Penalties (Sentencing Process) Essay

To what extent do penalties imposed during the sentencing process achieve justice for
victims, offenders and society?
Penalties for the commission of criminal activity are an integral component of the criminal
justice system, aiming to achieve justice equally for victims, offenders and society.
Unfortunately, different aspects of the sentencing process provide challenges for lawmakers and enforcers to maintain justice equally for all stakeholders. Specifically, the
provocation defence, the inclusion of mandatory sentencing, and the flexibility of judicial
discretion offer different levels of justice throughout the criminal justice system when
punishing individuals.
The complete defence of provocation has proven to be a legal loophole, abused by
offenders to avoid heavy penalties and preventing the equal achievement of justice. The
Crimes Act 1900 NSW explicitly outlines the use of partial and complete defences to
indictable crimes, used by offenders to prove that the commission of the offense was
partially or completely out of their control. Specifically, the partial defence of provocation, if
proven, indicates that the victim was partly responsible for the commission of the crime
unto themselves. Furthermore, the provocation defence has become a source of abuse for
offenders, like R v Singh 2011 NSWSC, where defendants have seen their penalties reduced,
to the detriment of justice for the victims and society. Mr Singh, who was accused of
murdering his wife brutally with a knife after finding out she had had a long-term affair with
another man, successfully had his initial conviction and sentence reduced from life for
murder to 25 years for manslaughter. Despite the surmounting evidence against Mr. Singh,
he still managed to avoid necessary penalty for his offense, inhibiting the achievement of
justice. Anti-provocation activist Phil Clearly commented after the case that we cannot call
ourselves a modern society when the rights of women are being obliterated in our courts. In
light of the injustice of the provocation defence, the State Government introduced the
Partial defence of extreme provocation Bill in 2013 which significantly reduced the
circumstances and frequency that provocation could be used in court. These actions have
been taken to ensure that justice is maintained fairly for all stakeholders, though the
provocation defence still proves to be an issue for the criminal justice system.
Mandatory sentencing is another aspect of sentencing procedures which remains
controversial in its achievement of justice for all. The Crime (Sentencing Procedure) Act 1999
NSW outlines the use of mandatory sentencing for certain crimes, ensuring specific
minimum penalties and limiting judicial discretion. Whilst mandatory sentencing provides
extra protection for society and retribution for victims, it may not equally achieve justice for
offenders, particularly those who murder a police officer. The offense of murdering a police
officer carries a life imprisonment mandatory sentence without parole, with no room for

negotiation. Introduced in 2011, mandatory sentencing for police officers effectively

legislates that the life of a police officer is more valued than others, causing controversy
within the community. Conflictingly, NSW Attorney-General Greg Smith argues, with
reference to the case of R v Jacobs 2013 (NSWSC), that the murder of a police officer is a
direct attack on our community and warrants exceptional punishment. In R v Jacobs, the
defendant (Jacobs) shot and mortally wounded a pursuing police officer (David Rixon), who
placed himself in danger for the protection of the community. As a result, he was sentenced
to life imprisonment, protecting society from further attacks and providing retribution for
Rixons family and colleagues. In this sense, mandatory sentences are just are necessary in
society to deter criminals from committing crimes against the community, by providing
immense penalties.
The capacity for judicial discretion in the criminal justice system and sentencing process
allows justice to be equally administered on a case-by-case basis. Whilst not formally
legislated in Australia, the notion of judicial discretion is a fundamental aspect of the
adversarial system with which the criminal justice system is based. It allows judges presiding
over indictable cases to assess the mitigating and aggravating circumstances of each case
and administer the law appropriately to ensure the preservation of justice for victims,
offenders and society. The case of R v Loveridge NSWSC (2013) demonstrates the effective
use of judicial discretion to maintain fair justice. 18 year old Thomas Kelly was enjoying an
evening in Kings Cross when he was murdered by offender Kieran Loveridge by a king-hit or
cowards punch. The media and community immediately responded to the incident,
especially considering Loveridge allegedly commit the crime without any motives other than
spur-of-the-moment. Despite the recent addition of new One-Punch Law by the OFarrell
government in 2013, which the case was the first to exhibit, judicial discretion was still
applied as the presiding justice looked passed the mandatory four year imprisonment, giving
the offender seven years. In commenting upon the judges decision, former head of the DPP
Nicholas Cowdery said that sentencing requiresbalancing considerations which point in
different directions. Considering the circumstances of the case, the judge passed a heavy
sentence to Loveridge, effectively demonstrating the use of judicial discretion in the
sentencing process to ensure the balanced achievement of justice. Furthermore, upon
appealing the case in July 2014, Loveridges sentence was doubled; further exemplifying the
adaptability of judicial discretion to maintain justice.
Whilst achieving justice fairly for victims, offenders and society is an inherently challenging
exercise, the criminal justice system, specifically the sentencing process and penalties, have
responded effectively. Despite the provocation defence still posing as a threat to justice,
mandatory sentencing and judicial discretion highlight the preservation of justice
throughout the criminal justice system. As a result, penalties are mostly effective at
achieving justice for all stakeholders involved.