The Mandatory Sentencing in Australia - Assignment Example

Topic: Mandatory Sentencing Student’s name Course name Lecturer’s name 12th September 2011 Introduction Judicial discretion in Australia where legislative power and judiciary power separates is primarily important in sentencing. In regards to recent Queensland Police Union President Ian Leavers suggestions on implementing mandatory sentencing against people who assault police, this paper will examine judicial discretion and mandatory sentencing separately and then discuss the effect mandatory sentencing might have on judiciary discretion. Finally, the point of view raised by Ian Leaver that mandatory sentencing should be adopted will also be explored and addressed. According to Ashworth and von Hirsch (1998) 1the discretion of the judiciary can be defined as a reflection of the indepdence of the judiciary which originates from the power separation doctrine entrenched in the constitution. Judicial discretion is therefore a form of reflection of judiciary independence which derives from the doctrine of separation of powers. When Judges exercise judicial discretion it means the judges are allowed to decide a case appropriately among sorts of possible outcomes. Basically, the decision arrived at by the judge is not be taken as a reflection of the free will of the judge but the will of the law. The importance of judicial discretion can be reflected in the following aspects (Helen, 1999)2. Firstly, in delivering a fair and well balanced sentencing result. During criminal proceedings prosecutors representing the public interests focus majorly on deterrence function. Similarly, the defence lawyers representing the interests of the suspects focus on vindicating function (Nicholas, 1992)3. Commonly, these roles and judicial forces compete intensely with each other during criminal sentencing. Judges naturally play an important role of exercising judiciary discretion guided by the will of the law to deliver a fair and well balanced sentence for the parties involved in the trial. Secondly, the importance of judicial discretion is to deliver a tailored judgment towards each specific situation (Graeme, 1999)4. Although criminal offences are commonly categorized by the types of offences it does mean that the sentences on the same categories of offences are always the same. With regard to the unique characteristics of each offence judges need to exercise discretion to value the merits of individual cases in order to deliver an appropriate sentence which is morally right and which relates to the case at hand (George, 1999)5. However, if there is no such flexibility brought by judicial discretion it is impossible for judges to make a just sentence for the people. For example, guided by the Summary Offences Act 2005, judges deliver different sentences to minor offences committed by the offender which might be similar in nature. Thirdly, equipped with knowledge and expertise to deal with lawsuits, judges not only have special training to undertake sentencing roles but they also posses expertise which keeps developing through years of practical criminal sentencing. Such knowledge and experiences are valuable assets for judiciary independence which enable the judges to get in-depth into individual cases in order to identify unique merits of the cases and the consequences their judgement may bring to the public. With regard to Queensland Police Union president Ian Leaver, his comments imply that mandatory sentencing should be applied on people who assault the police. To get a better idea about its impact to judicial discretion it is necessary to first have a general look about what is mandatory sentencing then get into details about the effect of mandatory sentencing. Basically, a mandatory sentence is a limitation on judicial discretion with the provision of minimum penalty for particular offences (Martin, 2000)6. Although Western Australia and the Northern Territory introduced mandatory sentencing legislation more than ten years ago it has always been a topical issue in Australia with divided views. People often compare the deterrence that mandatory sentencing could bring and the detriment it could impose on judicial discretion. The proponents of mandatory sentencing often point out that great deterrence could reduce crime rates by implementing mandatory sentences. They also argue that mandatory sentencing should be applied equally to all offenders with the same punishment. So there is need for judicial discretion to accommodate opinions from public and parliament to show some merciless posture to potential offenders. The Offenders Minimum Imprisonment and Rehabilitation Act (2006) is one of the legislative provisions that advocate for mandatory sentencing as one way of deterring sexual offenders. The question to be asked is whether “mandatory sentencing will make judicial discretion process more transparent and accountable”. Mandatory sentencing will make judicial process seemingly more transparent when the same penalty is applied for all offenders who have committed the same offence (Hammond, 2007)7. On the contrary, it could also make the judicial process to be less transparent particularly when lawyers are forced to resort to negotiations with courts in the hope to plea for a reduced charge when they are faced with a tougher penalty for the same offence. This is the argument presented in the Wynbyne v Marshall (1997) 11 NTR 117 which illustrates the negative impact of mandatory sentencing. Additionally, the prosecutors and police are left with more power to decide whether to sue an offender as the outcome or a séance in mandatory sentencing is almost certain. So the courts discretion is somehow shifted to pre-trial authorities. Such changes can be hardly claimed to be transparent or fair. Furthermore, judges make mistakes sometimes but this does not mean that by implementing judicial discretion a perfect judicial system will be created (David, 1987)8. By implementing mandatory sentencing there would be lack of concerns for the circumstances of that offence such as its effect, nature and influences for all parties involved and the effects to the public. So by implementing mandatory sentencing it reduces the insights being brought into individual cases because the judge is left at liberty to give the same sentence to the same categorized criminal offenders which could significantly reduce people trust on judicial system. In addition, mandatory sentencing means more lawsuits will come up on courts which potentially reduce the efficiency of judiciary systems. The other question to be asked “Is mandatory sentencing a more justice approach? The primary question is why a certain type of offence will be more particular to be entitled for mandatory sentencing than other types of offences. Often there are particular groups of people in the society inclined and known to commit certain types of offences. Mandatory sentencing eliminates the universal sentencing standard and places stricter rules on the potential offender which is quite discriminating indeed. This does not apply to social disadvantage groups like offenders with mental illnesses who require special treatment. Such mentally ill offenders are less concerned about mandatory sentencing. Although, there is no prove from census data generally people who committed offences to assault police are majority of male and their ages are relevantly younger groups spread compared with other sophisticated criminal offences. So the younger male groups are specifically targeted by such mandatory sentencing policy. It is imperative to note that when police abuse their power it seems the public and particularly the young males might be more vulnerable on courts to protect their legitimate rights even if such assault is out of provocation or self-defence. For instance in Charrignton v. Korac (2008) the offender was found to obstruct or assault the police by refusing to open the door. Mandatory sentencing would make such a person the target of the police and the courts. In Price v. Townsville District Court (2010) the police officer was found guilty of abusing his power and assaulting citizens. In such cases it is clear that mandatory sentencing may result into many young people going to jail for mistakes committed by the police. Is mandatory sentencing a stronger deterrence to offenders? Generally speaking, there might be a higher deterrence effect to the offenders as opposed to a situation when such a proposal is absent or lacking (Austin, 2007)9. The Crime (Repeat and Serious offenders) Act 1992 is one of the legislative provisions introduced to help deter offenders with accumulated convictions from committing further crimes. However, whether it can substantially decrease the crime rates or put some positive effect on long term trend on the crime rate is another question to be addressed. On a simple comparison we presume that countries with life sentence have lesser serious crime rates than countries where life sentence has been abolished? The answer is obviously No. For the purpose of argument factors such as culture, social structure and education also play important role in influencing crime rates. Then we may simply ask whether life-sentence in Australia if implemented could substantially reduce serious criminal offences by sending a stronger signal to the public? The answer to this question can be argued from all dimensions but there is doubt that the core values and significance of abolishing life sentences have been recognized by the general Australian public and we understand from a long term trend that the reduction of crime offences rely not only on new offender but also on rehabilitation of existing / previous offenders. For most criminal offenders, putting them in jail means that they lose their employment, close family bond with their relatives as well as their properties such as houses if they bought such houses on mortgage terms. So if someone has been jailed, it probably means a lesser chance of getting rehabilitated but being marginalized and it could ultimately lead to more probability of committing a crime again when they are released from jail (Austin, 2007)10. However, implementing judicial discretion allows the judges to comprehensively consider the situation and allow a maximum chance for the purpose to rehabilitate the criminal offenders as jails are not always the best place to stop criminals from committing the offences again. In conclusion, mandatory sentencing for assaulting police offences is unjust. It is a potential ground for injustice. It can also affect judicial discretion negatively and make deterrence actually ineffective as seen above. While empirical research might be needed to provide more supplementary evidence on whether or not Queensland adopts mandatory sentencing on assaulting police offences will depend on a complex mix of social, judicial and political factors, and given the above reasons, it is unlikely that enough community support in favour of the mandatory sentencing proposal can be achieved easily. Works Cited Ashworth, A., and von Hirsch, A. Principled Sentencing, 1998, Hart Publishing. Austin, L. Public Opinion, Sentencing and Lenience: An Empirical Study Involving Judges Consulting the Community. Criminal Law Review 769 27, 2007. David, I. Public Perception of Sentencing in Perth, Western Australia, 20 Australian and New Zealand. Journal of Criminology 163, 1987. George, Z. Mandatory Imprisonment of Property Offenders in the Northern Territory, 22 University of New South Wales 302, 1999. Graeme, E. Mandatory Sentencing Legislation: Judicial Discretion and Just Deserts. University of New South Wales 256, 1999 Hammond, J. Sentencing: Intuitive Synthesis or Structure Discretion, New Zealand Law Review 211, 2007. Helen, B. Punishment is blind: Mandatory Sentencing of Children in Western Australia and the Northern Territory. University of New South Wales 286, 1999. Martin, F. International Law, Australian Criminal Law and Mandatory Sentencing: the Claims, the Reality and the Possibilities. 24 Criminal Law Journal 184, 2000. Nicholas, C. Mandatory Life Sentences in New South Wales. University of New South Wales 290, 1992. Case laws and legislative provisions Wynbyne v Marshall (1997) 11 NTR 117 The Crime (Repeat and Serious offenders) Act 1992 Offenders Minimum Imprisonment and Rehabilitation Act (2006) Summary Offences Act 2005 Charrignton v. Korac (2008) Price v. Townsville District Court (2010) Read More