Magistrates and judges have a significant amount of power when presiding over cases. That power ranges from determining what evidence can be used in court, right up to the appropriate penalty that a particular defendant should be given if they plead guilty or are found guilty.
Judicial discretion is an important aspect of the sentencing process – applying the same penalty in every case would lead to unfair outcomes because the circumstances of each defendant and offence vary.
Discretion in Sentencing
Former NSW Chief Justice Anthony Murray Gleeson – who later become Chief Justice of the High Court of Australia – stated that judicial discretion is most important – and most difficult to sustain – during the sentencing process.
Maximum penalties, as set out in statutes, are just that: the absolute maximums. When determining a particular penalty, courts are required to take into account a whole range of factors – from the nature of the offending conduct itself, to any prior criminal history of the offender, to whether or not he or she pleaded guilty, and of course subjective (personal) factors.
But judicial discretion can lead to inconsistent sentences – with courts sometimes imposing completely different penalties when faced with similar sets of circumstances.
Severity Appeals
If someone is unhappy about the penalty received in the Local court, they have the right to appeal to the District court within 28 days to ask for a more lenient one. Significantly, the District court judge must give a warning before imposing a harsher sentence, at which time the appellant can seek permission to withdraw the appeal. This, in effect, means that sensible appellants (or their lawyers) will prevent a more severe penalty from being imposed.
However, sentences handed down by the District court can be harder to successfully appeal to the Supreme court.
Even if the Supreme Court judge would have handed down a different penalty, this may not be enough to overturn the District court’s decision. Rather, the penalty must have been manifestly excessive for the appeal to succeed.
Mandatory Sentencing
Mandatory sentences take discretion away from judges and magistrates.
Examples of mandatory sentencing include the eight-year minimum prison term prescribed for those who assault and cause the death of another while drunk – also known as the ‘one-punch laws’. And anyone who is guilty of a drink driving offence must receive at least a minimum period of disqualification from driving, unless they are able to persuade the court to grant a section 10 dismissal or conditional release order in NSW-which means guilty but no criminal conviction or licence disqualification.
In a 1981 case, the Chief Justice of the High Court of Australia, Harry Gibbs, said that imposing fixed sentences:
“would lead to results that would be plainly unreasonable and unjust… there may exist wide differences in the degree of culpability of particular offenders so that in principle there is every reason for allowing a discretion to the judge of trial to impose an appropriate sentence not exceeding the statutory maximum…
The provision of a maximum punishment would allow the trial judge to exercise a proper discretion as to sentence in light of all the circumstances, and this is particularly desirable where a number of different acts, some more blameworthy than others, fall within the definition of the crime.”
Accordingly, legislation is not to be interpreted as prescribing mandatory penalties unless it is clearly stated.
The practice has been introduced – and criticised – both in Australia and overseas, because it fails to allow for the tailoring of penalties to fit each defendant, especially those whose circumstances call for a degree of leniency.
