DISCRETION ESSAY SUMMARY

INTRO
 To give fair punishments judges must use their own discretion
during sentencing to take all aspects of the case into account
 Discretion is limited by statutory guidelines establishing
mandatory minimum and maximum sentences as founded
through R v. Jurisic 1998
 Crimes (Sentencing Procedure) Act 1999 (NSW) gives mandatory
maximum sentences for some serious crimes e.g. murder
 Crimes (Sentencing Procedure) Amendment Act 2002
introduced mandatory minimum sentences
 Therefore there is a range that judges must use their discretion
within
 Judges discretion will also be influenced by aggravating and
mitigating circumstances
 Media may influence judges decision- they might feel the need
to give a harsher penalty to satisfy the community
 Mandatory minimum sentences were introduced to protect
community but it diminishes judicial discretion and its uncertain
whether these sentences will really benefit in the long-term
P1: Introduction of Mandatory Maximum Sentencing
 Judicial discretion became restricted after community outrage
due to inconsistent sentences
 R v Jurisic established sentencing guidelines because he
received a really lenient sentence- he pleaded guilty to 3
charges of dangerous driving resulting in grievous bodily harm
and was found to be under the influence of cocaine for one of
these charges. He was given 18 months home detention, good
behaviour bond for 2 yrs and lost license for 1 year
 Therefore mandatory maximum sentences were established
under Crimes (Sentencing Procedure) Act
 Sentencing guidelines limit judicial discretion but satisfy
community
P2: Aggravating and Mitigating Circumstances
 Judge must consider aggravating and mitigating circumstances
in discretion when determining punishment
 Aggravating= harsher penalty
 Mitigating= lenient penalty
 Aggravating and mitigating circumstances can complicate
discretion e.g. McCartney v R- offender charged with sexual
assault while intoxicated. Offender appealed against his
sentence stating judge’s discretion wasn’t right because it didn’t
properly balance all the aggravating and mitigating
circumstances of the offence
 Mitigating circumstances- young age, no criminal history, unlikely
to reoffend
  Aggravating circumstances- Seriousness of offence particularly
after Victim Impact Statement (VIS) was considered
 Appeal was dismissed and judge referred to general deterrence
as a really important factor- the community must know sexual
assault is wrong
 Judicial discretion is really important- judges can decide which
elements of the case are the most important and need the most
attention
P3: Introduction of Mandatory Minimum Sentencing
 Crimes (Sentencing Procedure) Amendment Act 2002
introduced mandatory minimum sentences for some crimes
 This was amended again in 2014 to include a mandatory
minimum jail term of 8 years for ‘one-punch’ crimes that lead to
death and involve alcohol
 This again limits judicial discretion but satisfies community
 It’s arguable whether these sentences will really benefit in
advance
 ABC News says legal experts have said “such deterrents do not
work and will disadvantage vulnerable groups”
 Former NSW DPP says mandatory minimum sentences are a
“recipe for injustice”
 Human Rights Law Centre agrees and says mandatory
sentencing restricts judicial discretion too much- individual
circumstances can’t be taken into account
 DISCRETION ESSAY
“Assess the role discretion plays in the sentencing and punishment of
offenders”
To impose just punishments, a judge may use his or her own discretion
during the sentencing process. However, this discretion is somewhat
restricted by statutory guidelines establishing mandatory minimum and
maximum sentences, as founded through R v. Jurisic in 1998. The
Crimes (Sentencing Procedure) Act 1999 (NSW) outlines mandatory
maximum sentences for particular crimes and was amended in 2002 to
introduce mandatory minimum sentences to keep pace with the
changing moralities of the public and deter crime commission. Thus
there is a range in which judicial officers can exercise discretion to
arrive at the best penalty on a case-by-case basis. A judge’s discretion
will also be influenced by aggravating and mitigating circumstances of
the offence, as outlined under section 29A of the Crimes (Sentencing
Procedure) Act. Additionally, the media may guide a judge’s
sentencing decision, and they may feel the necessity to impose a
different sentence to what would generally be. While the introduction
of mandatory sentences under the Crimes (Sentencing Procedure)
Amendment Act 2002 were originally to safeguard community and
individual rights, it erodes judicial discretion and it is debatable whether
such punishments will really benefit society in the long-term.

P1: THE INTRODUCTION OF SENTENCING GUIDELINES

Judicial discretion became restricted by the Crimes (Sentencing
Procedure) Act 1999 following community outrage and dissatisfaction
due to the inconsistent nature of sentencing. R v. Jurisic was the
defining case where Justice Spigelman claimed there was a necessity
for a system of guidelines to increase community satisfaction in
sentencing. Spigelman also declared such guidelines were not
envisioned to be binding decisions for judges, but rather as tools to
‘structure discretion’. Jurisic pleaded guilty to three charges of
dangerous driving resulting in grievous bodily harm. He was found to be
under the influence of cocaine for one of these charges and was
sentenced 18 months home detention, a good behaviour bond for two
years and lost his license for one year. Community outrage spurred the
necessity for limitations on judicial discretion. Thus, mandatory
maximum sentences were formed under the Crimes (Sentencing
Procedure) Act. While such sentencing guidelines limit judicial
discretion, such limitations satisfy community expectations by
promoting consistency of sentencing in the criminal justice system.

P2: AGGRAVATING AND MITIGATING CIRCUMSTANCES

Judges must consider aggravating and mitigating circumstances
established under section 29A of the Crimes (Sentencing Procedure)
Act in their discretion when determining the most appropriate penalty.
Aggravating circumstances are those that make the crime more
heinous, and will likely result in a harsher sentence. Contrary, mitigating
circumstances are forgiving factors of the crime that will result in a
more lenient sentence. The consideration of aggravating and
mitigating circumstances may complicate a judge’s discretion, as
demonstrated in the case of McCartney v R in 2009. The offender was
a 22 year-old male who sexually assaulted his victim while she was
asleep. Both were intoxicated. The offender appealed against the
sentence, stating the judge’s discretion was inaccurate, as it did not
adequately balance all sentencing factors. Aggravating
circumstances of this case involved the nature and seriousness of the
offence, particularly once the judge had considered a Victim Impact
Statement (VIS), while mitigating circumstances included the young
age of the offender, his lack of criminal history and the unlikeliness of
him reoffending. However, the appeal was dismissed and the judge
referred to the necessity of general deterrence to ensure the
community understands sexual assault is unacceptable. Hence a
judge’s discretion plays an imperative role in the sentencing process,
as judges may decide which factors of the case are the most
prominent and need addressing.

P3: MANDATORY SENTENCING

The Crimes (Sentencing Procedure) Amendment Act 2002 introduced
mandatory minimum sentences for particular crimes, and was
amended in 2014 to include a mandatory minimum jail term of eight
years for fatal “one-punch” offences that involve alcohol. While this
limits judicial discretion, such amendments satisfy the community’s
expectations of justice. However, it is unclear as to whether such
amendments will truly benefit in the long-term. ABC News reveals that
NSW legal experts have claimed, “such deterrents do not work and will
disadvantage vulnerable groups”, while the former NSW DPP declared
that such sentences are a “recipe for injustice”. Human Rights Law
Centre also agrees, stating that mandatory sentencing prevents judges
from exercising their discretion, as specific circumstances of the
individual cannot be considered.