Controlling Judicial Discretion

Published on 20 November 2017 at 7:08pm

The law should not confine, direct and control the exercise of judicial discretion to the extent that it breaches the separation of powers principle or prevents the attainment of justice in each individual case. The law should not allow purposes of deterrence and consistency to take precedence over rehabilitation, proportionality and the rule of law. Mandatory sentencing legislation in NSW exemplifies the undesirability of inflexibly confining judicial discretion in order to meet community expectations. Guideline judgements and standard non-parole periods provide a greater degree of flexibility but, in their current form, these schemes still place undue weight on consistency over individualised justice. 

I        Mandatory Sentencing Mandatory sentencing is objectionable even if Parliament’s intention is to fulfil the purposes of maximising deterrence and ensuring consistency.[1] It potentially confines judicial discretion to the extent of amounting to a breach of the separation of powers principle. Former Australian Human Rights and Freedom Commissioner, Mr Tim Wilson argued that mandatory sentencing ‘is an incremental stake stabbed in the heart of the foundations of our liberal democracy’ as it is based on the assumption that ‘a centralised government with less information can make better decisions about individual cases than decentralised courts with more information’.[2] Moreover, research indicates that mandatory minimum prison terms do not achieve the desired purpose of deterrence.[3] Even if mandatory sentencing is constitutionally valid and achieves the purpose of general and specific deterrence, it has the potential to undermine the rule of law and the purpose of achieving individual justice for an accused person.[4] It also challenges the notion that imprisonment is an option of last resort and prevents a judicial officer from considering aggravating, mitigating and other factors when determining a sentence.[5] Moreover, on a practical note, mandatory sentences carrying a term of imprisonment can be a significant drain on the economy, for example nationally in 2013-14 the total cost per prisoner per day was $292 amounting to $106,288 annually.[6]

Despite this extensive evidence that the law should not confine judicial discretion merely for the purpose of deterrence and consistency, in 2014 the New South Wales government introduced a mandatory minimum sentence of eight years for offenders who commit an assault causing death while intoxicated.[7] These laws largely reflected community expectations at the time as they were arguably enacted in response to the ‘penal populist campaign’ surrounding the sentencing of Kieran Loveridge for the manslaughter of Thomas Kelly.[8] Associate Professor Julia Quilter asserts that ‘the haste with which the legislation was drafted, passed and commenced is directly related to the intense media and public campaign that was triggered by the sentencing [of Kieran Loveridge]’.[9] The community undoubtedly placed significant pressure on the NSW Government to ensure offenders of ‘one-punch deaths’ faced more severe penalties.[10] The Government’s ‘volatile knee-jerk reaction’ to community anxiety relating to alcohol-fuelled violence without careful consideration, broader discussion or even expert input by bodies such as the New South Wales Law Reform Commission, has been widely condemned.[11] The Law Council of Australia stated that mandatory sentencing does not strike the right balance as it ‘impose[s] unacceptable restrictions on judicial discretion and independence, and undermine[s] fundamental rule of law principles’.[12] The laws enacted in 2014 may have reflected community expectations but, as the Law Council argues, they in fact ultimately undermine community confidence in the institutional integrity of the courts as they create arbitrary outcomes that are often not proportionate to the crime.[13] Proportionality is a crucial principle of sentencing and it cannot be achieved through mandatory sentencing legislation hastily created in direct response to community outrage and fear. The public is often greatly misinformed about matters of crime and justice so the law should not exclusively reflect community expectations by rapidly implementing public calls for harsher sentences when the public perceives the courts to be too lenient.[14] In fact, research indicates that when the public is fully informed about the specific circumstances of an individual case, they will support the judge’s sentences as appropriate.[15] Ultimately, the right balance has clearly not been struck in mandatory sentencing legislation in NSW as the pressure of community expectations has ultimately outweighed the importance of ensuring the judicial discretion to consider a multiplicity of established purposes for which a court may impose a sentence on an offender.[16]

II      Guideline Judgments Guideline judgments are considered to be a valuable alternative to mandatory sentences as they ‘structure’, rather than ‘restrict’, the exercise of judicial discretion while maintaining the purposes of consistency, deterrence and promoting public confidence in the administration of justice.[17] In 2013, the Law Reform Commission commended the utility of guideline judgments in encouraging greater consistency and guiding judicial discretion in sentencing by providing numerical ranges and outlining overarching principles.[18] This scheme has been praised for maintaining the rule of law, promoting public confidence in the administration of criminal justice, encouraging deterrence by increasing public knowledge about sentencing and decreasing the number of appeals.[19] Although empirical evidence demonstrates that guideline judgements have increased consistency in sentencing, they have also inevitably resulted in harsher penalties.[20] Therefore, it could be argued that despite the benefits of guideline judgments, they place undue emphasis on consistency over individual justice. Nevertheless, these guidelines undoubtedly provide far more flexibility than mandatory sentencing, as they guide rather than restrict the exercise of judicial discretion and allow the courts to place greater emphasis on the objective of rehabilitation in addition to denunciation, deterrence and retribution.[21]

III     Standard Non-Parole Periods (‘SNPPs’) Similar to judicial guidelines, SNPPs prioritise uniformity and consistency in sentencing and aim to provide ‘further guidance and structure’, rather than confine judicial discretion.[22] Research indicates that SNPPs have achieved the aim of improving consistency through an increase in the number of guilty pleas as well as a growth in ‘the severity of penalties imposed and the duration of sentences of full-time imprisonment’.[23] It remains to be seen whether this consistency is simply ‘benign’, involving similar treatment for like cases and dissimilar treatment for different cases.[24] Whether or not this consistency is ‘benign’, the scheme has been criticised as arbitrary, punitive and based on the erroneous assumption that community expectations demand higher penalties for serious crimes.[25] SNPPs appear to be arbitrary to the extent that not all serious offences are included in the scheme, many offences have the same maximum penalties but varying SNPPs, and the process of determining SNPPs is not transparent.[26] Nevertheless, in comparison to mandatory sentencing, SNPPs direct judicial discretion to a reasonable extent as they do not have determinative significance but act simply as ‘guideposts’.[27]

In conclusion, the separation of powers principle demands that the law should not confine or control judicial discretion in sentencing but should aim only to direct or guide such discretion. Moreover, the implementation of mandatory sentencing for assault causing death while intoxicated demonstrates that the right balance has not been struck in NSW because community expectations should be considered as simply one relevant factor in sentencing, rather than the sole factor. Ultimately, the purposes of ensuring public confidence, consistency, deterrence, denunciation and retribution should not outweigh the importance of fundamental principles of the rule of law as well as rehabilitation and attaining individual justice.

[1] Adam Butt, ‘Structuring Discretion in Sentencing’ (2014 Summer) Bar News: Journal of the NSW Bar Association 18, 18. [2] Tim Wilson quoted in Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014) 47. [3]  Patricia Menendez and Don James Weatherburn, ‘Does the threat of longer prison terms reduce the incidence of assault?’ (2016) 49(3) Australian & New Zealand Journal of Criminology 389, 401; Michael Tonry, ‘The mostly unintended effects of mandatory penalties: Two centuries of consistent findings’ In Michael Tonry (ed), Crime and justice: A review of research (Chicago: University of Chicago Press, 2009) vol. 38: 65, 100. [4] Ibid. [5] Ibid; See also: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1) and 21A. [6] Australian Government Productivity Commission, Report on Government Services (2015) 8.2.3. [7] See: Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). For further mandatory sentencing in NSW see: Crimes (Sentencing Procedure) Act 1999 (NSW) s 61; Crimes Act 1900 (NSW) s 19B. [8] Julia Quilter, ‘One Punch Laws, Mandatory Minimums and “Alcohol-Fuelled” as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81, 84. [9] Ibid. [10] See: Ibid 86. [11] See for example: Ibid 100. [12] Law Council of Australia, above n 26, 5. [13] Ibid 47. [14] George Zdenkowski, ‘Limiting Sentencing Discretion: Has there been a paradigm shift?’ (2000) 12(1) Current Issues in Criminal Justice 58, 68; Hilde Tubex, ‘Mandatory sentencing leads to unjust, unfair outcomes – it doesn’t make us safe’, The Conversation (online), 5 January 2016 <https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086&gt;. [15] K Warner, J Davis, M Waler, R Bradfield and R Vermey, ‘Public Judgement on Sentencing: Final results of the Tasmanian Jury Study’ (Trends and Issues in Crime and Criminal Justice No 407, Australian Institute of Criminology, 2011)3. [16] See: Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A. [17] James Spigelman, ‘Sentencing Guideline Judgements’ (1999) 11(1) Current Issues in Criminal Justice 5, 6; R v Jurisic (1998) 45 NSWLR 209, 220 per Spigelman CJ. [18] New South Wales Law Reform Commission, Sentencing, Report No 139 (2013) 390. [19] See: Ibid; Butt, above n 25, 19; Spigelman, above n 41. [20] See: Butt, above n 25, 19. [21] Spigelman, above n 41. [22] New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 2002, 5813 (Robert John Debus). [23] Patrizia Poletti and Hugh Donnelly, ‘The Impact of the Standard Non-Parole Sentencing Scheme on Sentencing Patterns in NSW’ (Monograph Series No 33, Judicial Commission of New South Wales, 2010) 60-61. [24] Ibid. [25] See: Butt, above n 25, 20. [26] See: Ibid. [27] See: Muldrock v The Queen (2011) 244 CLR 120;Ibid.

REFERENCE LIST A Articles/Books/Reports Butt, Adam, ‘Structuring Discretion in Sentencing’ (2014 Summer) Bar News: Journal of the NSW Bar Association 18 Menendez, Patricia and Don James Weatherburn, ‘Does the threat of longer prison terms reduce the incidence of assault?’ (2016) 49(3) Australian & New Zealand Journal of Criminology 389 Poletti, Patrizia and Hugh Donnelly, ‘The Impact of the Standard Non-Parole Sentencing Scheme on Sentencing Patterns in NSW’ (Monograph Series No 33, Judicial Commission of New South Wales, 2010)  Quilter, Julia, ‘One Punch Laws, Mandatory Minimums and “Alcohol-Fuelled” as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81 Tonry, Michael, ‘The mostly unintended effects of mandatory penalties: Two centuries of consistent findings’ In Michael Tonry (ed), Crime and justice: A review of research (Chicago: University of Chicago Press, 2009) Tubex, Hilde, ‘Mandatory sentencing leads to unjust, unfair outcomes – it doesn’t make us safe’, The Conversation (online), 5 January 2016 <https://theconversation.com/mandatory-sentencing-leads-to-unjust-unfair-outcomes-it-doesnt-make-us-safe-52086&gt; Warner, K, Davis, J, Waler, M, Bradfield, R and R Vermey, ‘Public Judgement on Sentencing: Final results of the Tasmanian Jury Study’ (Trends and Issues in Crime and Criminal Justice No 407, Australian Institute of Criminology, 2011) Zdenkowski, George, ‘Limiting Sentencing Discretion: Has there been a paradigm shift?’ (2000) 12(1) Current Issues in Criminal Justice 58

B Cases Muldrock v The Queen (2011) 244 CLR 120 R v Jurisic (1998) 45 NSWLR 209

C Legislation Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)

D Other Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014) New South Wales Law Reform Commission, Sentencing, Report No 139 (2013) New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 2002, 5813 (Robert John Debus)