To what extent does law reform in the criminal justice system reflect the moral and ethical standards of society? Flashcards
Thesis Statement
Law reform of the criminal justice system often expands particular moral and ethical standards at the expense of others. The moral and ethical standards of society are particularly difficult to gauge, as Australia is a diverse community full of varying opinions. However, key general moral and ethical standards include the right of the accused to a fair trial, the right of victims to compensation and the right of society to safety. In recent years, law reform in the areas of mandatory minimum sentencing, victim impact statements and majority verdicts have tended to reflect moral obligations to victims and society over those ethical obligations to the accused and offenders.
Mandatory Sentences Topic Sentence
Law reform in the area of mandatory sentencing reflects the perceived public and media desire for severe punishment for certain offences, but fails to consider the moral obligations to offenders.
Mandatory Sentences Points
Mandatory sentencing is an automatic sentence set by Parliament that must be imposed by the judicial officer for particular offences
It removes judicial discretion by mandating a sentence regardless of circumstance
Mandatory minimum sentences have been introduced in NSW as a response to public outcry following a number of high profile cases
In 2011, the NSW government introduced section 19b of the Crimes Act 1900, creating a mandatory life sentence for killing a police officer while they are exercising their duties
In 2014, following the sentencing of Kieran Loveridge, NSW introduced an amendment to section 25a of the Crimes Act 1900 creating eight-year minimum sentence for one-punch killers under the influence of alcohol
Mandatory Sentences Positives
Supporters of mandatory minimum sentences argue that they help to protect the community
In introducing the one-punch laws in 2014, NSW Premier Barry O’Farrell stated “The fact is, it’s not acceptable for people to go out, get intoxicated, start a fight, throw a punch – whether it’s a coward’s punch or another punch – and think they’ll get away with it.”
He argued that “When it comes to keeping [people] safe and alive there is no price you can put on that.”
Mr O’Farrell also claimed that deterrence was the motive behind the mandatory sentences for killing police officers “ensuring that there is the strongest possible message”
Protecting police officers was a major media issue at the time, with former Police Commissioner Andrew Scipone stating “there is nothing more despicable than killing a police officer when they are in the line of duty”
Mandatory Sentences Negatives
However, the ethical issues of mandatory sentences have been challenged by some critics
In response to the one-punch laws, NSW Bar Association President Phillip Boulten stated that by removing judicial discretion, mandatory sentences “result in penalties that are often disproportionately harsh”
He also stated that it “has the ability to act unfairly on vulnerable and disadvantaged groups”
Greens MP David Shoebridge argued that mandatory sentences for killers of police officers was contrary to principles of equality in the law, stating “there is no reason to value the life of a police officer above other people”
Former DPP head Nicholas Cowdrey claimed the law “makes the doing of justice… impossible”
Victim Impact Statements Topic Sentence
Law reform regarding victim impact statements has been a relatively recent development reflecting community and media pressure, but without just consideration to the moral ideals of a fair trial and equal justice systems.
VIS Points
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
Reform was made to the role of victim impact statements in sentencing following controversy about their lack of importance in the R v Loveridge case
The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) 2014 allowed for “a victim impact statement given by a family victim… to be considered and taken into account by a court in connection with the determination of the punishment”
VIS Positives
Supporters argued that the new laws reflected a moral obligation to provide victims with an opportunity to express themselves in the criminal trial process
Some also argue that it creates equality within the sentencing process - if the offender’s personal circumstances are able to mitigate their sentence, the personal circumstances of the victim should also be considered
VIS Negatives
However, critics claim that the emotive nature of victim impact statements remove impartiality - a key principle of our legal system - from the sentencing process
Other claim it leads to courts handing down different punishments according to the level that the victim was loved by their family, removing the principles of the equal value of all human life
Majority Verdicts Topic Sentence
Reform on the issue of majority verdicts failed to reflect the moral and ethical values of society, as it sacrificed the processes of a fair trial for convenience and the appearance of justice.
Majority Verdicts Points
In 2006, NSW Parliament amended the Jury Act 1977 to the Jury Amendment (Verdicts) Act 2006
This act allowed majority verdicts (11 jurors instead of unanimous) where reasonable time for deliberation had passed and the court is satisfied a unanimous verdict would not be reached
This act was passed despite the NSW Law Reform Commission arguing against it, as it was found that most hung juries were split 7-5 or 8-4, and would not apply under the act
Majority Verdicts Positives
Supporters argued that the law reform protected victims from the process of a lengthy and possibly traumatic retrial
Former NSW Director of Public Prosecutions, Nicholas Cowdrey, stated that the reform would result in “rather significant savings… in terms of the anguish and distress caused to victims of crime and witnesses when they have to come back and testify again”
Justice John Dunford also claimed that majority verdicts serve to uphold justice, especially in cases “where the jury is hamstrung by a perverse, disinterested or unreasonable or simply incompetent juror”
Majority Verdicts Negatives
However, the jury reform significantly impacts the right of the accused to a fair trial
Defence barrister Felicity Hampbell argued that “the very nature of the criminal process is that a jury has to be satisfied beyond reasonable doubt of the guilt of an accused person before they can convict them. Now, if one juror has a doubt, then by definition there has to be a doubt about the result”
Law Society of NSW spokesperson Phillip Gibson stated “At the start of a trial, each juror is equal. They’ve got one vote. To then suggest that by the end of the trial, simply because you don’t agree with the rest of them, that you’re a rogue or a dissenter, really goes against that notion of equality within the jury.”
A Sydney Morning Herald Opinion piece stated that the law change “constitutes a capitulation to political and media pressure rather than a considered response to the issues”
