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sentencing decisions

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parthie:
i have an essay about factors affecting sentencing decisions and the extent to wish they uphold the rights of victims, society and the offender. Does anyone know an area where the victims rights aren't being upheld?  i can't find any!

paris_baker:
I wrote an essay kind of similar to this a while ago.. points I used for factors affecting sentencing decisions were based around aggravating and mitigating factors (if you haven't studied this yet, it's about factors that add or take away from the length and severity of the sentence.. e.g. repeat offender, if they have good moral character, show remorse). The question for my essay was "Assessment of the role of discretion in sentencing and punishment of offenders, and these are excerpts from the paragraphs I wrote. I hope these may boost your mind or a case might be useful to you!! Good luck.

1. In the case of R v. Wood (2008), the appeal of Wood allowed his sentence to be overturned due to mitigating factors. The discretion of the justice, in overturning his sentence protected the individual rights of Wood, specifically his right to fair trial and the burden of proof. This was the quote is used to back it up: “Judges and magistrates have a wide discretion as to the penalty which is appropriate.” (Justice Bruce Debelle, 2008). Because of this power, Justice McClellan was allowed to overturn the sentence because the burden of proof had not been satisfied.

2. In relation to the application of the rule of law, it can be contended that the role of discretion is ineffective in the sentencing and punishment of offenders. For instance, in the case of R v. Skaf (2002), Skaf was sentenced to 55 years in jail. An implication was that this broke precedent and, therefore, the rule of law was not upheld. As espoused in a report by Dagistani (2007) for the University of Western Sydney, the Crown Prosecutor, who prosecuted the Skaf case, stated that “even a murder does not attract such a severe sentence.” She continues to comment that, “The crimes were not in the worst category of offence, and that the sentence was excessive.”

3. In the case of R v. Gus Forbes (1980), Forbes, an Aboriginal man was found guilty and sentenced to twelve years imprisonment for murder, and eight years imprisonment for rape. However, Aboriginal customary law was taken into account and the sentences were to be served concurrently. Justice Gallop, in sentencing Forbes considered the fact that rape, in Aboriginal communities is not as seriously regarded compared to in a European community and that there was a strong possibility of retributions, by the deceased’s family. Consequently, these factors caused Justice Gallop to mitigate the penalty. This special sentencing discretion which can result in lenient punishment for Aboriginal people is not in society’s interests for fairness and justice. Moreover, as espoused by the Australian Law Reform Commission’s report Recognition of Aboriginal Customary Laws which states “It can be argued that a special sentencing discretion of this kind would be discriminatory or divisive, since it would allow some Aboriginal defendants the possibility of mitigating their sentence in a way not available to other persons.”

parthie:
hey sorry thanks for your help but i should've clarified that the case i have to include in my assignment is the roger rogerson glen mcnamara case and there aren't many areas in that case where the victims rights aren't being met

also thanks so much for the 3rd case that will really help my assignment!!! through the fact that mitigating factors can impede on the rights of victims

Moderator: Merged double post :)

rodero:
Hi,

I think the best approach when answering a question about upholding the rights of victims in sentencing and punishment is to look at victim impact statements. ABC's article about the case (http://www.abc.net.au/news/2016-06-15/jamie-gao-murder-trial-roger-rogerson-glen-mcnamara/7466068), provides a victim impact statement;
"No matter what today's findings are or the sentence that is given, it won't change the fact that Jamie remains absent from the lives of our family"

My approach would state that the law is limited in upholding the rights of victims, as no degree of punishment by the NSW Government is able to repair the damages inflicted on the victim. If you want, you can move outside your given case study and speak of the Thomas Kelly case, where the victims mother says "We as a society depend on the courts to protect us ... the loss of another human life must reflect the impact of the crime" (SMH 'Justice for Whom?'). Here you can provide a general criticism towards the cjs' ability upholding the rights of victims, that goes beyond your prescribed case.

Hope this helps

elysepopplewell:
I'm not offering much towards the question at hand, it seems to be answered really well by everyone above!!

I am wondering though, from the perspective of students studying the case, what are some of the legal issues that you are discussing in relation to McNamara and Rogerson? It doesn't slap me in the face as the most significant case for a legal student, so I'm keen for someone to share with me what they are finding interesting in the case(s)!

I will add to the discussion though: There is always the argument with murder that no sentence will ever meet the crime. There's nearly always a discussion about capital punishment in relation to murder, particularly when life sentences are given and this becomes an expensive burden on the tax payer (society). This links wonderfully with the quote that Robert De Robles has provided in relation to VIS!

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