A Comment on the Coursad's Chief Justice McLachlin
Added on 2022-10-19
10 Pages2926 Words472 Views
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MIGRATION LAW
Implication of mandatory
sentencing on judicial officers while
sentencing
ESSAY
Implication of mandatory
sentencing on judicial officers while
sentencing
ESSAY
Migration Law
Justice McLachlin, the Chief Justice of the Supreme court of Canada quoted “A person
cannot be made to suffer a grossly disproportionate punishment simply to send a message to
discourage others from offending”. In the regular terms it is not common for the courts to
levy minimum mandatory penalties for offences commenced under the criminal law. The rule
of mandatory sentencing demands the judiciary to pronounce a minimum or a fixed term of
imprisonment for the offenders on the repetitive commencement of an offence. There has
been a long on-going debate in context of workability of this rule amongst the academicians
and the policy makers who try to analyse the impact of such a rule. And though different
nations have different policies in treating crime and have varying methods of sentencing but
majority of the experts believe over the fact there is no clear in nexus in between such a
stringent penalising process and deterrence in crime (Anderson, 2014).
It is strongly contested that in comparison to such mandatory sentencing, the number of
criminals deter more rapidly and effectively by enhancing their probability of conviction.
This rule not only leads to debarring the judiciary from delivering their expertise knowledge
in a case but also defeats the concept of check and balance existing in between the two tiers
of a democracy called as judiciary and legislature (Brown, 2017).Certain strong and
unavoidable arguments (for e.g. mandatory sentencing is a big threat to the concept and
application of the concept of rule of law; such a mandate for sentencing attract inconsistency
for the system to cope up with Australian International obligation and finally with its
application in judiciary, the entire system faces heavy an economic burden) are discussed in
detail. In the following essay, the theory of mandatory sentencing has been proven not only
as a threat for the vulnerable and racially minor section of the society but also a concept that
fails to prove that such fixed minimum sentencing is helping the law to deter crime rate in
fact.
1 | P a g e
Justice McLachlin, the Chief Justice of the Supreme court of Canada quoted “A person
cannot be made to suffer a grossly disproportionate punishment simply to send a message to
discourage others from offending”. In the regular terms it is not common for the courts to
levy minimum mandatory penalties for offences commenced under the criminal law. The rule
of mandatory sentencing demands the judiciary to pronounce a minimum or a fixed term of
imprisonment for the offenders on the repetitive commencement of an offence. There has
been a long on-going debate in context of workability of this rule amongst the academicians
and the policy makers who try to analyse the impact of such a rule. And though different
nations have different policies in treating crime and have varying methods of sentencing but
majority of the experts believe over the fact there is no clear in nexus in between such a
stringent penalising process and deterrence in crime (Anderson, 2014).
It is strongly contested that in comparison to such mandatory sentencing, the number of
criminals deter more rapidly and effectively by enhancing their probability of conviction.
This rule not only leads to debarring the judiciary from delivering their expertise knowledge
in a case but also defeats the concept of check and balance existing in between the two tiers
of a democracy called as judiciary and legislature (Brown, 2017).Certain strong and
unavoidable arguments (for e.g. mandatory sentencing is a big threat to the concept and
application of the concept of rule of law; such a mandate for sentencing attract inconsistency
for the system to cope up with Australian International obligation and finally with its
application in judiciary, the entire system faces heavy an economic burden) are discussed in
detail. In the following essay, the theory of mandatory sentencing has been proven not only
as a threat for the vulnerable and racially minor section of the society but also a concept that
fails to prove that such fixed minimum sentencing is helping the law to deter crime rate in
fact.
1 | P a g e
Migration Law
“Mandatory sentence” can be defined as the kind of sentence which the deciding judicial
officers are bound to implement regardless of the nature of the crime. Hence the judicial
authority cannot rationally use it’s discretionally power in order to decide a sentence
depending on nature of the offence. This mandatory sentencing can vary depending upon the
nature of the law i.e. federal or state. Therefore, under Mandatory sentencing, the criminal
will be serving a minimum year of imprisonment unaffected by parole, probation or wave off
(D'Ascoli, 2011).Mandatory sentencing is not new and existed since 1970s era. The main
objective was to control the increasing violent drug related offences and establish a uniform
punishment for the same across the country. This rule dealing with serious and intense
offences under the federal law has been into existence since the age of republic. But soon, the
practicality of assumption that more number of offenders will be prosecuted leading to
deterrence in the crime rate appeared hazy. Moreover, it bought severe prosecution to the
petty offenders and challenges for the ones who were eligible for a parole.
Introduced in the era of 1990s, in the regions of Northern territory the minimum sentence
which was mandatory in the cases of crime regarding property was firstly implemented in
1997 but was soon overruled in the year 2001.Under this rule, the individuals proved as
offenders for property related offences, were booked for 14 days under the first
commencement, a term of 20 days for the second and finally for a 12 months period on the
third strike (Gans, 2012).In the territories of Western Australia, the legislation introduced a
“three strike and you are in” rule concerning offences of burglaries in homes during 1996.A
person who had performed burglaries twice in the past, had to undergo a minimum of 12
months of imprisonment if one was found guilty in the third time (Frase, 2013).
Referring to the global implications, a lot many states in the U.S had adopt mandatory
sentencing for curbing crimes like murder, forgery in terms of state securities, slavery and
more. The limitations on the discretionary ability of the deciding authorities were extended
2 | P a g e
“Mandatory sentence” can be defined as the kind of sentence which the deciding judicial
officers are bound to implement regardless of the nature of the crime. Hence the judicial
authority cannot rationally use it’s discretionally power in order to decide a sentence
depending on nature of the offence. This mandatory sentencing can vary depending upon the
nature of the law i.e. federal or state. Therefore, under Mandatory sentencing, the criminal
will be serving a minimum year of imprisonment unaffected by parole, probation or wave off
(D'Ascoli, 2011).Mandatory sentencing is not new and existed since 1970s era. The main
objective was to control the increasing violent drug related offences and establish a uniform
punishment for the same across the country. This rule dealing with serious and intense
offences under the federal law has been into existence since the age of republic. But soon, the
practicality of assumption that more number of offenders will be prosecuted leading to
deterrence in the crime rate appeared hazy. Moreover, it bought severe prosecution to the
petty offenders and challenges for the ones who were eligible for a parole.
Introduced in the era of 1990s, in the regions of Northern territory the minimum sentence
which was mandatory in the cases of crime regarding property was firstly implemented in
1997 but was soon overruled in the year 2001.Under this rule, the individuals proved as
offenders for property related offences, were booked for 14 days under the first
commencement, a term of 20 days for the second and finally for a 12 months period on the
third strike (Gans, 2012).In the territories of Western Australia, the legislation introduced a
“three strike and you are in” rule concerning offences of burglaries in homes during 1996.A
person who had performed burglaries twice in the past, had to undergo a minimum of 12
months of imprisonment if one was found guilty in the third time (Frase, 2013).
Referring to the global implications, a lot many states in the U.S had adopt mandatory
sentencing for curbing crimes like murder, forgery in terms of state securities, slavery and
more. The limitations on the discretionary ability of the deciding authorities were extended
2 | P a g e
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