Assess the role discretion plays in the sentencing and punishment of offenders. Sentencing and punishment has actively involved the discretion of judges and magistrates in affecting the decision of the sentencing. Discretion involves the power of Judges and magistrates to determine the most appropriate sentence for a case. Allowing judicial officers to decide sentences on a case by case basis and thus permitting them to take into account the various circumstances. Many factors influence the role discretion plays or alternatively doesn’t play in the sentencing and punishment of offenders. This includes statutory guidelines, mandatory sentencing, aggravating and mitigating circumstances and the use of victim impact statements. In terms of Statutory guidelines a number of acts inform the exercise of Judicial discretion. The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in NSW. It sets out the purposes for which a sentence and types of penalties may be imposed, when they can be used and also recommends general guidelines in relation to sentencing.
The Crimes Act 1900 (NSW) prescribes the maximum sentence that may be imposed for various offences. It identifies what might constitute a mitigating or aggravating circumstance. However, it is left, to some degree, to the exercise of judicial discretion to determine the most appropriate sentence, providing it fits within the prescribed statutory guidelines. As well as this Judicial officers can be guided by former judgements in cases with similar facts. The Crimes (Sentencing Procedure) Act allows for the NSW Attorney General to apply guideline judgements, that will set out sentencing guidelines for a particular offence. These guidelines, although limiting the judicial discretion, are used to ensure the right to a fair trial, by limiting the amount cases with similar circumstances can differ in their final sentencing. Ultimately this means that, although judicial discretion is hindered by the various guidelines and acts, it makes the sentencing and punishment as fair and effective as possible by limiting the amount of deviation between similar cases.
The judge or magistrate has discretion as to which purpose of punishment is the most appropriate, given the circumstances of the case, providing balance between the rights of offenders, victims and society. Mandatory sentencing removes discretion, In some circumstances, based on the changing values of society and to deter others from committing crime. This can lead to an inflexible approach to sentencing. Statutory guidelines can be seen to hinder the amount of discretion given to Judicial officers. However, Mandatory sentencing completely removes discretion by setting a minimum or mandatory sentence for a particular offence or type of offender. In this respect, discretion does not have a role in the sentencing and punishment of offenders and is instead left up to an automatic sentence set by parliament. In the case of R v Dean, the offender Roger Dean (2013) was sentenced to life imprisonment under section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), after he pleaded guilty to eleven counts of murder.
This case falls under section 61 of the Crimes Act, which is “Mandatory life sentences for certain offences” and is therefore an example of mandatory sentencing removing discretion. Discretion, therefore plays no role in mandatory sentencing, however it is removed to keep trials fair and consistent, as with statutory guidelines and guideline judgements. Ultimately adding to the effectiveness of the criminal trial process in the sentencing and punishment of offenders. The system of precedent guides the exercise of judicial discretion with reference to previous decisions. In determining the appropriate sentence for an offence, the court must take into account the aggravating and mitigating factors in the case. Aggravating and mitigating factors can inform the exercise of discretion, leading to either harsher or lenient penalties. Aggravating factors are those particular to the offence, the victim or the defendant which may warrant a higher penalty.
Mitigating circumstances differ in the fact that they offer more lenient penalties. Both circumstances have various factors to be considered in relation to the offender and the victim, and in turn give the judge the power of discretion, referring to relevant precedent guides, under section 21 A of the Crimes (Sentencing Procedure) Act 1999 (NSW).This gives the judicial officer the ability to take into account the numerous aspects of the case and in particular, the offence and the accused’s circumstances. the aggravating or mitigating factors in a case, allows for discretion to play a more prominent role in the sentencing and punishment of offenders, allowing for a fair trial.
In NSW, victims of crime are recognised and guaranteed certain rights under the Victim Rights Act 1996 (NSW). The Act contains a Charter of Victim’s Rights which requires, among a number of things, respect for a victim’s dignity, victim’s compensation, protection from the accused, protection of identity and assistance during the criminal process. The Charter also introduces victim impact statements, which is allows the victim an opportunity to participate in the process by letting the court know how the crime has affected them.
The judge has a discretion to hear and to take into account a victim impact statement in determining the sentence. Victim impact statements are only permitted for serious offences and are presented after the offender is found guilty, before the sentence is passed. In the case of McCartney v R (2009) A male found guilty of sexual assault was sentenced to 2 years imprisonment, after the aggravating factors were considered, including the victim impact statement, it was concluded by the judge that the victim’s “life and studies have been totally disrupted by the event and suffered considerable distress.” The victim impact statement in this case influenced the sentence and the judge was able to effectively use his discretion to determine the best sentence for both the offender and the victim, by taking into account both the mitigating and aggravating factors.
Victim impact statements have thus proven an effective method of restoring justice to the victim and the community, by taking into account the impact the crime had on the victim. Discretion in relation to victim impact statements has ultimately had the role of considering the victim in the case and how it has impacted upon their lives, in turn affecting the sentencing and punishment given to offenders. On the whole, discretion can be seen to be relatively effective in the role it plays in the sentencing and punishment of offenders.
Although it does not have a role in mandatory sentencing and is limited by statutory guidelines and guideline judgements in the role it does play within the justice system. It is limited and removed to reduce the amount of deviation in cases with similar circumstances. Aggravating and mitigating factors along with the use of victim impact statements, see an effective use of discretion in the role of the sentencing and punishment of offenders. This is done allowing the judicial officer to consider all the facts in the case, including the impact the crime had on the victim, and determine the most appropriate sentence.
Taken from Sentencing Guidelines Council Guideline Overarching Principles: Seriousness.
The lists below bring together the most important aggravating and mitigating features with potential application to more than one offence or class of offences. They include some factors which are integral features of certain offences; in such cases, the presence of the aggravating factor is already reflected in the penalty for the offence and cannot be used as justification for increasing the sentence further. The lists are not intended to be comprehensive and the factors are not listed in any particular order of priority. If two or more of the factors listed describe the same feature care needs to be taken to avoid “double counting”.
Factors indicating higher culpability:
- offence committed whilst on bail for other offences;
- failure to respond to previous sentences;
- offence was racially or religiously aggravated;
- offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation);
- offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability);
- previous conviction(s), particularly where a pattern of repeat offending is disclosed;
- planning of an offence;
- an intention to commit more serious harm than actually resulted from the offence;
- offenders operating in groups or gangs;
- ‘professional’ offending;
- commission of the offence for financial gain (where this is not inherent in the offence itself);
- high level of profit from the offence;
- an attempt to conceal or dispose of evidence;
- failure to respond to warnings or concerns expressed by others about the offender’s behaviour;
- offence committed whilst on licence;
- offence motivated by hostility towards a minority group, or a member or members of it;
- deliberate targeting of vulnerable victim(s);
- commission of an offence while under the influence of alcohol or drugs;
- use of a weapon to frighten or injure victim;
- deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence;
- abuse of power;
- abuse of a position of trust.
Factors indicating a more than usually serious degree of harm:
- multiple victims;
- an especially serious physical or psychological effect on the victim, even if unintended;
- a sustained assault or repeated assaults on the same victim;
- victim is particularly vulnerable;
- location of the offence (for example, in an isolated place);
- offence is committed against those working in the public sector or providing a service to the public;
- presence of others for example, relatives, especially children or partner of the victim;
- additional degradation of the victim (for example, taking photographs of a victim as part of a sexual offence);
- in property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (for example, where the theft of equipment causes serious disruption to a victim’s life or business).
Factors indicating lower culpability:
- a greater degree of provocation than normally expected;
- mental illness or disability;
- youth or age, where it affects the responsibility of the individual defendant;
- the fact that the offender played only a minor role in the offence.
- genuine remorse;
- admissions to police in interview;
- ready co-operation with authorities.