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Statutory And Judicial Guidelines
JUDICIAL | STATUTORY |
· A judicial guideline is to reduce inconsistency in the judgements of trials · The intention is to ensure that cases are treated alike i.e. the rule of precedence is upheld | · The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW):
· Crimes (Sentencing Procedure) Amendment Act 2001 (NSW):
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Maximum Penalties
– Crimes Act (1900) NSW
– Eg. anybody who is found guilty of assault occasioning actual bodily harm ‘shall be liable to imprisonment for 5 years
The Crimes (Sentencing Procedure) Act 1999 NSW
– Governs the way judges and magistrates determine sentences
There are many provisions:
– Must not impose a full time sentence without considering and rejection all possible alternatives
– Can impose a fixed term
– If the term is over 6 months then they can fix a non-parole and parole period
– Non Parole: minimum time to be spent in prison
– Parole: the time when the offender may no longer be imprisoned, and is free under supervision, usually a quarter of the total sentence
– Any sentence of 6 months or under must be fixed
Judicial Guidelines
– Issued by NSW Court of Criminal Appeal
– Not binding but help structure discretion
– Reduce inconsistency
– Guides judges by indicating the usual sentence imposed for certain offences
– 7 guidelines exist
– Crimes (Sentencing Procedure) Act 1999 NSW
– R V Jurisic (1998) NSW
Statutory Guidelines
– Issued by parliament clarifying how judges are to sentence
– Acts guiding exercise of judicial discretion:
The Crimes Act 1900 NSW
– Prescribes maximum penalties for different offences eg. murder= life manslaughter = 25 years
Crimes (Sentencing Procedure) Act 1999 NSW
– Identifies purpose of punishment and mitigating or aggravating circumstances of offence: left to judicial discretion to determine
– Prescribes minimum sentence for certain offences eg. aggravated sexual assault in company = 15 years
Mandatory sentencing
– Refers to the practice of some parliaments of legislation for a particular sentence for a particular crime
– Takes away the exercise of judicial discretion
– The court has no choice but to impose the legislated sentence
Amendments to the Crimes (Sentencing Procedures) Act 1999 NSW have:
– Prescribed non parole and parole periods
– Allowed judges and magistrates to take into account aggravating and mitigating circumstances
Extract from Legal Studies Stage 6 Syllabus. © 2009 Board of Studies NSW.