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.”
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