholders organizational performance and the nature of the impacts on the community. The links to HIA are clear as both seek to determine the impact (potential and actual) on the health and well-being of the population.

The study found that TBL can operate at four levels within organizations ranging from reporting through to full integration with the organization's goals and practices. Health is narrowly defined and there are tensions about how to undertake the social accountability functions. The study shows the potential role for HIA within the broader policy and accountability agenda. As health is one of the main outcomes of an organization's activities it needs to be taken into account at all levels of activity.

Giving content to the principle of proportionality: happiness and pain as the universal currency for matching offence seriousness and penalty severity

The principle of proportionality prescribes that the punishment should equal the crime. It is one of the most important principles of sentencing. Yet, despite its widespread acceptance it offers no meaningful guide to sentencing. Hence penalty levels fluctuate greatly between jurisdictions and within jurisdictions. This is because there is no universally agreed criterion for measuring offence seriousness or penalty severity. This article suggests that the appropriate criteria for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. Thus, for example, the level of pain meted out to a rape offender should equal the level of pain caused to a rape victim. Emerging scientific studies on human well-being and happiness show that human beings are similarly built in terms of the experiences that are either conducive or inimical to well-being. This commonality provides a strong foundation to be confident to make reasonably accurate predictions concerning the extent to which adverse events, such as being the victim of a criminal offence or subjected to a form of criminal sanction will stifle human flourishing. This will then allow us to match accurately offence seriousness and penalty level.

The propensity evidence conundrum: a search for doctrinal consistency

Definition of propensity evidence - defining the operation and scope of the outlined rules under the current common law doctrine and statutes of Australia - how it differs from the relationship and res gestae species of character evidence.