Assess The Difference Between Sentencing And Individualism

"Any court dealing with an offender in respect of his offense must have regard to the following purposes of sentencing" retribution, denunciation, incapacitation, deterrence, rehabilitation and reparation which will all be discussed in this essay.

Inconsistency in sentencing is due to the lack of knowledge in which lay magistrates obtain and this creates a negative effect towards the court system. If sentences are inconsistent this means that the role of courts is not being completed effectively as they should be. Lay magistrates who are faced with offences may come to final decisions towards sentences which may not be acceptable, if an individual commits an offence they must receive a sentence which is a punishment towards their behaviour however with the lack of knowledge which the lay magistrate has, sentences may be inconsistent.

The first section is for the mandatory minimum sentence of life in prison for first and second-degree murder and treason. The second section deals with firearms offences. The third section of mandatory minimum sentences address repeat offenders in seven distinct categories, which involve impaired driving and possession of unauthorized weapons (Canada, 2013). The last category of MMS in Canada deals with hybrid offences. These were implemented in the Canadian legislation in 1995. If an offender commits a crime that has been determined to result in a mandatory minimum sentence within the Canadian Legislation, the judge must implement that sentence no matter what the aggravating or mitigating factors are. Due to this sentencing legislation, many innocent people are serving time in prison due to a false conviction and the lack of judicial discretion in their individual case. Even though mandatory minimum sentences offer more costs then rewards, some politicians, community members and victims of crime still support it due to the proposed retributive and deterrent effects. There have been many cases and arguments against mandatory minimum sentences especially due to the fact that it restricts the judge’s discretion during the sentencing process. These will be discussed in more depth throughout this paper.

Furthermore, throughout sentencing and punishment various legal and non-legal measures have been implemented to ensure that sentences for those convicted are appropriate and effective to enable rehabilitation and reintegration into society and provide the community with a sense of justice and security. The provision of statutory and judicial guidelines means that limits are placed on a judge’s discretion when sentencing, thus ensuring sentencing consistency. These guidelines were established in relation to the case R v. Jurisic (1998). The defendant Jurisic, pleaded guilty to three charges of dangerous driving occasioning in grievous bodily harm. He was found under the influence of cocaine on one of these charges. He was sentences to 18 months home detention, lost his driver’s licence for one year and was put on a good behaviour bond for two years. This was through to be lenient and was appealed by the DPP. The appeal was upheld and the sentence was replaced by two years imprisonment and two years disqualification of his driver’s

Secondly, they should be addressed the needs of offenders and the deficits in their lives that contributed to their offending. And thirdly, sentences should not be severe, intrusive, or damaging to an offender’s later decarceration to live a righteous life than is minimally necessary to achieve valid purposes of the sentence he or she receives (Tonry 508). An addition to these are proportionality, which means that sentences should correspond in severity to the seriousness of the crimes which they are inflicted. Also, regularity, which signifies that sentences should be guided by official standards to make the process clear, procedures fair, and allow judges to be more accountable (Tonry 508). Moreover, the American Criminal Code must be taken into consideration. Two features must be altered if the sentencing is to become fair, effective, and just. Firstly, the harsh sentencing laws must be revoked, and secondly the limits, that matches the offense seriousness, must be put on the lawful sentences (Tonry 514). Moreover, Tonry mentioned about future changes that, “If adopted, they would greatly reduce the number of people in prison in future years, but their adoption would not significantly reduce the scale of American imprisonment in 2015 or in 2020. Doing that will require enactment of new laws authorizing reconsideration of sentences now being served (Tonry 523).

There is an ongoing problem in our society regarding punishment and responsibility. We, as a society, tend to look away when it comes to how criminals are being punished and maybe we should be paying more attention. Violence seems to be an integral part of our society, some raise their children with violence, we watch it on television, read it in newspapers and books and now we are even playing violent video games. When it comes to the judicial system the majority of citizens do not even know how individuals are being punished or if the punishment is too harsh, not severe enough or if the individual even needs punishment because what they may need is psychiatric help.

By restricting judicial discretion, courts are prevented from considering a more suitable alternative to imprisonment when relevant as the principle requires mandatory incarceration. According to the Australian Bureau of Statistics, ‘as of 30 June 2000 the imprisonment rate in the Northern Territory was 458.1 per 100,000… compared to a national imprisonment rate of 147.7 per 100,000.’ This increased rate of imprisonment in jurisdictions such as the northern territory, where mandatory sentencing laws are seen to operate at their harshest, provides evidence of the direct link between the mandatory sentencing principle and the rate of imprisonment. The increased rate of imprisonment puts strain on the tax payer funds that financially support the incarceration of offenders. Cases involving mandatory sentences see a significant reduction in guilty pleas as there is no possibility for the plea to reduce the offenders sentence (Law Council, 2017).

Statutory and judicial guidelines inform the exercise of judicable discretion in the area of sentencing. They aim to provide greater uniformity in sentencing matters and enhance the integrity of the process. Judicial guidelines are set by the NSW Court of Criminal Appeal. They are not binding but their aim is to structure discretion. For example, for the offence of culpable driving the court has indicated that in the normal course a custodial sentence should be imposed unless exceptional circumstances exist. In terms of statutory guidelines a number of acts inform the exercise of judicial discretion. For example, the Crimes Act 1900 NSW prescribes the maximum sentence that may be imposed for various offences. The Crimes (Sentencing Procedure) Act 1999 NSW also prescribes general guidelines in relation to sentencing. For example it

The criminal justice system plays a fundamental role in achieving justice, as the system aims to protect all members of the community fairly and equally. However, in the criminal case of R v Loveridge, it is evident that the justice system fails to apply the law to equally balance the needs of the victims and the community. In this case, the offender Kieran Loveridge pleaded guilty to five counts of offences; three charges of common assault, one charge of assault occasioning actual bodily harm and one charge of manslaughter by an unlawful and dangerous act, the victim being Thomas Kelly, Loveridge received 4 years’ non-parole for manslaughter, Loveridge’s total effective sentence therefore is 7 years and 2 months with an effective

Sentencing models are plans or strategies developed for imposing punishment for crimes committed. During the 19th century these punishments were normally probation, fines and flat sentences. When someone was given a flat sentence, he or she had to serve the entire sentence without parole or early release. However, by the end of the 19th century the new models were developed. These new models include indeterminate, determinate, advisory/voluntary guidelines, presumptive and mandatory minimum sentencing (Schmalleger & Smykla, 2011).

These fluctuations in criminal justice policies are not just in local governing bodies; these changes are an effort to adapt to a new technologically based modern age, and that goal of adaptation radiates to all ends of the earth, thereby having a global reach. As all societies, and populations of people alter and change, and belief systems ebb and flow, the rules and laws that govern such people must change with them. It is imperative that a governing system stay current, for without an ever-changing system of behavioral structure then those societies race faster toward

Judicial discretion was prevalent over the first half of the last three decades, but has been regulated by legislature since 1984. Discretion by definition is the authorization of deciding as one thinks fit, absolutely or within limits (Ntanda, 1999). Indeterminate sentencing, traditionally, has afforded judges considerable discretion over the resolve of criminal sentencing. “While such discretion theoretically allows judges to tailor sentences to the circumstances of individual crimes and criminals, thereby achieving a sort of ex post fairness, it also permits variation in sentences that may not be warranted by the observable facts of the case, reflecting instead the judge’s own preferences” (Miceli, 2008, p.207). The punishment

Judges and magistrates must consider a wide variety of factors when determining a sentence for an offender. Primarily, the sentence must coincide with the statutory guidelines e.g that set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), and the judicial guidelines that set precedent for all judges and magistrates in the state. Within this legislation are the purposes for which a sentence may be imposed, types of penalties, minimum/maximum sentences and mandatory sentences.

Bentham, J. (1789). Punishment and deterrence. In A. von Hirsch & A. Ashworth (Eds., 1998), Principled sentencing: readings on theory and policy (2nd ed.). 53-57. Oxford: Hart Publishing.

As a part of this relationship individuals gave up some of their liberties in the interest of the common good, with the purpose of the law being to ensure that these common interests were met. For Beccaria, this meant that the law should be limited and written down so that people could make decisions on how to behave. More importantly, punishment was to fit the crime not the individual and was to be certain and swift (Williams & McShane, 2010). Offenders were to be seen as reasonable people with the same capacity for resisting offending behavior as non-offenders. The guiding principle of the criminal justice process was the presumption of innocence; and in this general framework punishment was to be seen as a deterrent to criminal behavior. The central concern of the law and the criminal justice process was therefore the prevention of crime through this deterrent function.