skip navigation

PUBLICATIONS

Register for Latest Research

Stay Informed
Register with NCJRS to receive NCJRS's biweekly e-newsletter JUSTINFO and additional periodic emails from NCJRS and the NCJRS federal sponsors that highlight the latest research published or sponsored by the Office of Justice Programs.

NCJRS Abstract

The document referenced below is part of the NCJRS Virtual Library collection. To conduct further searches of the collection, visit the Virtual Library. See the Obtain Documents page for direction on how to access resources online, via mail, through interlibrary loans, or in a local library.

 

NCJ Number: 62962 Find in a Library
Title: LIMITING SENTENCING DISCRETION - STRATEGIES FOR REDUCING THE INCIDENCE OF UNJUSTIFIED DISPARITIES - AUSTRALIA
Author(s): I POTAS
Corporate Author: Australia Law Reform Cmssn
Australia
Date Published: 1979
Page Count: 137
Sponsoring Agency: Australia Law Reform Cmssn
Sydney ,NSW, Australia
Publication Number: RESEARCH PAPER NO 7
Format: Document
Language: English
Country: Australia
Annotation: THE NATURE AND EXTENT OF SENTENCING DISCRETION IS STUDIED IN RELATION TO THE LAW REFORM COMMISSION'S SENTENCE REFERENCE; REDUCTION OF UNJUSTIFIED DISPARITIES IN THE AUSTRALIAN SENTENCING PROCESS IS ADVOCATED.
Abstract: THE ROLE OF THE LEGISLATURE IN GUIDING DISCRETION IS SUCH THAT STATUTORY GUIDELINES ARE DESIRABLE IF NOT TOO SPECIFIC AND THE LEGISLATURE SHOULD ENSURE THAT MAXIMUM PENALTIES ACCORD WITH JUDICIAL PRACTICE. REVIEW OF THE COMMON LAW SYSTEM AS IT OPERATES IN CONJUNCTION WITH APPELLATE REVIEW OF SENTENCE IN AUSTRALIA, INDICATES THAT JUDICIAL DISCRETION IS NOT AS UNRESTRICTED AS IMAGINED. THE REQUIREMENT THAT JUDGES MUST APPLY SENTENCING PRINCIPLES IN DELIBERATIONS PROVIDES LIMITS TO THE MAXIMUM AND SOMETIMES THE MINIMUM SENTENCE. HOWEVER, A MORE BROADLY BASED APPEAL JURISDICTION WOULD FURTHER LIMIT JUDICIAL DISCRETION AND PROVIDE GREATER CONSISTENCY IN SENTENCING DECISIONS. A NUMBER OF DEVELOPMENTS IN THE UNITED STATES ADVOCATING VARIOUS FORMS OF GUIDELINES COULD BE USEFUL. STATUTORY PRESUMPTIVE SENTENCING SCHEMES SUGGEST THAT THERE IS A NEED TO MORE CAREFULLY DEFINE OFFENSES AND THEIR PENALTIES. LEGISLATION SHOULD PRESCRIBE MAXIMUM PENALTIES ONLY, ALLOWING COURTS TO IMPOSE LESS SEVERE SANCTIONS. THE PRINCIPLES OF SENTENCING AND APPEAL COURT SCRUTINY WOULD PREVENT ABUSES OF JUDICIAL DISCRETION. THE DEVELOPMENT OF JUDICIAL GUIDELINES IS ADVOCATED; FORMULATED FROM AN ANALYSIS OF ACTUAL SENTENCING CASES, BUT NOT BINDING ON THE COURTS, THEY CAN BE USED AS AN ADDITIONAL AID IN SENTENCING AND CAN BE MODIFIED IF COURTS REFUSE TO FOLLOW THEM. THE USE OF ADEQUATE STATISTICS, A SYSTEM OF SENTENCING COUNCILS IN WHICH JUDGES DISCUSS SENTENCES WITH COLLEGUES, AND THE ESTABLISHMENT OF A SENTENCING COMMISSION OR INSTITUTE TO ANALYZE SENTENCES AND PRODUCE GUIDELINES, WOULD ALL CONTRIBUTE TO A MORE JUST SYSTEM OF SENTENCING IN AUSTRALIA. TWO APPENDIXES CONTAIN A DEFENSE FORCE DISCIPLINARY CODE AND SUBMISSIONS FOR PAROLE. (MJW)
Index Term(s): Australia; Judicial discretion; Sentencing commissions; Sentencing guidelines; Sentencing/Sanctions
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=62962

*A link to the full-text document is provided whenever possible. For documents not available online, a link to the publisher's website is provided. Tell us how you use the NCJRS Library and Abstracts Database - send us your feedback.