Statutory and judicial guidelines inform the exercise of judicable discretion in the area of sentencing. These guidelines aim to provide greater uniformity in sentencing matters and enhance the integrity of the process. Judicial guidelines are judgements from superior courts that aim to structure discretion, this is shown in the case R v Jurisic (1998), this case was used by the Criminal Court of Appeals to set guidelines that any non-custodial sentence for culpable driving should be exceptional.
Judges are bound to any relevant legislation which impacts upon the sentencing process such as: The Crimes Act 1900 (NSW) this prescribes the maximum sentence that may be imposed for various offences. The Crimes (Sentencing Procedure) Act 1999 (NSW) this prescribes general guidelines in relation to sentencing. For example it identifies what might constitute a mitigating or aggravating circumstance. However, it is left to the exercise of judicial discretion as to how much weight should be given to such circumstances.
Mandatory sentencing takes away the exercise of judicial discretion. The court has no choice but to impose the legislated sentence. Amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW), have prescribed minimum non-parole periods for specific offences, such as ten years for aggravated sexual assault. The provision of statutory and judicial guidelines means that limits are placed on a judge’s discretion when sentencing, and this ensures sentencing consistency.
However, some people feel that judges still have too much discretion when sentencing, and that some sentences are too lenient. Link Under Section 3A of Crimes (Sentencing Procedure) Act 1999 (NSW) the punishment a court imposes upon an accused is advised by differing punishment objectives of retribution, incapacitation, rehabilitation and deterrence. Under Section 5, custodial sentences should be seen as a ‘last resort’. In deciding an appropriate penalty, the judiciary must demonstrate discretion.
In R v Wood (2008), The Criminal Justice System operated effectively in the sense that Gordon Wood would serve the consequences of his actions through the denial of his freedom, something that he in turn took away from Caroline Byrne when he committed her murder. However, it can be argued that Wood’s sentence of 17 years, 13 years non-parole, is an unsubstantial period of time to serve for the act of murder as it is largely recognised as one of the most severe indictable offences for an individual to commit. Moral and ethical differences are sources of conflict within the criminal justice system..
Victims of crime sometimes feel that sentences are too lenient, even though the sentencing judge has taken into account mitigating and aggravating circumstances when determining a sentence. Link Alternate sentencing options are non-traditional methods that aim to deter and rehabilitate offenders by addressing the causes of criminal behaviour. These diversionary programs can include circle sentencing, youth justice conferencing and MERIT program. Alternate penalties to incarceration aim to educate and reform the attitudes and behaviours of the individual to reduce chances of recidivism.
Alternate sentencing is often based on the principle of restorative justice. The Magistrate’s Early Referral into Treatment Program (MERIT) allows the magistrate to adjourn a case, while the offender undertakes drug and alcohol rehabilitation. The program was developed in response to recommendations from the NSW Drug Summit (NSW Government 1999). The SMH 2010 media article ‘ Merit Program Being Expanded’ shows the successfulness of drug rehabilitation. The Young Offenders Act 1997 (NSW) introduced youth justice conferencing.
The aim of such conferences is to come up with an agreement, which may include an apology for the victim, reparation made to the victim, drug or alcohol rehabilitation, or anything else considered appropriate. A report entitled ‘Reoffending among young people cautioned by police or who participated in a youth justice conference’ NSW Bureau of Statistics revealed the introduction of youth justice conferences for young people have led to a significant drop in the number of young offenders appearing before the Children’s Court.
The number has clearly halved dropping from 16 113 in 1997, to 8428 in 2005. While youth justice conferencing has reduced the rates of recidivism, recidivism rates are still high. Youth justice conferencing does little to address the causes of youth crime. Alternate sentencing promotes rebuilding of relationships between the victim and offender and their reintegration into society. Link The Charter of Victims Rights 1996 outlines the rights of victims during the trial and sentencing process.
It was introduced following lobbying by Homicide Victims Support Group, this achieved justice for victims. It has now been legislated and is included in Victim’s Rights Act 1996 (NSW). The victim or a member of the victim’s family explaining the harm they have suffered may present a victim impact statement to the court, this is outlined under Section 3A (g) Crimes (Sentencing Procedure) Act 1999. The Judge uses their discretion as to whether or not to consider the evidence presented in the victim’s impact statement.
It is arguable that victim’s impact statements add further complexity to the sentencing process and may result in the court giving to much weight to views of the victim. The balance between the rights of victims and the rights of the accused have swung more in favour of the victim in recent years, with the introduction of measure such as the victims impact statement. The rights of the accused to a fair trial and a just punishment need to be ensured. Giving to much regard to victims may infringe upon the rights of the accused and of offenders. Link