Strike It Lucky Or Strike Out: The Arbitrary Effects Of Changing Sentencing Law.

Abstract

Statute and common law are dynamic, so change is inevitable. This characteristic of the law is desirable and necessary to better the future. However, the courts have both retrospective and prospective jurisdiction. Therefore, a change in law can have retrospective effect in order to enable equality across cases. This is not an undesirable effect as it is unreasonable for those charged under the old law to be able to start over when the law changes. The principle of finality protects the legal system from being sent into a spiral of never-ending appeals. However, there is an issue of the role of finality when there has been a change in sentencing law. There is a strong argument for overriding finality in the interest of justice when someone’s liberty is at risk. However, this perspective is not shared by the courts. Their current approach places undue weight on whether the right to appeal has been exercised, thus producing arbitrary effects. They presume that if the sentence was passed correctly under the law as it was understood at the time, then it should remain unless it would result in an exceptional injustice.In light of Fitzgerald v R, there should be a reconsideration of what place the principle of finality has when sentencing law is changed. The Supreme Court should exhibit a radical exercise of judicial interpretation to protect the rights of an individual. This paper argues Fitzgerald provides justification that when sentencing law changes, the courts should prioritise the liberty of the offender not protecting finality.