What Assumptions About Crime And Crime Control Underpin Mandatory Sentencing Provisions? Would You Recommend The Greater Use Of Mandatory Sentencing In Nsw? Give Reasons For Your Answer.
Before discussing the assumptions related with crime and crime control that underpin mandated sentencing provisions, perhaps a few comments regarding crime and punishment will be relevant. It has been said that crimes are created by politicians as they legislate and prescribe a particular conduct and create better days in case of a breach of these proscriptions. It is required that the process through which that is done should be sound and it should be supported by research and expert input and evaluation. Otherwise, there is a chance that the process can be significantly unsatisfactory depending on the political priorities and the perceived urgency on part of the legislators and their evaluation of what the people deserve, generally filtered by the tabloid media. It has been seen that the separation of powers that is present in the current democratic form of government and the legislative arm of government are behind this part of the process even if it is driven by the executive. Therefore a crime can be serious or comparatively minor but the legislature should prescribe prescribed penalties for all.
In this regard, a hierarchy of available punishments, as the imprisonment or the deprivation of liberty which is a basic human right, is at the top, being the most serious. But regardless of the sentence the law at present in Anniston requires that it should serve the seven purposes that have been mentioned in section 3A, Crimes (Sentencing Procedure) Act, 1999. These seven purposes are:-
(a) Ensuring that the offender is adequately punished;
(b) Preventing crime by detailing the offender as well as other persons for committing same crime;
(c) Protecting the community from the offender;
(d) Promoting the rehabilitation of the offender;
(e) Making the offender accountable for his actions;
(f) Denouncing the conduct of the offender; and
(g) Recognizing the harm suffered by the victim and also the community.
In this way, it can be said that in this section, the objectives that have been encapsulated include punishment, general and specific deterrence, community protection, rehabilitation, denunciation, accountability and the recognition of harm.
It needs to be noted that the Court has stated in Veen v The Queen (No. 2) that there are various purposes present behind criminal punishment. These include the protection of society, deterrence of the offender as well as the other persons who may be tempted to commit the same offense, retribution and reform. At the same time, there's an overlap of purposes and none of these purposes can be considered in an isolated way from the others than deciding what will be the appropriate sentence in a given case. They act as guideposts for deciding the appropriate sentence but in some cases, they may point in different directions. With the best of times, these guideposts have been increased and from four, they became seven in NSW.
Apart from it, there are five principles related with sentencing that have been established by the common law and also by the legislation that need to be applied in every case. These are:-
1. As a punishment, imprisonment should be the last resort and used only when no sentence except imprisonment can be considered to be appropriate (section 5(1) Crimes (Sentencing Procedure) Act, 1999).
2. Proportionality. According to it, the penalty imposed on the offender should be proportionate to the offense.
3. Totality. This requires that the total sentence that has been imposed on the offender for multiple offenses should not be disproportionate to total criminality.
4. Parity. This requires that parity should be present where multiple offenders are involved.
5. The De Simoni rule. This prevents sentencing for an element or feature that has not been included in the charge or conviction.
Generally it has been seen that according to a long-standing practice, while creating a crime, the legislature prescribes the maximum penalty that can be imposed on conviction and then it is for the judiciary to decide according to the principles that have been legislated and identified under the common law what penalty, less than the maximum should be imposed on the offender. In principle, there is no objection present to this practice. However, there are certain issues regarding how much further the legislature should move for circumscribing the discretion enjoyed by the courts. This raises the issue of mandatory sentencing.
Mandatory Sentencing: in this way, it can be said that issues of principle are raised by mandatory sentencing. Therefore, mandatory penalties had been prescribed in case of minor regulatory offenses. Like a fixed fine has been described in case of driving and car parking offenses or for the breach of health regulations or the loss of driving license. In principle, no argument has been advanced against these provisions, not least due to the reason that administrative penalties are always subject to the review by the court. In this way, they are not mandatory in a way that they are necessarily not final and they may be subject to the judicial discretion enjoyed by the courts.
On the other hand, mandatory sentencing in case of most serious crimes presents more problems. They have been created when it has been prescribed by the legislature that either the sentence, a range of sentencing or the minimum sentence that has to be imposed by the court in case of an offense. At least in NSW, a mandatory sentence becomes mandatory non-parole period, or the minimum time that has to be served by the offender in custody. At present, several mandatory and mandatory minimum sentences have been prescribed in case of serious offenses around the country. Some of the examples that can be given in this regard is as follows. However it needs to be noted that this list is not exhaustive.
Mandatory sentences are present in the Commonwealth, for example in section 236B, Migration Act, 1958 in case of the so-called people smuggling offenses. In this case the Commonwealth legislation draws a distinction between mandatory minimum sentence and a mandatory minimum non-parole period.
In the same way, these provisions are present in the Northern Territory in the form of section 157, Criminal Code in case of murder and also in section 78D to 78DI, Sentencing Act regarding certain offenses and under some particular sentences, although an exceptional circumstances provision is present to provide discretion that may be used by the courts in appropriate cases.
Similarly, these provisions are present in section 305, Criminal Code, 1899 in case of murder and also in section 161E, Penalties and Sentences Act, 1992 in case of repeated and serious child sex offences. Similarly, during the recent times, these provisions have also been introduced by the Vicious Lawless Association Disestablishment Act, 2013. This legislation, also known as VLAD is applicable in case of a much wider section of the community than only the members of motorcycle clubs.
In Western Australia, these provisions are present in section 401, Criminal Court Act, 1913 for the cases involving repeat burglary and also in section 9D, Sentencing Act, 1995 in case of offenses in which a declared criminal organization is involved.
These provisions are present in Victoria in sections 15 A and B of the Crimes Act, 1958 and also in section 10 and 10A of the Sentencing Act, 1991 regarding the offenses involving gross violence unless a special reason is present. Similarly it is present in section 30, Road Traffic Act, 1986 in case of repeat offenses involving driving while suspended or disqualified and also section 39C, Country Fire Authority Act, 1958 for the offense in which a fire has been caused with the intention of causing damage.
In the same way, the mandatory sentencing provisions are present in NSW in the form of section 19B, Crimes Act for the offense of murdering a police officer with certain particular features. Similarly, these mandatory provisions are also present in section 61, Crimes (Sentencing Procedure) Act in case of murder with certain features and also for serious trafficking after heroin and cocaine under certain circumstances.
In the same way, you need learned there is a mandatory minimum sentence of 17 years in case of murder with some aggravating circumstances however, a discretion has been given to the court if it would be manifestly unjust to prescribe such a minimum period.
In this context, USA is considered as the real home of mandatory and grid sentences but even in the United States, disadvantages are present in case of such and they're also starting to hurt back. Typically, the mandatory provisions apply in case of firearms and drug offenses but it has been confirmed by a number of studies that these provisions do not have any measurable deterrent effect and at the same time, these provisions are also costly to administer and they are disproportionately disadvantageous for the vulnerable sections of the society, for example the African-Americans. The result is that during the next two years, the Federal administration is considering clemency requests from a large number of Federal prisoners who are serving mandatory sentences in cases related with drug offenses.
Support for Mandatory Sentencing: The justification for the mandatory sentences, which includes the minimum mandatory sentences, is considered to be based on the three principal stated aims. These are:-
Consistency of sentencing: It may be difficult to argue against the same penalty is imposed every time the offense has been committed, and as a result, there will be consistency however the sentence is required to be fair and just first of all otherwise the consistency will mean nothing more than repeated injustice. In this context, the meaning of consistency is qualified; it is the imposition of consistent punishment for a similar behavior by similar persons instead of being just for the offense regarding which the offender has been convicted. In this context, it has been said that as is the case with consistency in punishment, a reflection of the principle of equal justice, is a basic element in a fair and rational system of criminal justice, so inconsistency in punishment, due to the reason that it is considered as a badge of unequal treatment and unfairness under the law, is set to result in the erosion of public confidence in the administration of justice. Due to this reason, it is a matter of abiding significance to avoid and eliminate unjustifiable discrepancy in sentencing for the administration of justice and also for the community.
Veen v The Queen (No. 2)  HCA 14
Anthony Gray and Gerard Elmore, ‘The Constitutionality of Minimum Mandatory Sentencing Regimes’ (2012) 22 Journal of Judicial Administration 37
Australian Law Reform Commission, Same Crime, Same Time Sentencing of Federal Offenders, Report No 103, April 2006, 133
Arlie Loughnan, ‘Drink Spiking and Rock Throwing: The Creation and Construction of Criminal Offences in the Current Era’ (2010) 35 Alternative Law Journal 18
Eileen Baldry, David Brown, Mark Brown, Chris Cunneen, Melanie Schwartz and Alex Steel ‘Imprisoning rationalities’ (2011) 44, Australian and New Zealand Journal of Criminology 24
Asher Flynn, Mark Halsey and Murray Lee ‘Emblematic Violence and Aetiologicial Cul-de-sacs on the Discourse of ‘One-punch’ (Non)Fatalities’ (2016) 56 British Journal of Criminology 179
Geraldine McKenzie, ‘Achieving Consistency in Sentencing: Moving to Best Practice?’ (2002) 22(1) University of Queensland Law Journal 74.
Jonathan Simon, Governing through crime (Oxford University Press, New York, 2007)
Geraldine Mackenzie, Isabel Spiranovic, Caroline Warner, Kate Stobbs, Nigel Gelb, Karen Indermaur, David Roberts Lynne, Rob Broadhurst and Thierry Bouhours, ‘Sentencing and public confidence: Results from a national Australian survey on public opinions towards sentencing’, (2012) 45(1) Australian & New Zealand Journal of Criminology 46.
Julia Quilter, ‘One-punch Laws, Mandatory Minimums and ‘Alcohol-Fueled’ as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3 International Journal of Crime, Justice and Social Democracy, 81
MirkoBagaric, ‘Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?’ (2000) 24 Criminal Law Journal 21
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