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Advantages and disadvantages of discretion

Discuss about the Introduction to Criminology and Criminal Justice for Punishment.

The discretion refers to the judgement. It is called the art of suiting action to specific circumstances. The discretion exists at various stages such as at the time of investigation, pre-trial, sentence and the punishment. There are many advantages and disadvantages of the role of discretion in the Australian justice system so it deals for justice to the individuals. Generally, the discretion is called capability of a magistrate to decide how, where and what severity to sentence a person who is guilty (Strange, 2011). In this essay, the role of discretion in imposing the sentence and the impact of discretion decision on the other discretion decision making is discussed and critically examined.

The discretion is explained by the process of the investigation, process of the criminal trial, sentence and the punishment. The principle indicates powers in the respect of the sentence. The court is required to apply the law which is imposed by the parliament. The parliament is superior over the court in respect of the discretion of the judges to give sentence. The sentence and punishment has involved the discretion of the magistrates to decide the most appropriate sentence for the case. The discretion includes the power of magistrates to decide the most suitable sentence for a case. The judges are allowed to take decision about the sentence on the basis of the case and it permits the judges to consider the various circumstances (Ross, 2015).

In case of R v Dean [2013] NSWSC 1027, the Roger Dean was punished to the life time imprisonment as a victim of the eleven counts of the murder under section 61 of the Crimes (Sentencing Procedure) Act 1999 (New South Wales). The section 61 of the Crimes (Sentencing Procedure) Act 1999 (New South Wales) states the compulsory life imprisonment for the certain offences. This example of compulsory sentence removes the discretion. It shows that the discretion have no role in the compulsory imprisonment. For the fair, reliable and consistent trial with guidelines and the judgements, the discretion is removed in the compulsory discretion (Findlay, Odgers & Yeo, 2015). It adds value and the effectiveness of the criminal trial process in imposing sentence and punishment of criminal. The standard system directs the judicial discretion’s exercise in reference of the previous judgement.

At the time of deciding the imprisonment for crime, the court is required to consider the aggravating and mitigating factors in the case. These two factors can notify the discretion’s exercise, leading to harsher or lenient penalty. The aggravating factors are particular to the crime or the sufferer or the defendant which may offer the harsher penalty. On the other hand mitigating factors warrant the more lenient penalty. There are many factors to be considered in the both situations in respect of the criminal. And give powers to the magistrate in respect of the discretion under section 21 A of the Crimes (Sentencing Procedure) Act 1999 (New South Wales) (Joudo-Larsen, 2014). These two factors, aggravating and the mitigating factors permit for the discretion to play an important role in imposing the sentence and the punishment of the criminal, for a fair trial (Gelsthorpe & Padfield, 2011).

The magistrate has a power of discretion to listen and consider the victim impact statement in deciding the sentence for the victim (Prenzler & Sarre, 2015). These statements are presented after the declaration of the crime of the victim and before impose the imprisonment. In the case of McCartney v R (2009) NSWCCA 244, a person found guilty of the sexual assault. The court considered the aggravating and mitigating factors and gave punishment of the two years imprisonment (Travis & Edwards, 2015). The court also considered the victim impact statement and decided that the life of sufferer has been disrupted by the suffered substantial distress. The victim impact statement plays an important role in imposing the sentence. The judge use the discretion to decide the appropriate sentence for the victim and the offender after consider the aggravating and the mitigating factors. The victim impact statement is the very helpful method to restore the justice for the victim (Strang & Braithwaite, 2015).

When the sentence is imposed by the magistrates, the question of discretion against the rule of law arises. The people are of the view that the prisoners should use own decision to exercise satisfactory discretion. There are many factors which affect the role discretion in the sentence and the punishment of the criminals. These are guidelines, compulsory sentence, situations. The purpose of the sentence and the penalty’s types are set out by the Crime (Sentencing Procedure) Act 1999. The Crime (sentencing procedure) Act 1999 considers as the key source of the sentencing law in the New South Wales. It provides the guidelines in respect of the sentence (Jeremy, 2012).

The judge is required to apply the proper law to impose sentence in the proportion of the crime. The magistrates use their own judgement at the discretion to impose sentence. This will restricted them to the general public. There is some discretion which is required to be removed under the sentencing guidelines. The magistrate who has the knowledge of the law, should be trustworthy in exercising the judgement at his own discretion to impose a sentence. A magistrate is allowed to apply his personal emotions in respect of the case. It means the personal involvement of the judge may result in the unfair sentence. The discretion of the judge should be used with the caution (Quilter, 2016).

The structure of the sentencing guidelines is tough for the judges in applying their own judgements and experience at the discretion to impose the sentence. The sentencing guidelines council works together with the Sentencing Advisory Panel (Bartels, 2015). As the Sentencing Advisory Panel includes the magistrates, judges, criminal justice practitioners and the academic, it has the appropriate knowledge and the understanding of the law. The guidelines in the present jurisdiction indicate the appropriate sentences in the proportion of the crime. In this way, the magistrates are not required more discretion.

In Australia, the high court challenged the role of the discretion in the court room that the court should not have discretion in imposing the sentences. Many magistrates think that the role of discretion in the imposition of sentence is the significant part of the imposition of the sentence. Just like thumbprints no two cases are the similar, the guidelines determine possibility of every situations of the case presented to the court.

The discretionary decisions in early stages make impact later upon other discretionary decisions in other stages. The magistrates take in the consideration the impact of the sentence upon the other stages in criminal justice system. The judges identify that if concession is not given for the pleas, then accumulation of the trial cases may grow so heavy. It is also identified by the judges that when there are so many prisoner in the prisons and there are not new prisoners to keep them, the parole board may be forced to release the prisoners for every new one. In these conditions, the high maximum terms have no meaning. They are meaningless. The prisoner will be released from prison without the considerations.

The discretion is considered as the freedom to decide. It is a freedom to decide that what should be done in the circumstances and the particular situations. This may have the positive or the negative impact. The police and the court have powers of discretion in the investigation or the judgement. The police as well as the court may use the discretion which can damage any party in the court room in respect of the fair justice. The role of the discretion has advantages as well as disadvantages. It deals with achieving the fair justice for an individual.

The trial court is required to give decision after considering the mitigating and the aggravating factors. The sentencing statement of the trial court must recognise the mitigating and the aggravating factors and the reasons to identify particular reasons why the circumstances is aggravating or the mitigating. The sentencing statement of the trial court should demonstrate that the mitigating and the aggravating circumstances have weighed to decide that the mitigating factors are outweighed by aggravating factors. The decision given in the trial court affect the sentence to be given. In the case of James C. Gaskill v State of Indiana No. 86A03-1008-CR-563, appellant James C. Gaskill made appeal the 18 years imprisonment (Deckert & Sarre, 2017).The arguments made by Gaskill that the trial court abused discretion in respect of the sentence because the court recognised the aggravating factors in improper way. It was not the supported by the record. Gaskill also argued that sentence is not appropriate as per the nature of the offence committed by him. The trial court gave decision to pay $58222.26 for the medical expenses and the funeral expenses. Thus trial court abused the discretion.

Conclusion- 

As per the above analysis it is cleared that the use of the role of the discretionary in the criminal justice system can partially effective in this system. It may have a bad effect on the parties. So discretion is the part of the criminal justice system which is required to be reform to get effective in achieving the fair justice for the parties. 

Reference

Bartels, L. (2015). Criminal justice system in Australia. Melbourne: Hybrid publishers.

Deckert, A., & Sarre, R. (2017). The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice. Switzerland: Springer Nature.

Findlay, M., Odgers, S., & Yeo, S. M. H. (2015).  Australian criminal justice. Oxford: Oxford university press.

Gelsthorpe, L., & Padfield, N. (2011).  Exercising Discretion Decision – making in the criminal justice system and beyond. Oxon: Routledge.

Jeremy, G. (2012). Modern Criminal Law of Australia. Melbourne: Cambridge University Press.

Joudo-Larsen,  J., (2014). The restorative justice in the Australian criminal justice system. Australia: Australia university press.

Prenzler,  T., & Sarre, R. (2015). The criminal justice system. Oxford: Oxford university press.

Quilter, J. (2016). The definition and significance of Australian criminal law. Australia: Australia university press.

Ross, S. (2015). Victims in the Australian criminal justice system: principles, policies and actions. In crime, victims and policy, 35(2), 214-239.

Strang, H., & Braithwaite, J. (2015). Restorative justice: philosophy to practice.  Oxford: Routledge.

Strange, C. (2011). Qualities of Mercy: Justice, Punishment, and Discretion. Vancouver: UBC Press.

Travis, L. F., & Edwards, B. D. (2015).  Introduction to Criminal Justice.  Oxon: Routledge.

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