Discuss the factors that affect sentencing decisions in the criminal justice system Flashcards
Thesis Statement
There are a multitude of factors, many influenced by judicial discretion, that affect sentencing decisions in the criminal justice system. Some, such as statutory and judicial guidelines, are external influences. However, the importance of the majority of factors - purpose of punishment, surrounding circumstances and the role of the victim - is determined by the judge. A highly effective example of factors affecting sentencing decisions can be seen in Justice Campbell’s sentencing of Kieran Loveridge in 2013.
Statutory & Judicial Guidelines Topic Sentence
Statutory and judicial guidelines seek to establish consistency in sentencing, which is imperative for equality. However, this consistency is balanced against judicial discretion.
Statutory & Judicial Guidelines Points
- The sentence that a judge can impose is limited by both statutory law and judicial precedent
- Parliament determines the maximum penalty for each offence - in NSW, this is listed in the Crimes (Sentencing Procedure Act) 1999
- Judicial discretion applies even in statute - the Act states that a court may not impose a prison sentence unless the judicial officer judges no other penalty appropriate
- Sentencing is also guided by precedent in cases with similar facts
- This precedent can be binding and must be followed (if the decision comes from a higher court) or persuasive in sentencing decisions (if the decision comes from the same court)
- Some offences carry mandatory minimum sentences, limiting judicial discretion
- By law, offenders are also entitled to a sentence reduction for pleading guilty
Justice Campbell Quotes on Guidelines
“For the manslaughter of Thomas Kelly, the maximum penalty is 25 years imprisonment”
“It is obvious that for the manslaughter of Thomas Kelly no penalty other than imprisonment is appropriate”
“I have decided that the appropriate discount for each offence is 25 percent of the sentence which would otherwise have been passed”
(On Precedent) “I bear in mind that what is required is consistency of principle, not numerical equivalence”
The Purposes of Punishment Topic Sentence
The goal of punishment should be to balance the rights of victims, offenders and society
The Purposes of Punishment
Deterrence: an attempt to discourage either an individual or the wider community from committing an offence, usually resulting in a higher sentence
- “Other young people need to be able to walk our streets in safety… calls for denunciation of his conduct…. and the deterrence of others who may put themselves in the same position”
Retribution: punishment considered to be morally right or deserved because of the nature of the crime, usually results in higher sentences
- “An offence of this type calls for… the exaction of retribution on behalf of the community”
- “The offender must be adequately punished for his offending”
Rehabilitation: sentencing designed to reform the offender
- “His remorse augurs well for his prospects of rehabilitation and reform”
- “The total effective sentence should not be so large as to… stifle his chances of rehabilitation”
Incapacitation: sentencing designed to protect the community from the offender
- “I would add that in my judgement the offender is very unlikely to re-offend”
Surrounding Circumstances Topic Sentence & Explanation
Alongside the consistency of punishment, the sentencing process must also consider individual factors unique to the crime and offender
Part 3 of the Crimes (Sentencing Procedure) Act 1999 sets out individual factors that a judge can take into account when sentencing an offender
- “I find that the sentencing of the offender requires the consideration of… special circumstances”
Aggravating Factors
Factors that somehow make the offence more serious and can lead to an increased sentence
Offence: “The fact that a series of crimes were committed demonstrates a pattern of disregard for the law that elevates the seriousness of the individual instances of offending”
Victim: (On Thomas Kelly) “He had no reason to be on the lookout for trouble. He was entirely unsuspecting of any danger”
Offender: “That the offender was at conditional liberty at the time of these offences is an aggravating factor of some significance”
Mitigating Factors
Factors that make the offence less severe and can lead to a reduced sentence
Character: “I would infer that he is regarded as a good natured person socially”
Age: “The courts have an inclination to leniency in the case of a young offender”
Social Factors: “Both parents are of Aboriginal heritage… I have borne in mind the offender’s relative social disadvantage and the difficulties of his upbringing”
Remorse: “I am persuaded on the balance of probabilities that the remorse the offender has shown is genuine… he has well and truly learnt his lesson”
Role of the Victim Topic Sentence
The sentencing process attempts to consider the rights of both victims and offenders, but the extent to which this occurs is limited by discretion
Role of the Victim Points
The victims of crime can impact sentencing by providing a victim impact statement
Section 26 of the Crimes (Sentencing Procedure) Act 1999 allows the victim an opportunity to participate in the process by letting the court know how the crime has affected them
They are only permitted for serious offences involving violence and at the judge’s discretion
Victim impact statements are controversial, as some critics argue that (in the case of murder or manslaughter) sentences could be impacted depending on how much a victim was loved
Reform to the laws surrounding these statements was made following the Thomas Kelly case
Justice Campbell on Victim Impact Statements
“I need to bear in mind that the punishment for homicide does not vary according to the personal qualities and characteristics of the victim”
“I remain very mindful of the grief and anguish suffered by the victim’s family… but I am not entitled to treat that consideration as a circumstance aggravating the offence”
“Serious crimes are committed against the community at large, and it is the community which is entitled to seek retribution”
“Whether a victim’s family seeks leniency or vengeance, I am not entitled to take their attitude as to the proper sentence into account as a fact, matter or circumstance informing the appropriate sentence”
