Criminal law sample Papers

Sample #1

Australia’s Approach to Trial and Punishment

Every country and in some cases state have its unique guidelines and laws regarding trial and punishment of the offenders. In Australia, an offender can be subjected to a jury trial or trial by a judge or magistrate depending on whether the offense is classified as an indictment or summary proceedings. The offenders who are found guilty are either sent to prison or community corrections. For the offenses that do not require imprisonment, punishments include community service, parole, and probation. Indigenous Australians had their own forms of punishment before colonization such as corporal punishment, public shaming, death, singing, and exclusion from the community. However, most of these forms of punishment have since been abolished. Moreover, the death penalty has also been abolished in all the jurisdictions. Thus, the highest form of punishment is life imprisonment. This paper looks at trial and sentencing in Australia and explores the history of the death penalty in the country.

Death Penalty  

The last execution that occurred in Australia was in 1967 meaning for over 50 years now, Australia has not practiced the death penalty. Historically, punishment by death occurred under the Aboriginal customary law where the offenders were either killed directly or through the use of sorcery. The first execution under official law occurred in 1629 occasioned by the hanging of Batavia rebels by the European authorities. Until the 19th century, the crimes that carried death sentence included murder, forgery, burglary, stealing, sexual assault, and manslaughter. As a result of these crimes, Australia prosecuted about 80 people per year. Each state in Australia had its own laws and punishment where all the states practiced the death penalty. The first state to abolish the death penalty was Queensland, which happened in 1922. This was followed by Tasmania in 1968, and in 1973, the federal government introduced the Death Penalty Abolition Act 1973 leading to the abolition of the punishment for criminal offences.

After the introduction of the act, other states consequently abolished the death penalty including Victoria, South Australia, Western Australia, and New South Wales. This occurred despite the fact that the act only abolished the death penalty under federal law and not under statutory or state law. In place of the death penalty, life imprisonment became the maximum form of punishment. Though the last execution occurred in 1967, some states were still giving offenders death punishments with the last one issued in 1984. Nevertheless, these were overturned to life imprisonment and none of the sentences resulted in an execution. Since the 1973 Act only provided for the abolition of the death penalty under the federal law, the Commonwealth introduced another act in 2010 to fill the gap left by the earlier act on the death penalty.

The 2010 legislation named the Crimes Legislation Amendment Act 2010 extended the law on the abolition of the death penalty to apply even in states jurisdictions. Under the law, the Australian government denounces the death punishment both in the present and in future. As such, the legislation prevents any state from re-introducing the punishment of the death penalty. Additionally, the 2010 Act inhibits any state of the Commonwealth from extraditing a prisoner to another jurisdiction where they are likely to face the death penalty. Ever since the abolishment of death penalty in Australia, the country has been among the abolitionist fighting for the eradication of death penalty in the entire world under the United Nation’s call for universal abolishment of the capital punishment.

Unlike Australia, the United States still practices the death penalty to date since it was introduced by the colonies. Among its 50 states, 30 states practice capital punishment, which is legally allowed under the federal law and statutes of several states. Moreover, capital punishment in America is also carried out by the military. Though considered the model country of the world, America is the only Western country that is yet to abolish the death penalty. The method commonly used in America to execute offenders is the lethal injection. However, in the past 10 years, some states have not carried out the death penalty, as well as the U.S. military and the federal government. This makes them de facto abolitionists based on the UN’s principles.

Trial

In Australia, most of the cases are tried by judges and magistrates except for the cases that fall in the category of the indictment. This is provided in section 80 of the Australian Constitution states:

The trial on indictment of any offense against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offense was committed, and if the offense was not committed within any State, the trial shall be held at such place or places as the parliament prescribes.

This section draws from the American Constitution, which determines that for serious offenses, the offenders deserve to have their peers decide whether they are innocent or guilty. This provision gives Australian citizens the right to be tried by a jury. However, the law is not very clear on the kind of offenses that trial by jury is allowable. In most cases, a jury trial is usually avoided, as the justice system prefers trial by a magistrate of a judge since the parliament sanctioned summary proceedings. Moreover, under the Crimes Act 1914, the provision is unclear whether the offenses defined by it should be tried by a jury or by judge or magistrate. Indictment offenses are defined by offenses whose punishment exceeds 12 months imprisonment. However, the addition of the words “unless the contrary intention appears” creates vagueness in the interpretation of cases that require a jury trial and those that need summary proceedings.

In comparison to America, jury trials in the United States are common and are often used even in non-criminal cases. Jury trial in the United States is provided for in the Article Three of the United States Constitution, which provides that a person whose offence warrants a punishment of more than six months has a right to jury trial. For cases where the punishment is six months or less, the state can make a decision to try the case using a jury or a judge. This is contrary to Australian trial where judges or magistrates try most cases and only those considered serious tried by a jury. A unique element in a jury trial in America that is not found in the Australian justice system is the fact that a jury verdict for the criminal cases is required to be unanimous for it to hold.

Sentencing

            Apart from the six Australian states, the federal and two mainland territories each have their own set of guidelines on sentencing. These principles are contained in the sentencing laws that define factors to be considered during sentencing. The sentencing statutes contain also the kind of sentences for the offenses and in certain cases involve penalty scales to determine maximum penalties for given offenses. The state statutes prescribe the maximum penalties, as well as minimum penalties for cases. However, they only provide general guidelines leaving the judges with the authority to determine the exact sentence. The sentencing judges through the “instinctive synthesis” rely on relevant considerations, which are usually unified, weighed, and balanced. However, this approach to trial and sentencing creates inconsistencies, which has prompted a debate on the best mechanisms to provide prescriptive guidelines on sentencing and reduce disparities in sentencing.

The United States, on the other hand, through the Federal Sentencing Guidelines has numerical sentencing provisions that judges rely on to make judgments. This contradicts the Australian court system where the judge makes a decision on the length of sentencing. The Australian system considers the American overly restrictive and thus violates the concept of judicial discretion, as well as contradicts individualized justice. Nevertheless, the debate and push for prescriptive and obligatory minimum sentences. In order to achieve consistency in sentencing, scholars suggest the introduction of mandatory minimum sentencing, the formation of sentencing councils, and introducing guideline judgments.

Sentencing and trial in the Australian justice system are provided by the statutes and the federal laws, which determine how the punishment for an offense is carried out. The death penalty has since been abolished in the country and Australia becomes one of the abolitionists championing universal eradication of the death penalty. Though the statutes provide guidelines for sentencing, the provisions are general thereby the judge is the one who determines the exact duration of a sentence. Finally, unlike the United States where trial by jury is extensively practiced, in Australia, trial by jury is only allowed for cases under the category of the indictment.

 

Bibliography

Arie Freiberg, Arie. “Australia: Exercising Discretion in Sentencing Policy and Practice”, 22(4) Fed. Sent’g Rep. 204 (2010).

Bessler, John. Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. (Boston, MA: Northeastern University Press),2012.

Lennan, Jo and George Williams. “The death penalty in Australian Law”. Sydney Law Review. (2012): 559-694.

More, Kirby, “The High Court and the Death Penalty: Looking Back, Looking Forward,
Looking Around”, Australian Law Journal, vol 77, (2003):811-819.

NJ King; DA Soule; S Steen; RR Weidner. “When Process Affects Punishment: Differences in Sentences After Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States,” Columbia Law Review, (2015).

Parkinson, Patrick Tradition and Change in Australian Law, Sydney: LBC Information Services, 2001

Williams, George. "No death penalty, no shades of grey". Sydney Morning Herald. (2 March 2010)

 

Arie Freiberg, “Australia: Exercising Discretion in Sentencing Policy and Practice”, 22(4) Fed. Sent’g Rep. 204 (2010).

Jo Lennan and George Williams. “The death penalty in Australian Law”. Sydney Law Review. (2012): 559-694.

George George (2 March 2010). "No death penalty, no shades of grey". Sydney Morning Herald. (2 March 2010).

John Bessler Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment. (Boston, MA: Northeastern University Press),2012.

Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001)

Ibid

NJ King; DA Soule; S Steen; RR Weidner. “When Process Affects Punishment: Differences in Sentences After Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States,” Columbia Law Review, (2015).

Kirby More, “The High Court and the Death Penalty: Looking Back, Looking Forward,
Looking Around”, Australian Law Journal, vol 77, (2003):811-819.

Patrick Parkinson, Tradition and Change in Australian Law