NCJ Number
62962
Date Published
1979
Length
137 pages
Annotation
THE NATURE AND EXTENT OF SENTENCING DISCRETION IS STUDIED IN RELATION TO THE LAW REFORM COMMISSION'S SENTENCE REFERENCE; REDUCTION OF UNJUSTIFIED DISPARITIES IN THE AUSTRALIAN SENTENCING PROCESS IS ADVOCATED.
Abstract
THE ROLE OF THE LEGISLATURE IN GUIDING DISCRETION IS SUCH THAT STATUTORY GUIDELINES ARE DESIRABLE IF NOT TOO SPECIFIC AND THE LEGISLATURE SHOULD ENSURE THAT MAXIMUM PENALTIES ACCORD WITH JUDICIAL PRACTICE. REVIEW OF THE COMMON LAW SYSTEM AS IT OPERATES IN CONJUNCTION WITH APPELLATE REVIEW OF SENTENCE IN AUSTRALIA, INDICATES THAT JUDICIAL DISCRETION IS NOT AS UNRESTRICTED AS IMAGINED. THE REQUIREMENT THAT JUDGES MUST APPLY SENTENCING PRINCIPLES IN DELIBERATIONS PROVIDES LIMITS TO THE MAXIMUM AND SOMETIMES THE MINIMUM SENTENCE. HOWEVER, A MORE BROADLY BASED APPEAL JURISDICTION WOULD FURTHER LIMIT JUDICIAL DISCRETION AND PROVIDE GREATER CONSISTENCY IN SENTENCING DECISIONS. A NUMBER OF DEVELOPMENTS IN THE UNITED STATES ADVOCATING VARIOUS FORMS OF GUIDELINES COULD BE USEFUL. STATUTORY PRESUMPTIVE SENTENCING SCHEMES SUGGEST THAT THERE IS A NEED TO MORE CAREFULLY DEFINE OFFENSES AND THEIR PENALTIES. LEGISLATION SHOULD PRESCRIBE MAXIMUM PENALTIES ONLY, ALLOWING COURTS TO IMPOSE LESS SEVERE SANCTIONS. THE PRINCIPLES OF SENTENCING AND APPEAL COURT SCRUTINY WOULD PREVENT ABUSES OF JUDICIAL DISCRETION. THE DEVELOPMENT OF JUDICIAL GUIDELINES IS ADVOCATED; FORMULATED FROM AN ANALYSIS OF ACTUAL SENTENCING CASES, BUT NOT BINDING ON THE COURTS, THEY CAN BE USED AS AN ADDITIONAL AID IN SENTENCING AND CAN BE MODIFIED IF COURTS REFUSE TO FOLLOW THEM. THE USE OF ADEQUATE STATISTICS, A SYSTEM OF SENTENCING COUNCILS IN WHICH JUDGES DISCUSS SENTENCES WITH COLLEGUES, AND THE ESTABLISHMENT OF A SENTENCING COMMISSION OR INSTITUTE TO ANALYZE SENTENCES AND PRODUCE GUIDELINES, WOULD ALL CONTRIBUTE TO A MORE JUST SYSTEM OF SENTENCING IN AUSTRALIA. TWO APPENDIXES CONTAIN A DEFENSE FORCE DISCIPLINARY CODE AND SUBMISSIONS FOR PAROLE. (MJW)