Role of Discretion in Imposing Sentence in Australian Justice System

Running head: INTRODUCTION TO CRIMINOLOGY AND CRIMINAL JUTICE 0
introduction to criminology and criminal justice
MAY 30, 2018

INTRODUCTION TO CRIMINOLOGY AND CRIMINAL JUSTICE 1
Introduction-
The discretion refers to the judgement. It is called the art of suiting action to specific
circumstances. The discretion exists at various stages such as at the time of investigation, pre-
trial, sentence and the punishment. There are many advantages and disadvantages of the role
of discretion in the Australian justice system so it deals for justice to the individuals.
Generally, the discretion is called capability of a magistrate to decide how, where and what
severity to sentence a person who is guilty (Strange, 2011). In this essay, the role of
discretion in imposing the sentence and the impact of discretion decision on the other
discretion decision making is discussed and critically examined.
The role of discretion in respect of Sentence-
The discretion is explained by the process of the investigation, process of the criminal
trial, sentence and the punishment. The principle indicates powers in the respect of the
sentence. The court is required to apply the law which is imposed by the parliament. The
parliament is superior over the court in respect of the discretion of the judges to give
sentence. The sentence and punishment has involved the discretion of the magistrates to
decide the most appropriate sentence for the case. The discretion includes the power of
magistrates to decide the most suitable sentence for a case. The judges are allowed to take
decision about the sentence on the basis of the case and it permits the judges to consider the
various circumstances (Ross, 2015).
In case of R v Dean [2013] NSWSC 1027, the Roger Dean was punished to the life
time imprisonment as a victim of the eleven counts of the murder under section 61 of the
Crimes (Sentencing Procedure) Act 1999 (New South Wales). The section 61 of the Crimes
(Sentencing Procedure) Act 1999 (New South Wales) states the compulsory life

INTRODUCTION TO CRIMINOLOGY AND CRIMINAL JUSTICE 2
imprisonment for the certain offences. This example of compulsory sentence removes the
discretion. It shows that the discretion have no role in the compulsory imprisonment. For the
fair, reliable and consistent trial with guidelines and the judgements, the discretion is
removed in the compulsory discretion (Findlay, Odgers & Yeo, 2015). It adds value and the
effectiveness of the criminal trial process in imposing sentence and punishment of criminal.
The standard system directs the judicial discretion’s exercise in reference of the previous
judgement.
At the time of deciding the imprisonment for crime, the court is required to consider
the aggravating and mitigating factors in the case. These two factors can notify the
discretion’s exercise, leading to harsher or lenient penalty. The aggravating factors are
particular to the crime or the sufferer or the defendant which may offer the harsher penalty.
On the other hand mitigating factors warrant the more lenient penalty. There are many factors
to be considered in the both situations in respect of the criminal. And give powers to the
magistrate in respect of the discretion under section 21 A of the Crimes (Sentencing
Procedure) Act 1999 (New South Wales) (Joudo-Larsen, 2014). These two factors,
aggravating and the mitigating factors permit for the discretion to play an important role in
imposing the sentence and the punishment of the criminal, for a fair trial (Gelsthorpe &
Padfield, 2011).
The magistrate has a power of discretion to listen and consider the victim impact
statement in deciding the sentence for the victim (Prenzler & Sarre, 2015). These statements
are presented after the declaration of the crime of the victim and before impose the
imprisonment. In the case of McCartney v R (2009) NSWCCA 244, a person found guilty of
the sexual assault. The court considered the aggravating and mitigating factors and gave
punishment of the two years imprisonment (Travis & Edwards, 2015). The court also
considered the victim impact statement and decided that the life of sufferer has been