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):

Gives the Court of Criminal Appeal the power to issue sentencing guidelines
Makes earlier, state-issued guidelines valid
Sets out general guidelines for the courts to use in sentencing offenders
The degree of weight place on aggravating and mitigating factors will be determined by each individual case

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