Crime: T/C: Discretion

Question 1

what does discretion refer to?

Answer 1

the choice to do or not do something

Question 2

When is discretion exercised in the CJS?

Answer 2

1. By person who plans/commits offence
2. Witness/victim who chose to report offence
3. Crim investigation process
4. Criminal trial process
5. Sentencing & punishment

Question 3

What discretion do police have (CIP)?

Answer 3

1. deciding where to patrol
2. what crimes to target
3. What reports to investigate in depth
4. what forms of evidence should be gathered
5. Whether to lay charges/what charges
6. To issue a criminal infringement notice/arrest the offender
7. whether to warn/caution/arrest young offender
8. whether or not to grant bail (but discretion also used by Judge & magistrate in this process)

Question 4

Who exercises discretion when deciding whether or not to grant bail?

Answer 4

Police & judges &; magistrates

Question 5

if an offence has been reported, how could police use discretion?

Answer 5

3. What reports to investigate in depth
4. what forms of evidence should be gathered
5. Whether to lay charges/what charges
6. To issue a criminal infringement notice/arrest the offender
7. whether to warn/caution/arrest young offender

Question 6

When is discretion used in the criminal trial process?

Answer 6

by DPP when deciding

Question 7

how would a magistrate use discretion in a committal hearing?

Answer 7

to establish if prima facie case exists

Question 8

what would be used when deciding whether a case should be heard summarily or by a jury?

Answer 8

discretion

Question 9

assuming there was a jury in a trial, during the trial what discretion would the judge use?

Answer 9

deciding if evidence is admissible or not

Question 10

How do the rules of evidence, the adversary system itself and the system of appeals help to prevent the miscarriage of justice?

Answer 10

by ensuring discretion is not used harmfully. The system of precedent also guides the use of discretion by judges

Question 11

Who would use discretion during charge negotiation?

Answer 11

the prosecution &a; defence

Question 12

When is discretion absolutely essential in the CJS?

Answer 12

in sentencing &; punishment, judges importantly have the scope to determine the best sentence on a case by case basis and can determine most appropriate punishment through discretion to help balance the rights of offenders, victims and society

Question 13

Who exercises discretion when sentencing & deciding punishments?

Answer 13

the magistrate

Question 14

Who has broader discretion in deciding what punishments & sentences should be given?

Answer 14

the judiciary in selecting type of sentence & length served

Question 15

What limits judicial discretion?

Answer 15

Statutory & judicial guidelines

Question 16

What is an act that limits the judge’s discretion?

Answer 16

Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)

Question 17

Where are statutory guidelines predominately set out by?

Answer 17

the Crimes (Sentencing & Procedures) Act 1999 (NSW)

Question 18

what act set a mandatory minimum of 8 years in case of death for alcohol related violence?

Answer 18

Crimes & Other Legislation Amendment (Assualt & Intoxication) Act 2014 (NSW)

Question 19

Following sentencing and punishment, what else relies on discretion?

Answer 19

post sentencing decisions, including

• security classification of offenders
• deciding whether to grant parole (Jill Meagher murder case 2013)
• preventative & continued detention

Question 20

Following sentencing, what else relies on discretion?

Answer 20

post sentencing decisions, including

• security classification of offenders
• deciding whether to grant parole (Jill Meagher murder case 2013)
• preventative & continued detention

Question 21

Why does discretion have to be used?

Answer 21

because decisions need to be made & there’s often more than 1 option to choose from.

Question 22

if 2 people could make the different decisions regarding an outcome does it mean 1 was incorrect?

Answer 22

No. Often there are many options that may have been just as suitable.

Question 23

In sentencing and punishment how is judicial discretion influenced?

Answer 23

By aggravating &; mitigating factors.

Question 24

Why is there a need for discretion for the criminal justice process to operate effectively?

Answer 24

Discretion, when properly used allows individual circumstances to be considered. No 2 cases are the same & exercising discretion means that the differences between cases even if similar can be taken into account. this creates a more efficient process that will achieve a better, more balanced and just process for those involved.

Question 25

In many cases, what is crucial for a just outcome to be achieved?

Answer 25

Discretion

Question 26

What ensures that discretionary decision making processes are subject to scrutiny and review?

Answer 26

the system of appeals and trial process

Question 27

What is a massive issue with the use of discretion?

Answer 27

it can be applied differently for different people.

Question 28

What did the Case of Robert Hall 2017 (District Court) Convicted of rape that happened almost 20yrs earlier, given 5yr sentence & 1 yr non-parole highlight?

Answer 28

lack of sensitivity by some judges to the effect of rape &; sexual assault and women’s rights.

Question 29

How does discretion mean laws can be applied by police?

Answer 29

not consistently, and with possible discrimination

Question 30

what indicates that discriminatory discretion could be used by judges?

Answer 30

the overrepresentation of ATSI peoples in prison and an increase in imprisonment rates despite measures taken following the ‘Royal Commission into Aboriginal Deaths in Custody’ (1991)

Question 31

What is a concern about increasing police powers?

Answer 31

providing police with more power/greater ability to use discretion could mean that individuals are singled out, greater possibility of abuse

Question 32

What is mandatory sentencing sometimes based on?

Answer 32

the changing values of society and to deter others from committing crime

Question 33

what can mandatory sentencing lead to?

Answer 33

an inflexible approach to sentencing

Question 34

what do aggravating and mitigating sentences, as listed under the Crimes (Sentencing and Procedures) Act 1999 (NSW) do?

Answer 34

influence and inform the use of discretion by judges during sentencing

Question 35

how does discretion in the trial process impact victims?

Answer 35

judges have discretion as to whether to consider V.I.S, but there are also concerns that judge may be influenced too much by this, as statements rae very biased.

Question 36

what is an external factor that can greatly influence the judge’s discretion

Answer 36

media. Media pressure could make them feel inclined to give a different sentence in order to provide a general/specific deterrence

Question 37

following a trial, how can discretion be used by either the defence or prosecution?

Answer 37

as to whether to appeal the decision or not, this is influenced by a range of factors eg. cost, accessibility

Question 38

what are post-sentencing decisions influenced by?

Answer 38

many factors incl, resource efficiency, community safety

Question 39

In post-sentencing considerations, how is discretion limited?

Answer 39

by the Child Protection (Offenders Registration) Act 2000 (NSW) which places strict limits on discretion to ensure community safety