Assess the role of discretion on the factors affecting sentencing and punishment.
The role of discretion has had varying degrees of success in the factors affecting sentencing
and punishment. This occurs due to the importance of considering the effect of the
implementation of discretion in areas of individual considerations and law reform. Within
mandatory sentencing discretion has had an increasingly diminished role in protecting the
breach of separation of powers and the consideration of the individual. For victim impact
statements, the role of discretion is effective in adjusting the impact of aggravating factors
to protect the rights of the individual. For suspended sentences, the role of discretion is
rendered more significant by crucial law reform that targets individual rehabilitation.
In mandatory sentencing the role of discretion has been diminished significantly by the
nature of the legislation that reduces available consideration of individual circumstances.
Mandatory sentencing is an automatic sentence created by parliament for specific offences
that must be enforcement by judicial officers and is outlined within the Crimes Act 1900
(NSW). Discretion is inherently impeached by the nature of mandatory sentences due to the
statutory power over the judiciary which is often driven by an immediate need to meet the
demands of the community. In the case of R V Loveridge 2013 NSW, Thomas Kelly was killed
in an intoxicated one-punch assault. His death among others resulted in significant backlash
by the community for law reform and increasingly pressure to achieve the purpose of
retribution. With the introduction of the Crimes and Other Legislation Amendment (Assault
and Intoxication) Act 2014 created the offence of ‘assault causing death’ which entailed a
minimum 8 years for an intoxicated individual. The nature of this legislation significantly
reduced the discretion of judges to consider the mitigating circumstances of individuals and
the lack of pre-mediation of the crime. The emphasis on enforceability and responsiveness
to crime and occurred so to the detriment of the separation of powers and the court’s
ability to achieve justice for vulnerable individuals such as young people with some of the
highest rates of rehabilitation. The reduction of the role of discretion on the factors of
mitigating circumstances and individual evaluation is detrimental to the sentencing and
punishment process.
The role of discretion has had varying degrees of success in the factors affecting sentencing
and punishment. This occurs due to the importance of considering the effect of the
implementation of discretion in areas of individual considerations and law reform. Within
mandatory sentencing discretion has had an increasingly diminished role in protecting the
breach of separation of powers and the consideration of the individual. For victim impact
statements, the role of discretion is effective in adjusting the impact of aggravating factors
to protect the rights of the individual. For suspended sentences, the role of discretion is
rendered more significant by crucial law reform that targets individual rehabilitation.
In mandatory sentencing the role of discretion has been diminished significantly by the
nature of the legislation that reduces available consideration of individual circumstances.
Mandatory sentencing is an automatic sentence created by parliament for specific offences
that must be enforcement by judicial officers and is outlined within the Crimes Act 1900
(NSW). Discretion is inherently impeached by the nature of mandatory sentences due to the
statutory power over the judiciary which is often driven by an immediate need to meet the
demands of the community. In the case of R V Loveridge 2013 NSW, Thomas Kelly was killed
in an intoxicated one-punch assault. His death among others resulted in significant backlash
by the community for law reform and increasingly pressure to achieve the purpose of
retribution. With the introduction of the Crimes and Other Legislation Amendment (Assault
and Intoxication) Act 2014 created the offence of ‘assault causing death’ which entailed a
minimum 8 years for an intoxicated individual. The nature of this legislation significantly
reduced the discretion of judges to consider the mitigating circumstances of individuals and
the lack of pre-mediation of the crime. The emphasis on enforceability and responsiveness
to crime and occurred so to the detriment of the separation of powers and the court’s
ability to achieve justice for vulnerable individuals such as young people with some of the
highest rates of rehabilitation. The reduction of the role of discretion on the factors of
mitigating circumstances and individual evaluation is detrimental to the sentencing and
punishment process.
