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The punishment fit the crime;"1 What is a Mandatory Sentence? Before embarking upon a detailed consideration of this topic it is essential that the subject matter be defined.
In other words, the judicial officer has no discretion to impose a higher or lower sentence depending upon the nature of the crime.
Mandatory sentences by definition fall foul of the fundamental principle of law that a sentencing court should not impose a punishment which does not fit the crime. The thesis of this paper is that the imposition of mandatory sentences is inconsistent with proper sentencing principles.
The Criminal Justice System In the Australian Law Reform Commission identified two main criteria by which the community will judge the justice of the criminal justice system.
Secondly, the system must be consistent in the apprehension, identification and punishment of offenders.
The need for consistency pervades all elements of the system. One of the most damaging criticisms that can be made of any aspect of the criminal justice system is that it is inconsistent.
This is so whether the inconsistency is in sentencing, or differential police or prosecution practices". The Purpose of Sentencing In the New South Wales Law Reform Commission identified the objectives and aims of punishment as being "retribution, deterrence, rehabilitation, incapacitation and denunciation".
To that might be added the secondary but multiple factors which may be regarded as mitigating in the penalty. Thus, in Pavlic v.
The Queen7 Justice Slicer referred to studies in Australia and England which had shown that judges had identified over factors which might mitigate a sentence. He concluded that "it is impossible to allocate to each relevant factor a mathematical value, and from that, extrapolate a sum which determines the appropriate penalty".
In determining what emphasis should be given to any one of the factors, it is important to bear in mind that: In all civilised countries, in all ages that has been the main purpose of punishment and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment.
If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offence. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment".
Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose.
Cuthbert 86 WN Pt. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime. The sentence should be such as, having regard to all proved circumstances, seems at the same time to accord with the general moral sense of the community and to be likely to be a sufficient deterrent both to the prisoner and others: Courts have not infrequently attempted further analysis of the several aspects of punishment Reg v.
Goodrich 70 WN NSW 42where retribution, deterrence and reformation are said to be its threefold purposes. In reality they are but the means employed by the Court for the attainment of the single purpose of the protection of society'.
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1 E. F. Harrison, Romans in The Expositor’s Bible Commentary, 2 Harrison, Romans, plombier-nemours.comgh we would disagree with some of Harrison’s dates by as much as one year (probably late 55 or early 56 is the date for Romans), one simply cannot be more precise and dogmatic in this chronology.
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