Why Is Australia's Nine Sentencing
Australia has nine sentencing jurisdictions with each jurisdiction possessing its own criminal justice system. Federal, state and territory criminal legislation generally specify offences with a prescribed maximum penalty which allows a court to determine an appropriate punishment in the particular circumstances of that case. In recent years, the Australian Parliament has increased proclaimed power over sentencing, setting a fixed or consistent penalty for committing a certain offence. This upsurge suggests that there is a public desire for tougher sentencing laws and dissatisfaction in the community with the traditional sentencing system where courts have had a broad discretion to punish offenders.
The results from a national Australian survey on public opinions towards sentencing shows that the majority of respondents expressed high levels of dissatisfaction and were displeased with sentences that are imposed by the courts. These views can be exhibited by the media and their portrayal. An example of this is that newspapers often publish letters to the editor and opinion articles criticising judges for lenient sentences. In 2012, BOCSAR published the results of a public opinion survey. The results suggested that the majority of people, 59%, thought that sentencing was either a little too lenient or much too lenient. …show more content…
Public pressure has previously persuaded amendments to acts across a number of jurisdictions to lesser crimes including an introduced bill in New South Wales in response to drug and alcohol fuelled violent offences.
Introducing consistent mandatory sentencing laws would minimise the high amount of inconsistencies in leniency between cases. Three similar examples include Mark Burns who failed to see another car as he drove into an intersection killed a mother, father and son and was originally charged with three counts of death by dangerous driving. This was reduced to one aggravated count of driving without due care by a plea bargain and he received five-months imprisonment and a 15-month license disqualification. Dianne Jagla allegedly sneezed before causing a crash that endangered three lives and killed her eleven-year-old nephew. Similarly to Mark Burns, she was charged with causing death by dangerous driving which was reduced to aggravated driving without due care by a plea bargain. She received a four-month suspended jail term and a licence disqualification for eight months. William Graham hit and dragged a man who was lying on the road before driving away and turning himself into the police. Like the previous cases, he was originally charged with causing death by dangerous driving where a plea bargain reduced his sentence to one aggravated count of driving without due care. He received a suspended 16-month jail term on the condition that he maintain a roadside shrine to the man and was disqualified for driving for eleven years. The discrepancy has seen one driver who killed three people lose his licence for 15-months and another, responsible for one death, lose his for eleven years. The institution of consistent mandatory sentencing and further disallowing plea bargains to reduce convictions would ensure community satisfaction and trust in the judiciary system and allow for uniform consistency in Australia.
It is arguable that tougher prison sentences reduce crime. Many supporters of mandatory sentencing argue that it ensures adequate retribution for offending conduct. Retribution is based on the principle that those who engage in criminal activity and harm others deserve to suffer. Crime Victims Support Association (CVSA) argue that judges are greatly removed from the ‘norm’ of society, often live and work un affluent areas where there are lower crime rates and rarely experience physical assault first hand. As a result of this, it is argued that judges are often lenient on offenders. Ralph and Kathy Kelly, the parents of Thomas Kelly, who was fatally punched in King Cross, Sydney, in 2012 have also advocated for mandatory consistent sentences. Kieran Loveridge was sentenced to four years of imprisonment for killing Thomas while he was intoxicated, resulting in the Kelly’s starting a petition calling for mandatory sentencing laws in cases of manslaughter. Consistent mandatory sentencing laws would create a uniform standard in which crimes would carry a consistent sentence. This would improve social cohesion and bring just outcomes to severe cases.
There is evidence that mandatory sentencing regimes effectively limit the discretion of the judiciary to impose a fair and just sentence in court trials. The Queensland Parliament is one of various jurisdictions in Australia that has passed legislation for offences with consistent sentence. The offence of failing to stop a motor vehicle, which is contained in section 754 of the Police Powers and Responsibilities Act 2000 (QLD), provides that the consistent mandatory penalty for failing to stop a motor vehicle directed to do so by a police vehicle is 50 days’ imprisonment served wholly in a correctional facility or 50 penalty units (currently a fine of $5,500). This section does not allow for judicial discretion during sentencing, and does not take into account the offender’s reasons for failing to stop. In addition to this penalty, the offender’s licence must be disqualified for a consistent of 2 years. A major issue with this legislation is that police vehicles also include unmarked police vehicles, and failing to stop for an unmarked vehicle can therefore mean a person can be liable for a mandatory period of imprisonment regardless of the reason they provide. For example, a man speeding above the limit to take his pregnant wife to the hospital would be a valid reason to justify his actions.
In existing lesser crime mandatory sentencing, it is evident that the consistent penalty imposes the risk of anomalous or unjust sentences. Examples of this includes the 28 day imprisonment of a 16 year old with one prior conviction for stealing a bottle of spring water and a woman who was a first time offender who received a 14 day prison sentence for stealing one can of beer. Such cases like these, which are perhaps not well known amongst the general community, violate an established sentencing principle that a sentence and a retribution should be proportionate to the gravity of the offence and having regard and consideration to the circumstances of the offence.
The introduction of consistent sentencing regimes in Australia would suggest a lack of belief in judicial discretion and independence. The Law Council of Australia states that “judicial members are impartial decision maker that interpret the law, assess the evidence presented from both sides of the case before making a determination”. In accordance with the rule of law, the parliament legislates the maximum sentence for each crime but the judge presiding over a case is the determiner on the sentence for the accused according to the facts of the case and the law. A consistent mandatory sentence conflicts with the judge’s role in sentencing because instead of the judge deciding on a punishment that fits the crime, the judge must sentence the offender to at least the consistent mandatory sentence dictated in legislation.
When sentencing, judges are required to take into consideration both the purposes and the principles of sentencing to come to just outcomes and aim to deter and rehabilitate the offender. The Crimes (Sentencing Procedure) Act 1999 (NSW) states the purposes of sentencing which a judge must consider:
(a) that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender
(d) to promote the rehabilitation of the offender
(e) to make the offender accountable for his actions
(f) to denounce the conduct of the offender (g) to recognise the harm done to the victim of the crime and the community.
Judges provide reasons for their sentencing decisions which must be based on the law, reasons for sentencing are important to allow appeal to assure the law has been applied correctly.
In addition, the principles of sentencing established by common law and legislation must be applied in each case including the principle that imprisonment is only enforced when no other punishment is appropriate, the punishment must fit the crime and similar crimes should receive similar sentences. Introducing mandatory consistent sentencing standards would conflict with the judge’s ability to oversee specific circumstances of a case and to enforce a just
punishment.
The introduction of mandatory sentencing presents potential concerns in conflict with the discretion and independence of the judge, imposing the risk of unjust cases and a suggested lack of belief in the judge’s ability to enforce a sentence based on the principles of sentencing. In contrast, public opinion surveys suggest that members of the community are dissatisfied with the lenient and inconsistent sentences that are imposed by judge’s. Consistent mandatory sentencing would minimise these inconsistencies between cases of similar nature and would in hand with the functions of law to promote social cohesion. Australia should introduce consistent mandatory sentencing standards that are uniform in each state to promote social cohesion and public satisfaction with the system, where a decrease in the inconsistencies between cases would be seen.
The results from a national Australian survey on public opinions towards sentencing shows that the majority of respondents expressed high levels of dissatisfaction and were displeased with sentences that are imposed by the courts. These views can be exhibited by the media and their portrayal. An example of this is that newspapers often publish letters to the editor and opinion articles criticising judges for lenient sentences. In 2012, BOCSAR published the results of a public opinion survey. The results suggested that the majority of people, 59%, thought that sentencing was either a little too lenient or much too lenient. …show more content…
Public pressure has previously persuaded amendments to acts across a number of jurisdictions to lesser crimes including an introduced bill in New South Wales in response to drug and alcohol fuelled violent offences.
Introducing consistent mandatory sentencing laws would minimise the high amount of inconsistencies in leniency between cases. Three similar examples include Mark Burns who failed to see another car as he drove into an intersection killed a mother, father and son and was originally charged with three counts of death by dangerous driving. This was reduced to one aggravated count of driving without due care by a plea bargain and he received five-months imprisonment and a 15-month license disqualification. Dianne Jagla allegedly sneezed before causing a crash that endangered three lives and killed her eleven-year-old nephew. Similarly to Mark Burns, she was charged with causing death by dangerous driving which was reduced to aggravated driving without due care by a plea bargain. She received a four-month suspended jail term and a licence disqualification for eight months. William Graham hit and dragged a man who was lying on the road before driving away and turning himself into the police. Like the previous cases, he was originally charged with causing death by dangerous driving where a plea bargain reduced his sentence to one aggravated count of driving without due care. He received a suspended 16-month jail term on the condition that he maintain a roadside shrine to the man and was disqualified for driving for eleven years. The discrepancy has seen one driver who killed three people lose his licence for 15-months and another, responsible for one death, lose his for eleven years. The institution of consistent mandatory sentencing and further disallowing plea bargains to reduce convictions would ensure community satisfaction and trust in the judiciary system and allow for uniform consistency in Australia.
It is arguable that tougher prison sentences reduce crime. Many supporters of mandatory sentencing argue that it ensures adequate retribution for offending conduct. Retribution is based on the principle that those who engage in criminal activity and harm others deserve to suffer. Crime Victims Support Association (CVSA) argue that judges are greatly removed from the ‘norm’ of society, often live and work un affluent areas where there are lower crime rates and rarely experience physical assault first hand. As a result of this, it is argued that judges are often lenient on offenders. Ralph and Kathy Kelly, the parents of Thomas Kelly, who was fatally punched in King Cross, Sydney, in 2012 have also advocated for mandatory consistent sentences. Kieran Loveridge was sentenced to four years of imprisonment for killing Thomas while he was intoxicated, resulting in the Kelly’s starting a petition calling for mandatory sentencing laws in cases of manslaughter. Consistent mandatory sentencing laws would create a uniform standard in which crimes would carry a consistent sentence. This would improve social cohesion and bring just outcomes to severe cases.
There is evidence that mandatory sentencing regimes effectively limit the discretion of the judiciary to impose a fair and just sentence in court trials. The Queensland Parliament is one of various jurisdictions in Australia that has passed legislation for offences with consistent sentence. The offence of failing to stop a motor vehicle, which is contained in section 754 of the Police Powers and Responsibilities Act 2000 (QLD), provides that the consistent mandatory penalty for failing to stop a motor vehicle directed to do so by a police vehicle is 50 days’ imprisonment served wholly in a correctional facility or 50 penalty units (currently a fine of $5,500). This section does not allow for judicial discretion during sentencing, and does not take into account the offender’s reasons for failing to stop. In addition to this penalty, the offender’s licence must be disqualified for a consistent of 2 years. A major issue with this legislation is that police vehicles also include unmarked police vehicles, and failing to stop for an unmarked vehicle can therefore mean a person can be liable for a mandatory period of imprisonment regardless of the reason they provide. For example, a man speeding above the limit to take his pregnant wife to the hospital would be a valid reason to justify his actions.
In existing lesser crime mandatory sentencing, it is evident that the consistent penalty imposes the risk of anomalous or unjust sentences. Examples of this includes the 28 day imprisonment of a 16 year old with one prior conviction for stealing a bottle of spring water and a woman who was a first time offender who received a 14 day prison sentence for stealing one can of beer. Such cases like these, which are perhaps not well known amongst the general community, violate an established sentencing principle that a sentence and a retribution should be proportionate to the gravity of the offence and having regard and consideration to the circumstances of the offence.
The introduction of consistent sentencing regimes in Australia would suggest a lack of belief in judicial discretion and independence. The Law Council of Australia states that “judicial members are impartial decision maker that interpret the law, assess the evidence presented from both sides of the case before making a determination”. In accordance with the rule of law, the parliament legislates the maximum sentence for each crime but the judge presiding over a case is the determiner on the sentence for the accused according to the facts of the case and the law. A consistent mandatory sentence conflicts with the judge’s role in sentencing because instead of the judge deciding on a punishment that fits the crime, the judge must sentence the offender to at least the consistent mandatory sentence dictated in legislation.
When sentencing, judges are required to take into consideration both the purposes and the principles of sentencing to come to just outcomes and aim to deter and rehabilitate the offender. The Crimes (Sentencing Procedure) Act 1999 (NSW) states the purposes of sentencing which a judge must consider:
(a) that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender
(d) to promote the rehabilitation of the offender
(e) to make the offender accountable for his actions
(f) to denounce the conduct of the offender (g) to recognise the harm done to the victim of the crime and the community.
Judges provide reasons for their sentencing decisions which must be based on the law, reasons for sentencing are important to allow appeal to assure the law has been applied correctly.
In addition, the principles of sentencing established by common law and legislation must be applied in each case including the principle that imprisonment is only enforced when no other punishment is appropriate, the punishment must fit the crime and similar crimes should receive similar sentences. Introducing mandatory consistent sentencing standards would conflict with the judge’s ability to oversee specific circumstances of a case and to enforce a just
punishment.
The introduction of mandatory sentencing presents potential concerns in conflict with the discretion and independence of the judge, imposing the risk of unjust cases and a suggested lack of belief in the judge’s ability to enforce a sentence based on the principles of sentencing. In contrast, public opinion surveys suggest that members of the community are dissatisfied with the lenient and inconsistent sentences that are imposed by judge’s. Consistent mandatory sentencing would minimise these inconsistencies between cases of similar nature and would in hand with the functions of law to promote social cohesion. Australia should introduce consistent mandatory sentencing standards that are uniform in each state to promote social cohesion and public satisfaction with the system, where a decrease in the inconsistencies between cases would be seen.