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Sentencing in the criminal justice system
Sentencing in the criminal justice system
The aims and types of sentencing
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INTRODUCTION The sentencing court procedures should aim to uphold the wellbeing of those who come before it. For the purpose of this analysis, the priority focus is the victim and the offender, and how their privileges outweigh one another. While therapeutic jurisprudence encourages therapeutic rejuvenation, there is no guarantee that it will satisfy the needs of both parties. This is especially true in sentencing procedures, where while the judge must ensure the offender is receiving a fair sentence, they must also take into account the impact of the crime on the victim. In the case I observed, R v Liszczak & Phillips, it appeared that sentencing procedures were offender-oriented, through encouraging rehabilitation. Whereas, while victim impact statements (VIS) were considered, it did not appear they had an influence over the …show more content…
During the sentence hearing of Liszczak and Phillips, Judge Croucher J took account of several mitigating factors. These included matters such as early plea of guilt, their relative youth, rehabilitation and the hardship of imprisonment they will endure. It becomes a matter of consideration of whether sentencing should take more account of mitigating factors, such as rehabilitation, which will assist in the wellbeing of the offender, or the police officer, who suffered trauma and other forms of mental and physical harm.
Aggravating factors were briefly mentioned by Judge Croucher J during the discussion of mitigating factors, claiming that both offenders showed a lack of remorse and a poor criminal history. Nonetheless, Judge Croucher J rebutted the aggravating factors, in relation to the offenders’ prospect for rehabilitation;
‘Their pleas of guilty, relative youth and family support…give me some cause for
Plea bargaining precludes justice from being achieved, where the consent to less severe sentences are given in favour of time and money. The case of R v Rogerson and McNamara, demonstrates the advantages of hiring highly trained legal personnel, which inevitably contributed to their lesser sentence. Thus, making it more difficult for offenders to be convicted.
The complex issues of dealing with offenders in the criminal justice system has been a point of ongoing controversy, particularly in the arena of sentencing. In one camp there are those who believe offenders should be punished to the full extent of the law, while others advocate a more rehabilitative approach. The balancing act of max punishment for crimes committed, and rehabilitating the offender for reintegration into society has produced varying philosophies. With the emanation of drug-induced crimes over the past few decades, the concept of drug treatment courts has emerged. The premise of these courts is to offer a “treatment based alternative to prison,” which consist of intensive treatment services, random drug testing, incentives
This is offered to provide an incentive for “good behaviour” and ultimately rehabilitation during a sentence. The granting and restriction of parole is outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW), and allows those with sentences of more than three years to be released after they have served their minimum sentences. The encouragement of rehabilitation upholds the rights of the community and offender, as the offender’s rights are not undermined by through excessively restricting their freedoms and the reintroduction of the rehabilitated offender into society minimises the threat of reoffending. However, the reward of parole for some offenders has resulted in community dissatisfaction. The Age article “Adrian Bayley should not have been on parole” represents a social concern regarding the leniency of parole for violent sexual offenders. The release of the evidently non-rehabilitated offender resulted in a breach of parole and the sexual assault and murder of Jill Meagher, a 29 year old Melbournian woman. As a result of the injustice of the lenient decision and subsequent community retaliation, new parole laws were introduced in Victoria during 2014. This legislation is outlined in the Corrections Amendment (Parole) Act 2014, and the penalty for breaching parole includes up to three months jail and/or a $4200 fine. Thus, there is greater justice for the victim and especially the community through the discouragement of crime for offenders who may not be rehabilitated and are released on
The judicial system is based off the norms and values that individuals are held to within society. When a person is found guilty of committing a criminal act, there must be a model that serves as the basis of what appropriate punishment should be applied. These models of punishment are often based off of ethical theories and include retribution, incapacitation, deterrence, rehabilitation, and restoration. The retribution model of punishment views the offender as responsible for their actions and as such, the punishment should fit the crime (Mackie, 1982). Incapacitation is a form of punishment that removes an offender from society. This model protects
In a modern Western society where there is significant amount of research done of rehabilitation and criminal justice reform, the practice of sentencing JLWOP (Juvenile Life Without Parole) seems outdated and primitive. There are a number of prominent human rights groups that advocate for the banning of the LWOP sentence for juvenile offenders. In his 2010 article for the Journal of Offender Rehabilitation titled ‘Extinguishing All Hope: Life-Without-Parole for Juveniles,’ Frank Butler breaks down the ethical arguments against the sentence from a social policy perspective. He uses a number of pertinent facts and dates to support and enhance his argument, but retains a clear and concise presentation style, making the document easy to read and comprehend on an analytical level. It is clear from his title that it is not an objective piece, but his opinion is supporte...
The aims of sentencing include punishment, deterrence, rehabilitation, denunciation and protection. Punishment is used to punish the offender for their wrong conduct to an extent and in a way that is just in all circumstances and is intended to show public abhorrence from the offence. An example of a sentencing option that may be used to punish an offender includes imprisonment. A recent sentence imposed in the Tasmanian Supreme Court aimed at punishing an offender is the case of Michael Robert Keeling v State of Tasmania in which the judge needed to balance the need to punish the offender and the need to deter him and others from such conduct while keeping the best interests of the community in mind. Deterrent sentences are aimed at deterring not only the offender from further offences but also potential offenders. Specific deterrence is concerned with punishing an offender in the expectation they will not offend again whereas general deterrence is related to the possibility that people in general will be deterred from committing crime by the threat of punishment. An example of ...
(Ochs, S. L., 2012). In certain cases, there was the moral and ethical responsibility of the court to decide whether rehabilitative efforts should be mandated, allowing juvenile murderers the opportunity to be ultimately released back into society, or if sentencing these juvenile murderers to serve a life term in prison as punishment was the better alternative. (Ochs, S. L., 2012).
The proliferation of harsh mandatory sentencing policies has inhibited the ability of courts to sentence offenders in a way that permits a more "problem solving" approach to crime, as we can see in the most recent community policing and drug court movements today. By eliminating any consideration of the factors contributing to crime and a range of responses, such sentencing policies fail to provide justice for all. Given the cutbacks in prison programming and rates of recidivism, in some cases over 60% or more, the increased use of incarceration in many respects represents a commitment to policies that are both ineffective and unfair. I believe in equal, fair and measured punishment for all. I don't advocate a soft, or a hard approach to punishment. But we must take a more pragmatic look at what the consequences of our actions are when we close our e...
Sigmund Freud known to be the father of Psychoanalysis , contributed a large deal of this research on the construct of the unconscious mind. Freud valued the effect that the id, ego and superego had on a pe...
By viewing the justice system from an equal justice perspective, truth in sentencing does not account for the criminal offender’s motives for breaking the law. A judge may believe it is morally right to lessen the punishment of an offender, who had good intentions for committing the crime. An individual may be placed in a circumstantially difficult situation, which could force them to commit a crime. Unfortunately for those individuals, truth in sentencing in the equal justice perspective does not allow for the judge’s discretion in that case. Therefore, if two people commit the same crime, yet one had negative intentions, he or she would face the same punishment as someone who did not have these intentions. A judge loses this power consider motive because all criminals of the same crime are viewed as equal. By restricting a judge’s discretion, it creates injustice within the courts. Actions are based on their motives and a judge should have the ability to consider it when making a decision that can greatly impact another individual’s life. Therefore, truth in sentencing and the equal justice perspective need the discretion of a judge to justly establish a fair sentence that accounts for all aspects of the individual and their
This approach has introduced a criminal justice policy agenda. In the past, victims to criminal activities have been outsiders to the criminal conflict. In recent times, many efforts have been made to give the victims a more central role in the criminal justice system. Some of these efforts were introduced a few years back, though even at that time, these efforts were seen as long overdue. Some of these efforts include access to state compensation and forms of practical support. For advocates of restorative justice, crime is perceived primarily as a violation of people and relationships, and the aim is to make amends for all the harm suffered by victims, offenders and communities. The most commonly used forms of restorative justice include direct mediation, indirect mediation, restorative cautioning, sentencing panels or circles and conferencing. In recent...
Before 1991, there was no statutory provision or general statutory framework comprising aims of sentencing which courts ought to rely upon. This had left the courts to decide on its own based on the facts of the case what is the best sentence for offender. However, by granting unlimited power of the court in fixing sentence, this caused uncertainty as on what basis the courts has reached upon such sentence. Hence, in 1991, CJA was set up in order to have a systematic approach to achieve aims of punishment. The main provisions under the 1991 Act were dominant by retributive theories which focused on sentences must commensurate with the seriousness of the offence. However, some parts of the legislation reflect utilitarian theories in the g...
Sentencing is the imposition of a criminal sanction by a sentencing authority , such as a judge. Schmallger & Smykla, 2009, pg# 71) There are seven goals of sentencing including revenge, retribution, just deserts, deterrence, incapacitation, rehabilitation and restoration. Revenge refers to a retaliation to some kind of assault and injury. Revenge can be a type of punishment for the criminal justice system. The jury, sometimes, basis there choices on emotions, facts and evidence. It is considered revenge in some cases because the victim's looks at it that way when they feel justice has been served. Retribution is a type of sentencing involving another form of retaliation. Retribution means "paying back" the offender for what he or she has done. ( Schmalleger & Smykla, 2009, pg# 73) The victim is not alone when it comes to being affected by the crime. Society is strongly affected by what a criminal does in whichever area he or she chooses. Retribution, in a good sense, would be if a coworker does her best as her job and her boss gave her a raise. This would be considered paying her back for her good deeds. As far as the criminal's heinous acts, retribution would more than likely be community service in the town were the crimes occurred. This form of sentencing gives a sort of relief to society
She explained that his involvement in the crime was not excessive and that it was his brother who was the leader. She went on to describe his eight previous arrests for crimes like robbery and cocaine possession. Given his long history she said she was not surprised to see him involved in this kind of case. Because of his other charges I thought the prosecutor was going to suggest the higher end of the sentencing guidelines. However, as she continued I realized I was incorrect. Instead of focusing on his previous crimes she talked about how he needed rehabilitation. She emphasized recovery from his current lifestyle more than sending him to prison again. She brought up his involvement in his church and his successful marriage and questioned why he would throw all of that away. She also suggested that he turn to his church and his wife for support and to aid him in his battle with addiction. Throughout the case, the prosecutor was compassionate and seemed more like a disappointed parent to the defendant rather than angry. The one time the prosecutor did act somewhat harsh was towards the middle of her statement. She brought up the fact that the defendant had previous medical conditions such as a stab and shot wounds. She suggested that the defense had asked for these injuries to be taken into account when the sentence was decided on. She was adamant that the court should not take
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,