Mandatory Sentencing and Wrongful Conviction in Australian Law

This article discusses the impact of mandatory sentencing and wrongful conviction in Australian law. It covers the principles of proportionality, the effects of mandatory sentencing, and the need for legislative reforms to reduce wrongful convictions.

MANDATORY SENTENCING AND WRONGFUL CONVICTION IN AUSTRALIAN LAW 1
MANDATORY SENTENCING AND WRONGFUL
CONVICTION IN AUSTRALIAN LAW
by Name
Course Name
Professors Name
University
City and State
Date

MANDATORY SENTENCING AND WRONGFUL CONVICTION IN AUSTRALIAN LAW 2
Question 1: Mandatory sentencing
Mandatory sentencing implies that a person convicted of a crime must be imprisoned for
a defined period of time, as opposed to leaving the determination of the length of punishment to
the judges. An example of such is sentencing for cocaine possession which is a minimum of
five-year jail term as defined by law. These sentences force the judges to deliver a fixed verdict
on offenders regardless of how punishable the offense is or without consideration of other
litigation factors. The mandatory sentencing is considered as one of the significant factors
contributing to prison crowding and racial disparities on the convictions of such offenders (ABC
News, 2018).
The effects of principles of proportionality.
The principle of proportionality require judges to determine whether the sentence is
proportional to the crime committed (Harbo, 2010). There are no defined guidelines in
measuring crime; however, there are three viewpoints to consider in measuring proportionality:
the first viewpoint is the effect on the person being convicted; secondly the effect on the entire
society and lastly the victim’s viewpoint.
The principle has a direct impact on the offender, the community, and the victims, and
therefore its application must comply with the legislative guiding tenets (Harbo, 2010).
According to Anđelković, (2017), there is a general perception that the wrong application of the
principle of proportionally and the mandatory sentencing law are the leading causes of the
growth in prison population. The same has also been seen as the leading reason for the racial
disparities in sentencing.
Question 2: Wrongful conviction

MANDATORY SENTENCING AND WRONGFUL CONVICTION IN AUSTRALIAN LAW 3
From the growing numbers noted regarding cases of wrongful convictions, there is a
great need to initiate legislative reforms to reduce and reverse the trend. These cases are a blow
to the image of the judicial system in Australian. The fundamental pillars of the Australian legal
system are a fair trial, impartiality and the integrity of the judicial system. The need for reforms
in the judicial system is to increase the number of available avenues for victims to seek redress.
The lack of exoneration legislations has led to an increase in the number of such cases
since the judges involved in these cases and the investigative authorities have always not
culpable. Weathered (2013) states that; despite the efforts, Australia still falls behind its global
counterparts in the implementation of reforms aimed at better identification, and correction of
wrongful convictions.
In the Australian law, there is no provision for a second appeal once the first one has been
exercised, even when fresh evidence is discovered. The issue has resulted in several people
serving full sentences even when the new evidence exonerates them. As a result, the taxpayer
bears the burden of taking care of those wrongfully convicted unnecessarily (The Conversation,
2018). The families of the condemned are affected, and the society is equally denied the
opportunity to benefit from the productivity of its population who are in prison for no
wrongdoing.
The main available options for those who are wrongfully convicted are the petition for
pardon and appeal for mercy. According to Kennedy, (2016) this options needs to be expanded
to include compensation and punishment of the participants in the case.

MANDATORY SENTENCING AND WRONGFUL CONVICTION IN AUSTRALIAN LAW 4
Bibliography
ABC News. (2018). Mandatory sentencing 'increases prison numbers'. [online] Available
at: http://www.abc.net.au/news/2014-05-28/mandatory-sentencing-increases
-prison-numbers/5485292 [Accessed 21 May 2018].
Anđelković, L. (2017). THE ELEMENTS OF PROPORTIONALITY AS A PRINCIPLE OF
HUMAN RIGHTS LIMITATIONS. Facta Universitatis, Series: Law and Politics, p.235.
Harbo, T. (2010). The Function of the Proportionality Principle in EU Law. European
Law Journal, 16(2), pp.158-185.
Kennedy, D. (2016). Wrongful Conviction Litigation: A Criminological
Perspective. SSRN Electronic Journal.
The Conversation. (2018). Truth or lies: overturning wrongful convictions. [online]
Available at: https://theconversation.com/truth-or-lies-overturning-wrongful-
convictions-20430 [Accessed 21 May 2018].
Weathered, L. (2013). The Growing Acknowledgement of Wrongful Conviction – The
Australian Response Within an International Context. Victoria University Law and
Justice Journal, 3(1).