The Use of Mandatory Sentencing in Western Australia - Assignment Example

The Use of Mandatory Sentencing in Western Australia Name Institution Date Executive Summary Mandatory sentencing laws in Western Australia were introduced with the aim of reducing the number of repeat offenders within the society. Its laws received criticism from various council groups within the state since it went against the norms of criminal law. The legislation of mandatory sentencing laws touch on the subjects of Criminal Acts, Misuse of Drugs Act, Traffic Acts and Criminal Organizations Control Act which are categorized with regard to the offences committed and the minimum imprisonment durations. In addition, it is deemed beneficial for it helps keep the crime rates at a low. The benefits include: prevention of community from harm through incapacitation and promotes effective deterrence to name a few. On the other hand, it has been highly criticized since it undermines the rule of law and it is inconsistent with Australia’s obligations. Table of Contents Table of Contents 3 2.0 Introduction of Mandatory Sentencing in Western Australia 4 3.0 Mandatory Sentencing Legislation in Western Australia 4 4.0 Benefits of Mandatory Sentencing 5 4.1 Preventing Harm to Community through Incapacitation 5 4.2 Provides Effective Deterrence 6 4.3 Denunciates the Criminal Conduct 6 4.4 Provides Consistency 6 5.0 Criticism of Mandatory Sentencing 6 5.1 Undermines the Rule of Law 6 5.2 Inconsistent with Australia’s International Obligation 7 5.3 Economic Cost 7 5.4 Disproportionate Social Costs 7 6.0 Conclusion 7 7.0 References 9 1.0 Introduction Mandatory sentencing law is considered a criminal law where a maximum penalty is set for the offence and does not include a minimum penalty for the offender. Therefore, the judges are obliged to hold substantial discretion upon a suitable penalty for each case (Mackenzie et al., 2012). This is done with regard to sentencing laws where the various purposes of sentencing together with the forms of penalties available as well as the factors to be considered such as mitigating and aggravating are outlined. In addition, the laws may either be stern in their application or they may permit the judges to exempt themselves from the minimum or penalty in various instances (Bagaric, 2000). This report will discuss the introduction of mandatory laws to Western Australia. It will also describe the various offences where mandatory sentencing is applied detailing out its benefits and criticisms. 2.0 Introduction of Mandatory Sentencing in Western Australia Mandatory sentencing laws were first practiced in Western Australia in the year 1996 via the amendment of the criminal code. The laws in Western Australia that were in existence provided that a convicted felon who has been charged with cases of burglary, adult as well as juvenile for the third time ought to be sentenced to a minimum of about 12 months either imprisonment of even detention (Warner et al., 2011). This was regardless of the offence. This provision went in line with prior provisions which had similar aims and moreover, described by Coultan and Box (2014) as a failure on every criminology principle on which they were assessed. Furthermore, the mandatory sentencing laws in Western Australia have been highly disapproved by various groups particularly the Aboriginal Justice Council in Western Australia. 3.0 Mandatory Sentencing Legislation in Western Australia Mandatory sentencing legislation entails various criminal codes and acts related to the type of offence committed by an offender. The first legislation involves Criminal Code s401 (4) which addresses third strike home burglary. For an adult offender, the minimum penalty given is of 12 months whereas for a juvenile offender, the minimum penalty awarded is either a conditional release or 12 months imprisonment (Criminal Code Amendment Act, 2009). The second legislation is Criminal Code s297 which involves grievous bodily harm particularly to a public officer. Minimum adult penalty is 12 months and 3 months for juvenile offender. Criminal Code s318 involves an assault to a public officer which calls for a 9 month imprisonment for both adult and juvenile offender. In addition, the mandatory sentencing legislation has the s6 Misuse of Drugs Act. This entails the selling of drugs to underage which calls for a suspension for first time offences and 6 months for subsequent offences. Legislation ss6 & 7 Misuse of Drugs Act involves the manufacture or even cultivate resulting to bodily harm to child (Criminal Code Amendment Act, 2009). This gets a minimum penalty of 12 month imprisonment. On the other hand, legislation ss6 & 7 Misuse of Drugs Act of manufacture of cultivate endangering child, the offence gets a suspension for first time offence and a subsequent 6 months for repeat offence. In addition, the legislation Criminal Organizations Control Act which was enacted on November of 2013, Part 10, Schedule 1A, involves the scheduled offences committed with connection to any criminal organization including being armed, threats, justice related killings, firearm association to name a few (Criminal Code Amendment Act, 2009). This legislation act is awarded a minimum of 2 year imprisonment and if the penalty is life, the offence receives a minimum of 15 years. 4.0 Benefits of Mandatory Sentencing Mandatory sentencing has been argued that it minimizes the number of criminal activities through preventing harm to the community through incapacitation and it provides effective deterrence (Warner et al., 2011). In addition, it helps denunciate the various criminal conduct and helps maintain consistency of judgment. They are as follows: 4.1 Preventing Harm to Community through Incapacitation Mandatory sentencing aims at minimizing the number of crimes through preventing the offenders from committing the crime (Ogloff and Davis, 2005). It utilizes one of the simplest ways in preventing any offence by incarcerating the offenders. This is logical since the offender is barred off from causing more harm to the community. Incapacitation has an immediate short-term effect since it prevents the criminal offenders from causing trouble to the community (Warner et al., 2011). 4.2 Provides Effective Deterrence Mandatory sentencing also purpose to reduce the rate of offences by deterring repeat offenders once they have been set free. Deterrence is based on the assumptions that every individual will desist from committing an offence with the fear of the consequences that follows (Murray and Thomson, 2010). Therefore, it prevents offenders from involving in criminal activities thus reducing the rate of crimes and encouraging social stability. 4.3 Denunciates the Criminal Conduct Advocates argue that mandatory sentencing denunciates various criminal acts. It is based on the theory that sentencing an offender can send a very strong message to the community in general (Baker, 2009). 4.4 Provides Consistency Mandatory sentencing provides consistency by ensuring that fairness is conducted to every offence committed. This is by treating like offenders alike. It is based on the assumption that discretion is the enemy of consistency (Param, 2001). 5.0 Criticism of Mandatory Sentencing Mandatory sentencing laws has received numerous criticism both from the Aboriginal Justice Council in Western Australia and the Law Council of Australia (Gary et al., 2012). These criticisms address issues such as: mandatory sentencing undermines the rule of law; it is inconsistent with international obligation of Australia; high economic costs and offers a disproportionate social cost (Christopher Brown vs Jamaica, 2000). 5.1 Undermines the Rule of Law The Law Council of Australia argue that mandatory sentencing undermines the key rules supporting the independence of both the judiciary as well as the rule of law (Gary et al., 2012). In addition, mandatory sentencing contradicts the well-established rule of criminal law by imposing prescribed penalty to the offenders. 5.2 Inconsistent with Australia’s International Obligation Mandatory sentencing brings about concerns with regard to human rights which is under the human rights obligation of Australia (Ritchie, 2011). It is criticized for it may breach Article 9 of the ICCPR as well as the arbitrary detention since the sentence may lead to disproportionate sentences (Mackenzie et al., 2012). Furthermore, it also may breach Article 9 of the ICCPR regarding detention since its arbitrariness involves injustice as well as lack of predictability. 5.3 Economic Cost The Law Council criticizes mandatory sentencing since it may cause substantial economic costs to the community in general (Bagaric, 2000). This is because it costs about $300 a day keep an offender in jail. For instance, between the years 2011 and 2012, the state used almost $2.4 billion in order to keep the offenders locked up. The cost has increased significantly by almost 4.8 per cent the following year (Bagaric, 2000). This has been on the expense of the general economy 5.4 Disproportionate Social Costs There are numerous concerns about mandatory sentencing laws since it causes a disproportionate impact on indigenous Australians, juveniles and mentally ill persons. These laws can have hostile effects on such groups (Helland and Tabarrok, 2007). They can have adverse impacts on impoverished individuals rather than the organizers of a certain act. 6.0 Conclusion To sum up, mandatory sentencing laws were first practiced in Western Australia in 1996 through the amendment of the criminal code. The offenders were to be sentenced to a minimum of 12 months regardless of their offences. This spark quite a number of criticisms from the Law Council of Australia and particularly from the Aboriginal Justice Council in Western Australia. This was primarily due to the privileges it stripped the judges off their ability to make a judgment of a repeat offender, rather it allows the parliament to decide who is considered an offender. The legislation of mandatory sentencing comprises of Misuse of Drugs Act, Criminal Codes involving home burglary and bodily harm and Criminal Organizations Control Act to name a few. These legislations accompany the various offences together with the minimum imprisonment accorded to either an adult or a juvenile offender. On the other hand, the mandatory sentencing laws have a number of benefits namely: prevents harm to community through incapacitation; provides effective deterrence; denunciates the various criminal conducts and provides consistence. Then again, it derives a number of criticisms such as: it undermines the rule of law; it is inconsistent with Australia’s international obligation; it leads to inappropriate economic costs and it results in disproportionate social costs. 7.0 References Bagaric, M. (2000). ‘Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?’, 24 Criminal Law Journal, 21, 22. Baker, D J. (2009). "Punishment Without A Crime: Is Preventive Detention Reconcilable with Justice?", 34 Australian Journal of Legal Philosophy, p. 120. Christopher Brown v Jamaica, (2000). Communication No. 775/1997, UN GAOR, 65th Sess., UN Doc CCPR/C/65/D/775/1997. Coultan M. and Box D. (2014). Grog violence sentencing to put 1000 more in prison. The Australian. Retrieved from http://www.theaustralian.com.au/national-affairs/state-politics/grogviolence-sentencing-to-put-1000-more-in-prison/story-e6frgczx-1226807172636 Criminal Code Amendment Act 2009 (WA). In 2013, this was extended to youth custodial officers: see Criminal Code Amendment Act (No. 2) 2013 (WA) Gray, Anthony, and Elmore, Gerard, (2012). “The Constitutionality of Minimum Mandatory Sentencing Regimes”. Journal of Judicial Administration. 22(1), 37-47. Helland E. and Tabarrok A., (2007). ‘Does Three Strikes Deter? A Non-Parametric Estimation.’ Journal of Human Resources, 42(2), 309-330. Mackenzie, G. et al, (2012). “Sentencing and public confidence: Results from a national Australian survey on public opinions towards sentencing”. Australian & New Zealand Journal of Criminology, 45(1), 46-65. Murray, J. and Thomson, E. (2010). "Clinical judgment in violence risk assessment". Europe's Journal of Psychology, 6(1), 128-149. http://dx.doi.org/10.5964/ejop.v6i1.175 Ogloff, J. and Davis, M R. (2005). Assessing Risk for Violence in the Australian Context: Issues in Crime and the Criminal Justice System. LexisNexis Butterworths, p. 301-338 Param C. D., (2001). ‘Mandatory Sentencing: the individual and Social Costs’, Australian Journal of Human Rights, 7(2), 7-20. Ritchie D., (2011). Does Imprisonment Deter? A Review of the Evidence. Melbourne Sentencing Advisory Council, 1-28. 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, No. 407, February 2011. Read More