Judicial discretion is a core tenet of the criminal justice system, requiring the judiciary to balance competing principles and choose between several different, but equally valid, courses of action. It’s a fundamental safeguard in all functioning  democracies. It allows judges to exercise their judgment by considering the individual circumstances of the case.

‘Law and order’ auctions are now a feature in all state and federal elections and politicians  are stepping up their attacks on judicial discretion by rolling out tougher bail laws and expanding mandatory sentences. These are but two examples of the Parliament attempting to limit judicial discretion.

Supreme Court of Victoria1

The Supreme Court of Victoria. PICTURE: Bidgee (licensed under CC BY-SA 1.0/image cropped)

 

"Restrictions on judicial discretion inhibit the courts' ability to properly balance these considerations and take into account other issues related to the offender’s vulnerability, culpability or previous character and any aggravating or mitigating factors. Parliamentary interventions which dictate what the judiciary may or may not consider, unfairly tips the scales in favour of retribution."

As an example, amendments imposing mandatory terms of imprisonment for offenders who assault emergency services workers appears to be a knee-jerk response to tabloid media and community pressure. The State Government has also altered the ‘special reasons’ provisions that provide for exceptions to custodial sentence of not less than six months, limiting the courts' scope to give weight to the personal circumstances of an offender when sentencing. Considering that one fifth of ambulance call outs are linked to mental health, the government’s quick fix response highlights that these decisions are about populism rather than a concern for community safety. Mandatory sentences discourage offenders from pleading guilty and taking responsibility for their misconduct.

Measures which restrict or remove judicial discretion are inconsistent with the rule of law. Fettering judicial independence often results in arbitrary and disproportionate sentences. Central to the rule of law is the need for individualised justice. A one-size-fits-all approach is neither fair nor tenable, as justice requires the assessment of each case individually. When sentencing, judges are required to have regard to all the circumstances of a particular case. They must balance competing considerations of punishment, deterrence, rehabilitation, denunciation and community protection. 

Restrictions on judicial discretion inhibit the courts' ability to properly balance these considerations and take into account other issues related to the offender’s vulnerability, culpability or previous character and any aggravating or mitigating factors. Parliamentary interventions which dictate what the judiciary may or may not consider, unfairly tips the scales in favour of retribution. 

Restricting judicial discretion through mandatory sentencing disproportionally impacts first time offenders and those predisposed to greater contact with the justice system including those experiencing homelessness, psychiatric illnesses, drug and alcohol dependency and those exposed to violence. Removal of judicial discretion is not the proper way to deal with these community concerns. Indeed, tougher sentences exacerbate many of these problems, all the while being an ineffective crime deterrent. 

There is a misconception that the judiciary is out touch with community concern and therefore Parliament must intervene in their decision making. However, it is magistrates and judges who are in courtrooms every day, hearing evidence firsthand, observing all stakeholders. It’s  not parliamentarians, the general public or media commentators who observe the daily workings of the court. When members of the community are given the same information as judges they overwhelmingly reach similar conclusions about what is a fair sentence. Repeated studies confirm this. Any suggestion that judges dispense justice from an “ivory tower” could be no further from the truth.

Political interventions into the independence of the judiciary risks the justice systems becoming a politicised arena, where short term ‘vote winning’ goals undermine the rule of law and the essential principles of justice and fairness. Judicial discretion is the best way to maintain public confidence and ensure the justice system remains fair and consistent. An independent judiciary is central to a robust democracy.

Rob Stary is the principal at Melbourne-based criminal law firm Stary Norton Halphen.