Use of Mandatory Sentencing - Assignment Example

Use of mandatory sentencing in Western Australia Name Institution Table of Contents Table of Contents 2 1.0 Introduction 3 2.0 Offences for mandatory sentencing in Western Australia 4 3.0 The benefits of mandatory sentencing 5 3.1 Consistency and retribution in sentencing 5 3.2 Deterrence of crime 6 3.3 Incapacitation of would-be offenders 7 4.0 Discussion of the criticisms of mandatory sentencing 7 4.1 Hidden inconsistencies 7 4.2 Disproportionate social cost 8 5.0 Conclusion 9 6.0 References 9 1.0 Introduction The Sentencing Advisory Council describes mandatory sentence as a fixed penalty that the parliament prescribes for offenders who commit a criminal offence (Hoel & Gelb 2008, p.3). Mandatory sentencing remains a contentious issue, as it continues to create extensive debate and divisions in communities and the government. Mandatory sentencing is widely implemented in Western Australia in many forms such as in form of legislation and, standard non-parole periods, and presumptive minimum sentences. The objective of the mandatory sentencing is to boost consistency in sentencing. It is stated that by making sure that sentences are consistent with the views of the community, the public confidence in law courts is improved (Law Council of Australia, 2014). Despite this belief, it remains unclear whether mandatory sentencing can indeed guarantee appropriate and proportionate sanctions. Essentially, it is the issue of degree, as regards where the bar should be set for a mandatory sanction, which has also made mandatory sentencing a contentious issue. Other commentators have raised issues regarding whether mandatory sentencing should be linked to an offence or offender’s particulars to make it more effective. Indeed, current media reports have indicated an escalating debate among academics, policymakers and the public on the benefits of mandatory sentencing, as well as whether it really reduces crime (ABC News, 2014). In an attempt to close the debate, this paper explains the use of mandatory sentencing in Western Australia. It further describes mandatory sentencing, provides a description of the offences where mandatory sentencing is applied in Western Australia, discusses its benefits, and lastly, criticises it. 2.0 Offences for mandatory sentencing in Western Australia Mandatory sentencing regimes are usually a creation of tough crime programmes that prescribe stringent mandatory minimum sanctions, for certain less severe crimes particularly in Western Australia (Le Plastrier, 2005). Severe sanctions are not associated with mandatory sentencing. For instance, few offences in Western Australia carry a mandatory prison sentence (Mackenzie, 2005). Characteristically, they are offences that have intermediate instead of severe gravity. The Western Australian law also has provisions that introduce offences that range from drink driving to parking illegally (Hoel & Gelb, 2008). In Western Australia, mandatory sentencing is provided for by the Western Australia Criminal Code Amendment Act (No 2) 1996 (WA), which suggests a minimum sentencing for up to 12 months for home burglary offenders who have engaged beforehand into such offences. The sentencing also applied to young offenders, who may be sentenced to juvenile or even rigorous youth supervision order. An additional legislation is the Criminal Code Amendment Act (No. 2) 2013 (WA), which had amendments to the previous legislation by extending to the youth custodial officers in 2013. It stipulates that adults who have been found to commit assaults be sentenced for a minimum of six to 12 months in prison. The law extends to the prison officers, and police officers. The legislation also suggests a sentencing of a minimum of three months for young offenders of ages 16 and above, or even juvenile detention (Law Council of Australia, n.d.). An additional legislation is Criminal Organisations Control Act 2012, which is intended for the adult offenders who have committed some offences at the discretion of a declared criminal organisation, or by associating with the organisation. In such offences, a minimum sentence of 2 years is suggested for a pertinent simple transgression. For the indictable transgressions, the legislation recommends a minimum term of 2 years for a pertinent indictable transgression. The legislation also suggests an indictment when the penalty for a transgression has not consisted of imprisonment, and mentions that a minimum term of 75% of the maximum term be given for an appropriate indictable crime dealt with on indictment when the penalty comprises a certain period of imprisonment instead of life imprisonment, as well as at least a 15 years for a pertinent indictable crime when the penalty consists of life imprisonment (Law Council of Australia, n.d.). 3.0 The benefits of mandatory sentencing 3.1 Consistency and retribution in sentencing Mandatory sentencing ensures consistency and retribution in sentencing. As Hoel and Gelb (2008) show, among the fundamental goals of mandatory sentencing is retribution, which means expressing society’s condemnation of an offender’s act. When the offenders becomes sanctioned through mandatory sanctioning, Hoel and Gelb (2008) further explain that retribution gets to attain certain significant outcomes, including satisfying the public’s disapprobation and serving like an expression of a public reproof of the offender and the offence in question. Subramanian and Delaney (2014) added that retribution encourages the use of a consistent approach to punishing the offenders, as it is firmly rooted in the character of the offence instead of factors, such as community protection. Indeed, basing on the retributive theory, a primary objective of mandatory sentencing is making sure that higher level of consistency in respect to sentencing is attained, between a particular offence and the imposed punishment, as well as between the imposed sanction and the other similar offenders. As argued by Hoel and Gelb (2008), when certain penalties are mandated to the court to apply, a high level of cardinal and ordinal balance is achieved. At the same time, some commentators have argued that the imposed punishment, which is likely to be strict, should take into account the public’s indignation (Le Plastrier, 2005). This can be better achieved by the parliament as the judges may not be willing or have the capacity to adequately impose severe punishments consistently. In this case, discretion would be viewed to be an enemy of consistency, even as inconsistency may imply injustice. 3.2 Deterrence of crime Mandatory sentencing is beneficial, as it deters offenders from engaging in similar crimes. As Hoel and Gelb (2008) argue, another fundamental objective of mandatory sentencing is deterrence, or deterring rational people from engaging in the same kinds of crime. According to Mascharka (2001), deterrence-based punishments, such as those imposed through mandatory sentencing, are by nature consequentialist, or intended to attain an outcome rather than merely punishment per se. Tonry (2008) used a similar perspective to argue that mandatory sentencing tends to provide an additional level of deterrence, as it ensures that the cost of offending offsets the benefits, as regards the severity of the punishment and the likelihood that the sanction would be imposed on a consistent basis in cases where there are successful prosecution. As an indirect effect, the offenders also become rehabilitated the offenders (Andrews & Bonta, 2010). 3.3 Incapacitation of would-be offenders Mandatory sentencing is also beneficial, as it prevent offenders from reoffending through incapacitation while the offenders are in custody. According to the Australian Institute of Criminology (1999), incapacitation, like deterrence, is by nature a consequentialist-sentencing objective. Its purpose is to debilitate impending offenders from engaging in further crime and in the process protecting the society once it eliminates the opportunities for offending. Roche (1999) also discusses that the rationale for the objective is because past offender behaviours continue to be used as possible indicators of the future behaviours of the offender. There is a large body of evidence, as showed by Hoel and Gelb (2008), showing that incapacitation tends to be useful when used carefully, as the offenders who are likely to re-offend become barred from commission of similar offences to the detriment of the more extensive community. 4.0 Discussion of the criticisms of mandatory sentencing 4.1 Hidden inconsistencies Mandatory sentencing only has some hidden inconsistencies. Instead of actually eliminating the arbitrary judicial discretion, it merely transfers the discretion to seemingly less transparent organs of the legal system (Gary, 1993). In such a scenario, its fundamental aim of achieving consistency in sentencing is likely to be destabilized by an unforeseeable substantive inconsistency, leading to disparate sanctions that become imposed on a case-by-case basis (Roche, 1999). Additionally, mandatory sentencing may be affected by systemic pressures like plea-bargaining, which in common law is considered as capable of necessitating some degree of discount or relief in the imposed sanction (Tonry 2011). In particular, a disadvantage of plea-bargaining is its potential to lead to inconsistency in sentencing when left to the discretion of the state. Indeed, at the common law, the right to appeal should not be left under the state. As demonstrated in the case law of Salgar de Montejo v Colombia [1982], it was held by the Human Rights Committee that the right of appeal should not be left ‘to the discretion of the State. For instance, a conviction for one type of crime may invite mandatory sentencing and still lead to conviction for a different case (Bjerk, 2005). Put differently, mandatory minimums only serves to replace prosecutorial discretion with judicial discretion. 4.2 Disproportionate social cost While mandatory sentencing is intended to bring about consistency in sentencing, it actually has disproportionate effects on certain segments of the society. According to Ulmer et al. (2007), the negative effects of mandatory sentencing regimes is more significant to the first-time offenders, in addition to the vulnerable groups, like the young/minor offenders. When it comes to a discretionary sentencing system, the first time offenders are more likely to be given less severe sentences (Cowdery, 2014). It is such discretion that, mandatory sentencing regime takes away from the sentencer. Consequently, cases become arbitrarily classified together in spite of cases where there are compelling sentencing factors that distinguish them in the areas of culpability, and, therefore, suitable sentencing consequence (Starr & Rehavi, 2013). Such a scenario is likely to lead to unjust sentencing consequence, like what happened in Western Australia when a charge of aggravated burglary, which would have covered offences that ranged from a violent home invasion to stealing of a bottle of soft drink from an open window, led all offenders who had been convicted of the same crime to be imprisoned (Hoel & Gelb, 2008). 5.0 Conclusion As established, mandatory sentencing can indeed guarantee appropriate and proportionate sanctions, despite some weaknesses. Mandatory sentencing ensures consistency and retribution in sentencing. It also deters offenders from engaging in similar crimes. Additionally, it prevents offenders from reoffending through incapacitation while the offenders are in custody. However, Mandatory sentencing has some hidden inconsistencies. Instead of actually eliminating the arbitrary judicial discretion, it merely transfers the discretion to seemingly less transparent organs of the legal system. Additionally, while it is intended to bring about consistency in sentencing, it actually has disproportionate effects on certain segments of the society. It is, therefore, recommended that while the Western Australian legislations for mandatory sentencing ensure that offenders are punished for their crimes commensurate with the desire to deter crime, it ensure that those with less serious crimes are given similar level of punishment to those with less serious crimes. Mandatory sentencing should be reformed to ensure that the degree of punishment differs depending on the severity of the crime. 6.0 References Andrews, D. & Bonta, J. (2010). Rehabilitating criminal justice policy and practice. Psychology, Public Policy, and Law, 16(1), 39-55 Australian Institute of Criminology. (1999). No. 138 Mandatory Sentencing. Retrieved: Bjerk, D. (2005). Making the crime fit the penalty: The role of prosecutorial discretion under mandatory minimum sentencing. Journal of Law and Economics, 48(1), 591-625 Cowdery, N. (2014). Mandatory sentencing. Retrieved: Gary T. (1993). Lowenthal, mandatory sentencing laws: Undermining the effectiveness of determinate sentencing reform. California Law Review, 81(1), 62-118 Hoel, A. & Gelb, K. (2008). Sentencing matters: Mandatory sentencing. Sentencing Advisory Council. Retrieved: Law Council of Australia. (2014). The mandatory sentencing debate. Retrieved: Law Council of Australia. (n.d.). Current mandatory sentences laws. Retrieved from: Le Plastrier, B. (2005). Western Australia’s mandatory sentencing laws and australia’s international legal obligations. Dialogue, 3(2), 1-15 Mackenzie, G. (2005). How judges sentence. Annandale: Federation Press Mascharka, C. (2001). Mandatory minimum sentences: Exemplifying the law of unintended consequences. Florida State University Law Review 28(1), 935-975 Merrit, N, Fain, T and Turner, S (2006). ‘Oregon’s get tough sentencing reform: a lesson in justice system adaptation’, Criminology and Public Policy, vol. 5, no. 1, pp. 5–36. Roche, D (1999). Mandatory sentencing, trends and issues in crime and criminal justice No. 138. Canberra: Australian Institute of Criminology Salgar De Montejo v Colombia, Merits, UN Doc CCPR/C/15/D/64/1979, Communication No 64/1979, IHRL 2573 (UNHRC 1982) Starr, S. & Rehavi, M. (2013). "Mandatory sentencing and racial disparity: Assessing the role of prosecutors and the effects of booker." The Yale Law Journal, 123(2), 3-79 Subramanian, R. & Delaney, R. (2014). Playbook for change? states reconsider mandatory sentences. Retrieved from:  Tonry, M. (2008). Learning from the Limitations of Deterrence Research. Crime and Justice, 37(1), 279-311 Tonry, M. (2011). Less imprisonment is no doubt a good thing More policing is not. Criminology & Public Policy, 10(1), 137-151 Read More