The Role of Discretion in The Criminal Justice System

Discretion is played throughout the sentencing and punishment of offenders. Discretion refers to having the authority or right to determine or act according to one\’s own judgement. Many factors influence the role discretion plays or alternatively doesn’t play in the sentencing and punishment of offenders. This includes statutory guidelines, mandatory sentencing, aggravating and mitigating circumstances and the use of victim impact statements. In terms of Statutory guidelines a number of acts inform the exercise of Judicial discretion. Furthermore , The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in NSW.

It sets out the purposes for which a sentence and types of penalties may be imposed, when they can be used and also recommends general guidelines in relation to sentencing.

As well as, The Young Offenders Act 1997 (NSW) is known to be where it allows for discretion in the system to punish children in order to rehabilitate them. However, the use of discretion can be both effective and ineffective.

Consistency is the greatest challenge for effective discretion. The statute that is mainly the source of sentencing law in NSW is The Crimes Act 1999 (NSW). This act authorises the maximum sentence which may be applied for numerous offences. Moreover, the Crimes Act 1999 NSW also authorises common guidelines linked to sentencing. The role of discretion in the criminal justice system outlines what may form an aggravating or mitigating situation. The penalty known as \”no conviction recorded\” is an example of a judge\’s use of discretion in sentencing.

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While the offence is discovered to be proved, no conviction is recorded by the court and thus the offender doesn\’t obtain a criminal record.

Furthermore, in NSW, victims of crime are known and assured specific rights below the Victim Rights Act 1996 (NSW). The charter also presents victim impact statements, in which gives the right for the victim to have a chance to contribute in the development by allowing the court to realise how the crime has had an impact on them. Moreover, discretion is played in sentencing and punishment by not just the judge or magistrate, but the police can play that role in punishing as well.The police can give the punishment without having to go to court and so they apply discretion. For example, the penalty \”caution\” is known to be where the police have the authority to caution children and young individuals linking to non-violent and summary offences. A caution is informally noted on the person\’s record. In addition, the Young Offenders Act 1997 (NSW) allows for discretion in the system to punish children via youth justice conferences, warnings and cautions to rehabilitate them. This illustrates an effective application of discretion for the constructive purpose of rehabilitating young offenders. If a plea of guilty has arrived or the young individual is discovered to be found guilty of a crime, magistrates will apply numerous penalties which is their discretion.

A few include them being placed on a good behaviour bond or them being cautioned. The judge or magistrate has discretion as to which purpose of punishment is the most appropriate, given the circumstances of the case, providing balance between the rights of offenders, victims and society. Mandatory sentencing removes discretion, In some circumstances, based on the changing values of society and to deter others from committing crime. This can lead to an inflexible approach to sentencing. Statutory guidelines can be seen to hinder the amount of discretion given to Judicial officers. However, Mandatory sentencing completely removes discretion by setting a minimum or mandatory sentence for a particular offence or type of offender. In this respect, discretion does not have a role in the sentencing and punishment of offenders and is instead left up to an automatic sentence set by parliament. In the case of R v Dean, the offender Roger Dean (2013) was sentenced to life imprisonment under section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), after he pleaded guilty to eleven counts of murder. This case falls under section 61 of the Crimes Act, which is “Mandatory life sentences for certain offences” and is therefore an example of mandatory sentencing removing discretion. Discretion, therefore, plays no role in mandatory sentencing, however it is removed to keep trials fair and consistent, as with statutory guidelines and guideline judgements. Ultimately adding to the effectiveness of the criminal trial process in the sentencing and punishment of offenders. The system of precedent guides the exercise of judicial discretion with reference to previous decisions. In determining the appropriate sentence for an offence, the court must take into account the aggravating and mitigating factors in the case. Aggravating and mitigating factors can inform the exercise of discretion, leading to either harsher or lenient penalties.

Aggravating factors are those particular to the offence, the victim or the defendant which may warrant a higher penalty. Mitigating circumstances differ in the fact that they offer more lenient penalties. Both circumstances have various factors to be considered in relation to the offender and the victim, and in turn give the judge the power of discretion, referring to relevant precedent guides, under section 21 A of the Crimes (Sentencing Procedure) Act 1999 (NSW).This gives the judicial officer the ability to take into account the numerous aspects of the case and in particular, the offence and the accused’s circumstances. the aggravating or mitigating factors in a case, allows for discretion to play a more prominent role in the sentencing and punishment of offenders, allowing for a fair trial. In NSW, victims of crime are recognised and guaranteed certain rights under the Victim Rights Act 1996 (NSW). The Act contains a Charter of Victim’s Rights which requires, among a number of things, respect for a victim’s dignity, victim’s compensation, protection from the accused, protection of identity and assistance during the criminal process.

The Charter also introduces victim impact statements, which allows the victim an opportunity to participate in the process by letting the court know how the crime has affected them. The judge has a discretion to hear and to take into account a victim impact statement in determining the sentence. Victim impact statements are only permitted for serious offences and are presented after the offender is found guilty, before the sentence is passed. In the case of McCartney v R (2009) A male found guilty of sexual assault was sentenced to 2 years imprisonment, after the aggravating factors were considered, including the victim impact statement, it was concluded by the judge that the victim’s “life and studies have been totally disrupted by the event and suffered considerable distress.” The victim impact statement in this case influenced the sentence and the judge was able to effectively use his discretion to determine the best sentence for both the offender and the victim, by taking into account both the mitigating and aggravating factors. Victim impact statements have thus proven an effective method of restoring justice to the victim and the community, by taking into account the impact the crime had on the victim.

Discretion in relation to victim impact statements has ultimately had the role of considering the victim in the case and how it has impacted upon their lives, in turn affecting the sentencing and punishment given to offenders. On the whole, discretion can be seen to be relatively effective in the role it plays in the sentencing and punishment of offenders. Although it does not have a role in mandatory sentencing and is limited by statutory guidelines and guideline judgements in the role it does play within the justice system. It is limited and removed to reduce the amount of deviation in cases with similar circumstances. Aggravating and mitigating factors along with the use of victim impact statements, see an effective use of discretion in the role of the sentencing and punishment of offenders. This is done allowing the judicial officer to consider all the facts in the case, including the impact the crime had on the victim, and determine the most appropriate sentence.

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The Role of Discretion in The Criminal Justice System. (2020, Sep 07). Retrieved from

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