Importance of Mandatory Sentencing - Essay Example

Mandatory Sentencing Student’s Name Course Professor Date Mandatory sentencing is a fixed penalty which is set by the parliament for committing a criminal offence (Bagaric, 2000). In most instances it refers to mandatory sentence of imprisonment. In other words, it refers to the type of sanction used rather than the quantity of the sanction. It is the minimum sentence over a certain criminal activity. It therefore gives a clear explanation of the specific sanction and the minimum level of sanction. It is however worth stating that, mandatory sanction has been controversial in the fact that there is no clear demarcation of how it provides an appropriate sanction (Bagaric, 2000). The issue of degree is contentious. When using the rule of law, the justice system should substantially provide equality before the law. In the use of equality, sentences should be appropriate for the crime which in other words the punishment must fit the crime. The law must protect the rights of the people and provide justice to the victims of the crime. According to section 297 of WA Law for Grievous Bodily Harm, any person who inflicts grievous bodily harm to another person is guilty of a crime. The bodily harm that endanger, or likely to endanger or even cause permanent injury to health is a crime (Bagaric, 2000). Section 221 of the criminal code defines aggravation and victims of over the age of 60 years are amongst the circumstances of the applications of the penalty. In section 61 Crimes Act 1900 states that, anyone who assault any person and causes body harm is liable to imprisonment for two years. This may be in form of battery or recklessly causing person harm. This is more elaborate in Barton v Armstrong [1969] 2 NSWLR 451-455. According to section 297, assaulting and causing body harm to a person aged 60 years and above is categorized to apply higher penalty of 14 years. This paper support the upholding of mandatory sentencing for assaulting persons over 60 years of age and causing grievous bodily harm. In support of Mandatory sentencing The first thing to note is the fact that, sentencing as addressed by the NSW Court of Criminal appeal is not a binding in a formal sense (Colvin, 2003). In actual facts, they are not precedents or demands that must be followed. Rather they are just as indicator for sentencing judge. This in other words means that, they are not binding rules which must be followed in every case. The judge has the power to retain his/her discretion but must work within the guideline as stipulated (Morris, 2008). Importance in deterrence Mandatory sentencing deters offender from engage in criminal activities that may assault the aged. The consequences promote social stability and reduce crime (Warner, Davis, Waler, Bradfield & Vermey, 2011). This is due to the fact that, offenders are rational beings who would tend to avoid any crime if the consequences of the same are severe (Morgan, 2002). At the same time, anyone who intends to assault an aged person has an understanding that certain conducts, like those that can cause any harm to them are crimes which will in the long run have a penalty if caused. In R v Raddich case for instance, the case was categorical that the punishment was geared towards the protection of the any other person who may commit a crime or rather they meet the same severe repercussions. In many regions also, the reason of severe punishment is to deter the society from following the same steps which may lead to a punishment (Morgan, 2002). Mandatory sentencing involving the aged should be supported at all cost. First, the aged may be prone to assaults and if not protected they will be taken advantage of. This sentencing will deter offenders from committing the offence (Marin, 2003). In countries like the United States, mandatory sentencing has been seen a reducing factor of certain crimes. In 2009, Australia police minister Rob Johnson announced a decrease in crime when there was the introduction of mandatory sentencing for assaulting a police officer (Morgan, 2002). Statistically, there was a 28% decrease of such crimes in the first year when the laws were introduced (vvvvvv). This therefore means that, when the same is upheld in dealing with assaulting those above 60 years, then the same shall be experienced. Empirical studies indicate that, the threat of imprisonment result to a certain amount of deterrent effect (Morgan, 2002). However, the same literature indicates that there is no evidence that an increase in the severity of penalties produces a corresponding increase in deterrence. However, when people are aware of what awaits them when they commit a certain crime, then this will deter them from committing it in the first place (Warner, Davis, Waler, Bradfield & Vermey, 2011). It is an adequate retribution In the use of mandatory sentencing when dealing with assault and harm on people aged 60 years and above, the offenders should and deserve to suffer (Bagaric, 2000). Retribution is founded on the principle that those who harm other should be made to suffer. Offenders deserve a punishment proportional of the harm caused by the offending conduct (Morgan, 2002). The Crime Support Association (CVSA) states that, judges have been lenient on offenders since they mostly work and live in affluent areas where there are crime rates (Butterworths, 1997). Bearing in mind that the aged are vulnerable the proportionality principle should be applied. When this is the case however, there is need to sensitize the public on the particular circumstances of the case and the offender, they will view the judges sentence as appropriate. In the long run, this will ensure that the public confidence on the judiciary is restore and disproportionate mandatory sentencing outcomes avoided through public awareness of sentencing (Warner, Davis, Waler, Bradfield & Vermey, 2011). Prevention of further harm When the offender is incapacitated from re-offending through isolation from the society and through imprisonment, then there can be a prevention of further crime. When rocked in, the offender has no capacity or even any chance to cause more harm (Warner, Davis, Waler, Bradfield & Vermey, 2011). This can be done through increasing sentencing severity for all offender who have caused harm on aged or even changing the policies and legislations that attempt to identify offender who are more likely to commit such crimes in the future and sentencing them for lengthy terms (Bagaric, 2000). In this case, first time offenders can face a severe punishment while those who repeat the same crime can face lengthy terms in prison. However, one thing that should be noted is that the offenders will at one time return to the community. This calls for rehabilitation during their time in prison so that there can be a change in behavior (Warner, Davis, Waler, Bradfield & Vermey, 2011). Denunciation of the criminal conduct Mandatory sentencing people who have insulted vulnerable people, who in this case are those above 60 years should be a clear message to the community and the offender of the society’s disapproval of the harming the aged and that the law must be obeyed at all times (Warner, Davis, Waler, Bradfield & Vermey, 2011). In a crime involving the old should be seen to be a complete violation of society’s values (Bagaric, 2000). Mandatory sentencing should therefore be used as a definition of moral code which the society must observe and adhere to. However, much concern must be applied in the case of a mentally ill offender. In such a case, the most appropriate punishment should be considered (Warner, Davis, Waler, Bradfield & Vermey, 2011). Consistency in sentencing Offender who have insulted and treated those over the age of 60, causing body harm should be treated alike. When judges are guided by specific legislation and the common law, there can never be consistency in the sentencing. However, in applying mandatory sentencing, the consistency by prescribing an already defined penalty for all offenders of this offence is appropriate (Anderson, 2006). It is also very clear that, mandatory sentencing addresses some of the issues that have remained complicated in the justice system (Warner, Davis, Waler, Bradfield & Vermey, 2011). Some of them are sentencing disparity and lenient sentences. In the use of mandatory sentence on individuals who have caused harm on old people, there is uniform throughout the judicial system and this ensures that criminals are punished commensurate with the moral capacity by attaching the sentence to the crime and not to the apprehended person (Warner, Davis, Waler, Bradfield & Vermey, 2011). In actual facts, the mandatory sentence on people insulting or harming the aged shows the harm done to society and therefore there is need to reflect the same in the sentence (McGuire, 2005). Mandatory sentencing reduces the discretion judges have in determining the course of the sentence replacing the same with a well defined rule deliberated by the legislature. This is due to the notion that judges were soft on criminals giving lower punishments contrary to even people’s expectations (Warner, Davis, Waler, Bradfield & Vermey, 2011). Accordance to the Sentencing Act 1995 (WA), the sentence must be commensurate with the seriousness of the offence. The seriousness of the case is determined by the aggravating factors. At the same time, in section 16A of the Crimes Act 1914 (Cth) states that ‘the severity appropriate in all circumstance of the offence’. This means that, the mandatory sentencing has the entire basis to punish the offenders in relation to the harm done to the victim (Warner, Davis, Waler, Bradfield & Vermey, 2011). At the same time, literature depict that, mandatory sentencing does not target a certain race and are racially neutral on the face of legislation and thus they do not have racially discriminatory purpose (Bagaric, 2000). Mandatory sentencing is this kind of cases eliminates personal bias. Bearing in mind that every person has his or her own opinion on this subject, only mandatory sentence can help create a standard of justice that is termed as equally applied to all parties who are charged with the same crime irrespective of who they are (Gray, Anthony & Elmore, 2012). On the other hand, everybody deserves a fair chance. When the sentence is too lenient gives the offender a notion of like he is getting away with the crime (Queensland Law Society, 2014). When mandatory sentence is applied, there is a guarantee that sentences are uniformity in the justice system so that offenders punished in relation to their moral culpability. Mandatory sentencing increases the concern that people would be held accountable for criminal (Warner, Davis, Waler, Bradfield & Vermey, 2011). It is clear that recidivism is not well dealt with in the criminal law systems. Mandatory sentencing policies deal properly with repeat offences that are a clear indication of a criminal risk. Additionally, it reduces the lengthy and costly pre sentencing reports and thus it increases overall efficiency (Stemen, 2007). The aged are vulnerable, this calls for strict measures that will protect them from any criminal activity. This being the case, there is needed to have mandatory sentencing whenever there is a insult and harm inflicted them. When this is not strict, then they will not get justice whenever they are victims of this crime. According to the law, one should be punished in accordance to the harm caused. The degree of harm is crucial in determining the sentence. However, mandatory sentencing in such a case should be the only option in ensuring that the vulnerable are protected and such crimes are deterred (Warner, Davis, Waler, Bradfield & Vermey, 2011). In case one is dealing with an offender who has two or more such conviction, then he/she must be sentenced to a term of life imprisonment, and this is with a minimum term being the greater. This will make sure that all offenders are warned of the same consequence in case they commit the same crime (Smit, 2006). This therefore means that, in many instances, mandatory sentencing can be used as a example of what an offender gets. This as mentioned will act as a deterring aspect to the same crime. At the same time, making sure that the offender suffers all the consequences which are tired around the sentence is very crucial (Warner, Davis, Waler, Bradfield & Vermey, 2011).it is the obligations of the policy makers and the legislature to make sure that there are accurate laws and regulations that govern mandatory sentencing. This is attributed to the fact that, if no keen policies, then the sentence may end up being applied to individuals who are innocent and this will not in the long run serve the purpose. Conclusion It is clear that, mandatory sentencing deters offender from engage in criminal activities that may assault the aged. This is the long run promotes social stability and reduce crime. This is attributed to the fact that, offenders are rational beings who would tend to avoid any crime if the consequences of the same are severe. At the same time, anyone who intends to assault an aged person has an understanding that certain conducts, like those that can cause any harm to them are crimes which will in the long run have a penalty if caused. In many regions also, the reason of severe punishment is to deter the society from following the same steps which may lead to a punishment Mandatory sentencing leads to retribution. Retribution is founded on the principle that those who harm other should be made to suffer. Offenders deserve a punishment proportional of the harm caused by the offending conduct.. Bearing in mind that the aged are vulnerable the proportionality principle should be applied. When this is the case however, there is need to sensitize the public on the particular circumstances of the case and the offender, they will view the judges sentence as appropriate. In the long run, this will ensure that the public confidence on the judiciary is restore and disproportionate mandatory sentencing outcomes Mandatory sentences sends a clear message to the community and the offender of the society’s disapproval of the harming the aged and that the law must be obeyed at all times. Mandatory sentencing should therefore be used as a definition of moral code which the society must observe and adhere to. This therefore means that, at all times, mandatory sentencing should be withheld in the justice system, especially when dealing with the vulnerable, like those over 60 years of age. Finally, there is need to familiarize the society with the laws so as to ensure that they are aware of the consequences. When offenders are in prison, there is need to have them rehabilitated for at the end they will return to the same society. Additionally, the community need to be sensitized on the laws and expectations in case there is such a crime. There is actually no need to have offenders who have committed identical crimes punished in differing ways. Equality is very crucial. Works Cited Warner, K., Davis, J., Waler, M., Bradfield. R.& Vermey, R. (2011). ‘Public Judgement on Sentencing: Final results of the Tasmanian Jury Study’ . Trends & Issues in Crime and Criminal Justice. , 3. Bagaric, M. (2000). ‘Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?’ . Criminal Law Journal,24 (21) , 22. Butterworths. (1997). Australian Legal Dictionary. Sydney: Butterworths. Colvin, E. (2003). Sentencing Principles in the High Court and the Penalties and Sentences Act. Queensland University of Technology Law and Justice Journal , 3 , 1-18. Gray, Anthony, and Elmore, Gerard, . (2012). ‘The Constitutionality of Minimum Mandatory Sentencing Regimes’ 22. Journal of judicial Administration , 37-45. John L Anderson. (2006). ‘“Indefinite, Inhumane, Inequitable” The Principle of Equal Application of the Law and the Natural Life Sentence for Murder A Reform Agenda. University of New South Wales Law Journal , 148- 155. K Warner, J Davis, M Waler, R Bradfield & R Vermey, . (2011). Public Judgement on Sentencing: Final results of the Tasmanian Jury Study’ . Trends & Issues in Crime and Criminal Justice , 3. Marin, M. (2003). Standard Non-Parole Sentencing and Guideline Judgments: Where to from here? . New South Wales: Criminal Law Review Division. McGuire, J. (2005). ‘Deterrence in Sentencing: Handle with Care’, 79 . 79 Australian Law Journal , 448-449. Morgan, N. (2002). Going Overboard? Debates and Developments in Mandatory Sentencing, June 2000 to June 2002. Criminal Law Journal , 26 , 293-311. Morris J., F. (2008). ‘An Eye for an Eye: Proportionality as a Moral Principle of Punishment’. Oxford Journal of Legal Studies , 57-77. Queensland Law Society. (2014). Mandatory Sentencing Laws Policy Position, 4, p. 2. Rob Johnson and Christian Porter, ‘Assaults against Police Plummet under Mandatory Sentencing Laws.’ (Media Statement, 22 September 2010), at http://www.mediastatements.wa.gov.au/pages/StatementDetails.aspx?listName=StatementsBarnett&StatId=311 Smit, D. v. (2006). ‘Life Imprisonment: Recent Issues in National and International Law’ 29 . International Journal of Law and Psychiatry , 405-411. Stemen, D. (2007). ‘Reconsidering Incarceration: New Directions for Reducing Crime’. Vera Institute of Justice, , 1. Read More