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The problem of harm, its significance in the criminal law, and its role in sentencing law

Davis, Julia 2004 , 'The problem of harm, its significance in the criminal law, and its role in sentencing law', PhD thesis, University of Tasmania.

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The concept of harm and the nature of its proper role in the criminal law has challenged legislators, judges and philosophers for over two thousand years. More recently, sentencing commentators have suggested that we need a theory of harm that can justify imposing principled controls on the extent to which the state is entitled take the harmful effects of a crime into account when punishing offenders.
This thesis attempts to resolve both the philosophical and the practical problems posed by the highly contested concept of harm. It abandons the traditionally divisive debates over the purposes of punishment and focuses instead on constructing a two dimensional model of a crime that reflects our common nature as human beings, our shared language and culture of value and our common identity as members of a community governed by a state which exists for the purpose of providing the conditions under which we can live a good life together. This equality based model links the three concepts of harm, wrongdoing and fault with the three elements of the good life that we appear to value most, namely, our welfare, our autonomy and our desire to be respected by others as equals. It is used to analyse our criminal justice practices with the aim of ensuring that the decisions that we make at each of the three key decision making stages of legislation, conviction and sentencing can be structured around a single, coherent and consistently applied scheme of values.
The thesis concludes by presenting an account of the criminal law and the sentencing process that relies upon the normative aspects of wrongdoing and fault to justify imposing limits on the role played by harm. This model:
•allocates distinct functions to the concepts of harm, wrongdoing and fault in the assessment of the seriousness of a crime;
•explains the significance of harm's role in the legislative task of setting general penalty ranges and the judicial task of determining individual sentences;
•contains a two-limbed remoteness test limiting the categories of harm that may be taken into account;
•justifies a principle of comparative fault that limits the quantum of punishment where the state itself is partly responsible for the harm caused by offenders; and
•demonstrates that it is possible to construct a principled and coherent account of the criminal law and sentencing law without first having to agree upon a theory of punishment.

Item Type: Thesis - PhD
Authors/Creators:Davis, Julia
Keywords: Criminal law, Sentences (Criminal procedure)
Copyright Holders: The Author
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Copyright 2004 the Author - The University is continuing to endeavour to trace the copyright
owner(s) and in the meantime this item has been reproduced here in good faith. We
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Additional Information:

Thesis (Ph.D.)--University of Tasmania, 2004. Includes bibliographical references

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