Sentencing for Assaulting Persons over 60 Years of Age - Case Study Example

Argument For or Against Mandatory Sentencing for Assaulting Persons Over 60 Years of Age Student’s Name Institution Introduction The offence for which the sentence is in question is provided for in section 317 of The Criminal Code, 1913. The sentence is provided for as 7 years for assault occasioning bodily harm and also has an aspect of aggravation. This paper will embark to show the sentence is unsuitable taking into consideration various factors that should be observed in sentencing process. It is important in this paper, to start with some definitions that will help in elaborating the content of the paper. The paper will then focus on the purposes of sentencing in an attempt to find out the suitability of the sentence in question. Other issues such principles of rule of law and the right to a fair trial. The effects of mandatory sentences will also be discussed and finally, the reforms in sentencing. The first definition to be considered is that of assault. The Criminal Code adopts a long definition of assault but basically takes assault to include instances of touching, striking or moving another person by use of force whether directly or indirectly where the person does not consent or if the consent was obtained through fraud. The person who makes the attempt must possess the immediate means to affect his motive (Criminal Code, 1913. S 223). Mandatory sentence on the other hand have been defined as sentences that specify the minimum sentence to be imposed in relation to a specific offence.( Roth, 2014 at pg 1). This therefore means that after a person has been found guilty of the offence, there can only be a single sentence meted out on the offender. Purposes of Sentencing In order to understand whether the mandatory sentence under the Criminal Code, 1913 conforms to the purposes of sentencing, it is of paramount importance that the reasons for sentencing be discussed. In any system of laws, there is a common underlying reason as to why sentencing exists. Most jurisdictions which follow common law have had a set of reasons for the existence of punishment for the offenders. The major reason was that the community should be protected at all cost. The purposes are clearly laid down in Crimes ( Sentencing Procedures) Act as follows: 1) Ensuring the offender is adequately punished for the offence. 2) Protecting the community from the offender. 3) Making the offender accountable for their actions. 4) Rehabilitation for the offender. 5) Recognising the harm occasioned to the victim. 6) To serve as a deterrence for the offender and others 7) To make the offender denounce such actions. (Crimes ( Sentencing Procedures) Act , 1999, s 3A) The court must therefore be guided by the above purposes. It should try to ensure that a balance does exist and that not only one of the purposes is met. The provision in question provides a mandatory sentence to the offender. Mostly mandatory sentences are meant to have a deterrence effect to the offender and others (Roth, 2014). Roth argues that mandatory sentences serve as a strong deterrent factor especially to would be offenders. There is however a question of whether other purposes of punishment or sentencing are observed in the process.it also questionable as to whether the purpose of deterrence is achieved (Council of Australia, 2014). Despite the fact that this might be of benefit to the community, the aspect of rehabilitation of the offender is not considered. This argument is based on the fact that the offender is also a member of the community. The fact that he or she will eventually go back to the society should be considered. Some of the harsh sentences that have been meted before have served to harden the offenders rather than to rehabilitate such persons (Roth, 2014). Furthermore, the sentence should not be seen as merely punitive, (R V Lattouf, 1996). There should therefore an aspect of rehabilitation in the sentencing. However in this case, the only objective which seems to be observed is that of punishing the offender. It is important to ensure that all the objectives have been considered to some degree. Even though the balancing may present a challenge, there is an obligation to take into consideration each and every aspect (Veen v The Queen (no. 2) (1988) 164 CLR 465 at 476). Discretion of the Judges Under common law and also under statute, judges are given the discretion to consider sentences depending of the circumstances of each case. The reason for this discretion is to ensure that the punished meted out on the offender is equivalent to the offence. The existence of mandatory sentences in issues of assault to persons over the age of 60 therefore serves to take away this discretion (Council of Australia, 2014). It is important to note that no two cases can be exactly the same. There are bound to be differences which the presiding judge ought to consider if fairness is to be achieved (Council of Australia, 2014). Each and every detail of the case is to be considered in arriving at the decision (Neil v R (1982: 326). It is therefore important not to give a blanket sentence for the offence of assault to persons older than 60 years of age. Instead, the courts should be allowed to look at individual cases and based on the evidence provided, make an informed decision as to the punishment that should be necessary. The principle of proportionality Under common law, the punishment given to the offender should match the offence committed. This always hard to achieve especially where there is a mandatory sentence. The Act should instead provide for maximum sentences for the offence such the nature of the harm occasioned can be estimated against the punishment to be given. This should be observed in an attempt to achieve fairness, both to the victim and the offender. The sentence so imposed must correspond to the seriousness of the offence (Sentencing Act, 1995( WA). S. 6(1)). The Act proceeds to outline the issues to be considered in establishing the seriousness of the offence. This includes: the penalty imposed by law, the circumstances of the offence including the vulnerability of the victim, aggravating factors and mitigating factors (Sentencing Act, 1995(WA). S. 6(2)). In as much therefore as the law may provide for a mandatory sentence on assault on persons above the age of 60, the court is also under an obligation to ensure that the circumstances of the particular case are observed to ensure that fairness is achieved. The circumstances in this case do not only lie in the perspective of the victim but also the offender. It also impossible to have all the victims suffer the exact level of harm as a result of assault, in order to ensure proportionality between the harm and the punishment, an open mode of sentencing should instead be adopted. Mitigation and aggravation Under criminal law, there are those facts in offences that if they exist, may serve to have the punishment either reduced or increased as provided in law. In the case of the offence in question, the offence is aggravated by the fact that it involves persons of 60 years of age and above (Criminal Code Amendment Act 1996 (WA) s 4). Whereas the aspect of aggravations seems to have been taken into account while providing for the penalty of this offence, an important aspect seems to have been disregarded. The sentencing should also allow the consideration of any mitigating factors that might be present in the case in question. Mitigating factors are important as they may show the state of the offender at the time the offence was committed. The mitigating factors should be put into consideration by the court before a sentence can be passed. The factors may be used to reduce the sentence. This may occur even where the penalty prescribed by law is commensurate to the offence committed (Sentencing Act , 1995 (WA) , s 6(3)). The mandatory sentence on offenders therefore does not give the court a chance to consider the existence of mitigating factors that may be present in some cases. This in essence goes against the principles of sentencing. Arbitrariness The sentence results to arbitrariness in the essence that the principles of justice are not observed. The offender as stated earlier, should be given a punishment that corresponds to the offence he or she has committed. Where the law seems to go against this principle and provides for a punishment which might result to arbitrariness. Arbitrariness was said not necessary to be something against the law but rather, something that results to inappropriateness and injustice (A v Australia (560/93)). Such a sentence should therefore be avoided as persons who might have been subjected to a lesser sentence according to the harm so caused by them, might be subjected to a harsh punishment. The result of this is an unjust outcome which the law should strive to avoid. Right to a fair trial The right to fair trial is guaranteed to everyone, which includes the right to have the sentences reviewed or appealed against (ICCPR, ART. 14(5)). The mandatory sentence however as provided in section 317 of the Criminal Code restrict any possible avenue whereby an individual may appeal to a higher body to have the sentence revised. This is therefore an infringement of the right of the accused to a fair trial. It amounts to a breach of international law which the State is under obligation to observe. The right to a fair trial is negated where the judge is compelled to impose a compulsory sentence in form of a prescribed minimum sentence (Ferguson v Setter and Gokel (1997) 7 NTLR 118).It is not in argument that the right to appeal on substantial aspect of the case is still available, however, the penalty itself cannot be appealed against (Law Council Of Australia, May, 2014, p. 23). Another aspect of human rights that comes up is on detention. This should not be done in an arbitrary way (Joseph, 2000) Effect of the sentence on the trial process Most of the minor offences can easily be admitted to. Such cases are solved quickly since the trial process is omitted and the court goes direct to sentencing. However, this may not be the case in regard assault under section 317 of the Criminal Code. This is because the penalty imposed is very harsh especially where the incidence might not have been so serious as to warrant such a punishment. The resulting outcome will be a clogged judiciary with loads of cases (Refshauge, 2011) no one would subject themselves to such a punishment. They would rather not admit and hope that the court will find them not guilty of the offence. The offender may not even have the benefit of the plea being considered as a show of being remorseful, in some instances such an offender may have the sentence reduced. This has been known as the utilitarian discount (Refshauge, 2011). The Economic effect The mandatory sentence of the specified assault brings an undesirable effect on cost on the government. The first aspect of the economic effect is on the increased number of cases which might call for an expansion on the number of courts or an increase in the number of court officials to handle the increased number of cases. This will be as a result of more pleas of not guilty entered in relation to this particular offence as discussed above. The other aspect will be on the increased number of inmates as a result of the mandatory sentence. The sentence is also long which will make the government spend quite an amount of cash on the maintenance of a single individual in the cells. The amount has been estimated to be $ 300 per head per day (Steering Committee for the Review of Government Service Provision, 2013, paragraphs 8.24, 8.27. 8.28.) .This cost would have been avoided only if there would have been room for alternative forms of sentences at the judge’s disposal. Reform in sentencing For a long time now, harsh sentences have been meted out offenders starting from the ancient periods where execution was the sole punishment. There has since then developed more informed means of punishment. These have been affected as a result of wide studies in the field of criminology and sociology in an attempt to understand the victims, offenders and also the nature of crimes. It is from such studies that the principles of sentencing are founded. There is recognition that, besides the sentence punishing the offender, it should also take into consideration aspects that may help him or her be accepted back into the society as elaborated above. In light of the above mentioned, the law should therefore provide the judges with options while sentencing to enable them evaluate the proper modes of rehabilitating the person in question. Most people might require different form of treatment. In the end, both the public and the offender may be able to co-exist (Ministry of Justice, 2010 p. 11). The objective here is to ensure that a solution to the causation of offensive behaviour is addressed. (The Honourable Wayne Martin AC, Chief Justice of Western Australia, 2014, pg. 14)Without having a room whereby the judges may exercise their discretion to achieve the desired effect, it may be hard for any progress to be made. There may be an outcry that the sentences against offenders are lenient, however the laid down principles of law must be observed to ensure that the offender is not punished more than they should, only on the basis that the public demands so. The circumstances of the case must be addressed. (The Honourable Wayne Martin AC, Chief Justice of Western Australia, 2014 p. 34) Conclusion The sentence on aggravated assault on persons above the age of 60 years causing grievous bodily harm according to section 317 of the Criminal Code should be revised to include a more flexible sentence. This paper has discussed various aspects that should be considered in sentencing including the purpose of sentencing. The court, as shown in the paper should take into consideration all the purposes or objectives of sentencing and try to aim at striking a balance. Other issues that have been considered are generally the guidelines to be used in sentencing such as the consideration of the rule of law and the proportionality of the sentence to the offence. Other issues such as mitigation and aggravating factors have also been considered. In the above discourse, the effects of the sentence such as taking away the right to a fair trial as provided for under the International Bill of rights, the effects on the court process and also on the economy at large have been reviewed. In addition, it has included a brief on the reform taking place on the sentencing practices. All the above issues as discussed have been used to arrive at a conclusion that the sentence in unfavourable and the Act needs to be amended to take care of the various issues raised in the paper, most importantly, the issue of right to a fair trial. References A v Australia, communication No 560/1993. U.N Doc. CCPR/C/59/D/560/1993 Criminal Code (1913) (WA) Criminal Code Amendment Act (No. 2) 1996(WA) Crimes (Sentencing Procedure) Act 1999 (NSW) Ferguson v Setter and Gokel (1997) 7 NTLR 118 International Covenant on Civil and Political Rights (1966), United Nations Law Council of Australia (May, 2014). Policy discussion paper on mandatory sentencing Retrieved from www.lawcouncil.asn.au/lawcouncil/index.php/library/ R v Lattouf (1996) NSWCCA, Mahoney, ACJ Refshauge, R. (2011). Sentencing and the prosecution, Australian Institute of Criminology Roth, L. (2014). Mandatory sentencing laws, NSW Parliamentary Research Service S. Joseph, J. Schultz, M. Castan (2000) The international covenant on civil and political rights OUP, Oxford Steering Committee for the Review of Government Service Provision (2013) Report on Government Services , Vol. 1, paragraphs 8.24, 8.27. 8.28. Sentencing Act 1995 (WA) Martin, W., CJ ( October 2014) The art of sentencing - an appellate court perspective: Singapore Academy of Law & State Courts of Singapore, Sentencing Conference 2014 Ministry of Justice (2010) Breaking the cycle: Effective punishment, rehabilitation and sentencing of offenders. Retrieved from https://www.gov.uk/consultations/ Breaking-the-cycle -effective-punishment-rehabilitation-and-sentencing-of-offenders.---2 Neal v R [1982] HCA 55; (1982) 149 CLR 305 Veen v The Queen (no. 2) (1988) 164 CLR 465 Read More