Crime: T/C: Discretion Flashcards
what does discretion refer to?
the choice to do or not do something
When is discretion exercised in the CJS?
- By person who plans/commits offence
- Witness/victim who chose to report offence
- Crim investigation process
- Criminal trial process
- Sentencing & punishment
What discretion do police have (CIP)?
- deciding where to patrol
- what crimes to target
- What reports to investigate in depth
- what forms of evidence should be gathered
- Whether to lay charges/what charges
- To issue a criminal infringement notice/arrest the offender
- whether to warn/caution/arrest young offender
- whether or not to grant bail (but discretion also used by Judge & magistrate in this process)
Who exercises discretion when deciding whether or not to grant bail?
Police & judges &; magistrates
if an offence has been reported, how could police use discretion?
- What reports to investigate in depth
- what forms of evidence should be gathered
- Whether to lay charges/what charges
- To issue a criminal infringement notice/arrest the offender
- whether to warn/caution/arrest young offender
When is discretion used in the criminal trial process?
by DPP when deciding
how would a magistrate use discretion in a committal hearing?
to establish if prima facie case exists
what would be used when deciding whether a case should be heard summarily or by a jury?
discretion
assuming there was a jury in a trial, during the trial what discretion would the judge use?
deciding if evidence is admissible or not
How do the rules of evidence, the adversary system itself and the system of appeals help to prevent the miscarriage of justice?
by ensuring discretion is not used harmfully. The system of precedent also guides the use of discretion by judges
Who would use discretion during charge negotiation?
the prosecution &a; defence
When is discretion absolutely essential in the CJS?
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
Who exercises discretion when sentencing & deciding punishments?
the magistrate
Who has broader discretion in deciding what punishments & sentences should be given?
the judiciary in selecting type of sentence & length served
What limits judicial discretion?
Statutory & judicial guidelines
What is an act that limits the judge’s discretion?
Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)
Where are statutory guidelines predominately set out by?
the Crimes (Sentencing & Procedures) Act 1999 (NSW)
what act set a mandatory minimum of 8 years in case of death for alcohol related violence?
Crimes & Other Legislation Amendment (Assualt & Intoxication) Act 2014 (NSW)
Following sentencing and punishment, what else relies on discretion?
post sentencing decisions, including
- security classification of offenders
- deciding whether to grant parole (Jill Meagher murder case 2013)
- preventative & continued detention
Following sentencing, what else relies on discretion?
post sentencing decisions, including
- security classification of offenders
- deciding whether to grant parole (Jill Meagher murder case 2013)
- preventative & continued detention
Why does discretion have to be used?
because decisions need to be made & there’s often more than 1 option to choose from.
if 2 people could make the different decisions regarding an outcome does it mean 1 was incorrect?
No. Often there are many options that may have been just as suitable.
In sentencing and punishment how is judicial discretion influenced?
By aggravating &; mitigating factors.
Why is there a need for discretion for the criminal justice process to operate effectively?
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.
In many cases, what is crucial for a just outcome to be achieved?
Discretion
What ensures that discretionary decision making processes are subject to scrutiny and review?
the system of appeals and trial process
What is a massive issue with the use of discretion?
it can be applied differently for different people.
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?
lack of sensitivity by some judges to the effect of rape &; sexual assault and women’s rights.
How does discretion mean laws can be applied by police?
not consistently, and with possible discrimination
what indicates that discriminatory discretion could be used by judges?
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)
What is a concern about increasing police powers?
providing police with more power/greater ability to use discretion could mean that individuals are singled out, greater possibility of abuse
What is mandatory sentencing sometimes based on?
the changing values of society and to deter others from committing crime
what can mandatory sentencing lead to?
an inflexible approach to sentencing
what do aggravating and mitigating sentences, as listed under the Crimes (Sentencing and Procedures) Act 1999 (NSW) do?
influence and inform the use of discretion by judges during sentencing
how does discretion in the trial process impact victims?
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.
what is an external factor that can greatly influence the judge’s discretion
media. Media pressure could make them feel inclined to give a different sentence in order to provide a general/specific deterrence
following a trial, how can discretion be used by either the defence or prosecution?
as to whether to appeal the decision or not, this is influenced by a range of factors eg. cost, accessibility
what are post-sentencing decisions influenced by?
many factors incl, resource efficiency, community safety
In post-sentencing considerations, how is discretion limited?
by the Child Protection (Offenders Registration) Act 2000 (NSW) which places strict limits on discretion to ensure community safety
