The Law The Many Problems With Our Legal System

[RedStarUncle]

Should a sentencing justice not also consider:

• the injury to the community?
• the damage to the perpetrator?
• the level of deliberateness of the criminal act?
• the possibility of recidivism?

Scenario 1: an ambulance with the lights on is in a traffic accident which causes a death.
Scenario 2: a child of 10 commits accidental murder of their six month old sibling.
Scenario 3: a roof repairer accidently - whilst following all due legal procedure - knocks a roofing panel off the roof, which hits and wounds someone. They represent themselves and make a hash of it, and are convicted of manslaughter.
Scenario 4: a boy of 16 without any priors is a lookout for a robbery. He had no idea that one of the leaders brought a knife with him, escalating it to an armed robbery. Link is an Australian discussion on recidivism rates for young offenders.

Are you okay with each of the above cases - the ambulance driver; the child of 10; the roof repairer; the 16 year old - going to jail under your own guidelines?

The question of guilt is probably more relevant to your 4 scenarios than the question of sentencing. Scenario 2 I don't think for example it's possible to be guilty of "accidental" murder because that's not murder.

I think your 4 factors are relevant to sentencing in addition to the OP proposed.

 

[Malifice]

Sentencing judges only need to ask 3 questions. What sentence is needed to:
1) give justice to the victim(s)?
2) act as a deterrent to others?
3) keep the community safe by reducing the risk of further offences by the perpetrator?

You're blaming Judges for sentences, when a Judge can only sentence in accordance with the relevant State Sentencing Acts.

Their hands are tied by the legislation.

If you want stronger sentences (and in some cases I would agree with you) then you need to be pointing the finger at the Legislature of your State. If they legislated for lengthier sentences, you would get lengthier sentences.

 

[Gethelred]

The question of guilt is probably more relevant to your 4 scenarios than the question of sentencing. Scenario 2 I don't think for example it's possible to be guilty of "accidental" murder because that's not murder.

Manslaughter is recklessness resulting in death, and the idea is that each individual - under the 1, 2, 3 rules provided in the OP - is before a sentencing court.

 

[Rob R]

I understand that our courts are based on the English common law system, which originated almost 1000 years ago after the Battle of Hastings and was largely in place by the 1870s. Isn't it about time the Australian court system was made fit for purpose?

Sentencing judges only need to ask 3 questions. What sentence is needed to:
1) give justice to the victim(s)?
2) act as a deterrent to others?
3) keep the community safe by reducing the risk of further offences by the perpetrator?

By using these 3 standard criteria in every criminal case it provides a consistent and transparent approach and reduces the likelihood of judges failing to consider all of the factors. It allows them to compare apples with apples rather than using their own subjective criteria which can then be appealed.

What's stopping us from modernising our system?

In addition, there should be no unrecorded convictions. Ever.

Really? I don't have much time for our progressive judges and some of their light sentencing but our system needs to consider a lot more than just your three factors.

And as Malifice pointed out a lot of the problem is with the laws.

I do agree that convictions should be recorded.

On SM-A136B using BigFooty.com mobile app

 

[The J Dog]

You're blaming Judges for sentences, when a Judge can only sentence in accordance with the relevant State Sentencing Acts.

Their hands are tied by the legislation.

If you want stronger sentences (and in some cases I would agree with you) then you need to be pointing the finger at the Legislature of your State. If they legislated for lengthier sentences, you would get lengthier sentences.

I'm not blaming judges. I'm asking why can't we accept that the laws are outdated and bring them into the 21st century?

Why does the sentencing have to have a mystical quality about it and be put under the responsibility and judgement of a single person based on inconsistent and imperfect interpretations and weightings? Why can't it be more like the MRP where people in the community can at least debate what the right sentence is - e.g. a multiple rapist or murderer should be put away for the rest of their lives because of the risk to the community if they are ever released.

 

[Malifice]

I'm not blaming judges. I'm asking why can't we accept that the laws are outdated and bring them into the 21st century?

Why does the sentencing have to have a mystical quality about it and be put under the responsibility and judgement of a single person based on inconsistent and imperfect interpretations and weightings? Why can't it be more like the MRP where people in the community can at least debate what the right sentence is - e.g. a multiple rapist or murderer should be put away for the rest of their lives because of the risk to the community if they are ever released.

You don't need a community debate to sentence a multiple murderer etc for a whole of life sentence. Or more correctly, you vote in representatives (the State Legislature) to do the debating (and write the laws) for you.

If you want longer sentences, you need the Sentencing Acts to require a judge to sentence them to a whole of life sentence for that crime.

Which we have in WA, and was used a few years ago:

https://www.abc.net.au/news/2019-07...arvey-never-to-be-released-from-jail/11312864

Where WA lags behind is our minimum non parole period when it comes to a 'Life' sentence for Murder is 10 years:

For murder, the minimum non-parole period on a life sentence in the Australian Capital Territory is 10 years, as it is in Western Australia (except when committed during an aggravated home burglary, in which case it is 15 years).

https://en.wikipedia.org/wiki/Life_imprisonment_in_Australia

In my view the minimum non parole period for murder should be increased to 20 years and 'Life' should start at 'Life' and then work back from there based on mitigating factors in the offending.

With particularly serious offending (like in the case above) requiring a whole of life order, notwithstanding any mitigating factors.

 

[Gethelred]

I'm not blaming judges. I'm asking why can't we accept that the laws are outdated and bring them into the 21st century?

Because you are asking us to accept the premise that the laws are outdated without demonstrating it.

Why does the sentencing have to have a mystical quality about it and be put under the responsibility and judgement of a single person based on inconsistent and imperfect interpretations and weightings?

... that have evolved through precedent and common law, as well as negotiated through government written law.

Again: you've not demonstrated there's a problem.

Why can't it be more like the MRP...

...

Are you fair dinkum?

You want the legal system to be like Michael ****ing Christian?

... where people in the community can at least debate what the right sentence is - e.g. a multiple rapist or murderer should be put away for the rest of their lives because of the risk to the community if they are ever released.

Can you please name any multiple rapists or murderers who are not put away for the rest of their lives because of the risks to the community if they are ever released from an Australian context?

 

[HairyO]

Lawyers make complicated laws because if it was easy we wouldnt need lawyers.

 

[The J Dog]

Because you are asking us to accept the premise that the laws are outdated without demonstrating it.

... that have evolved through precedent and common law, as well as negotiated through government written law.

Again: you've not demonstrated there's a problem.

...

Are you fair dinkum?

You want the legal system to be like Michael ****ing Christian?

Can you please name any multiple rapists or murderers who are not put away for the rest of their lives because of the risks to the community if they are ever released from an Australian context?

I'm not pumping up Christian, trust me. However, the MRP is better than the tribunal. How many players get let off on technicalities around the charge?

The fact that there are plenty of criminals that have committed 3 or more killings or rapes tells you that they have been released after committing 2. What's the point in releasing someone after 20 years of prison and expecting them to be rehabilitated and integrate back into society? The 20 year sentence might give some justice to the victim, and act as a deterrent to other criminals but it's not going to protect the community. Maybe after 20 years the perpetrator can be put on a low security prison farm, but they should never be released back into the community based on the likelihood they will offend again.

 

[The J Dog]

Should a sentencing justice not also consider:

• the injury to the community?
• the damage to the perpetrator?
• the level of deliberateness of the criminal act?
• the possibility of recidivism?

Scenario 1: an ambulance with the lights on is in a traffic accident which causes a death.
Scenario 2: a child of 10 commits accidental murder of their six month old sibling.
Scenario 3: a roof repairer accidently - whilst following all due legal procedure - knocks a roofing panel off the roof, which hits and wounds someone. They represent themselves and make a hash of it, and are convicted of manslaughter.
Scenario 4: a boy of 16 without any priors is a lookout for a robbery. He had no idea that one of the leaders brought a knife with him, escalating it to an armed robbery. Link is an Australian discussion on recidivism rates for young offenders.

Are you okay with each of the above cases - the ambulance driver; the child of 10; the roof repairer; the 16 year old - going to jail under your own guidelines?

Injury to the community is covered under Criteria 1) justice, as is damage to the perpetrator. The criminal intent is also covered under Criteria 1) justice and 2) deterrent. Criteria 3) is all about recidivism - a crime committed by a good person in unique circumstances who has great prospects of rehabilitation vs a repeat offender who has disdain for the community.

I wouldn't see the first 3 scenarios you've described needing a jail sentence. Scenarios 1 and 3 are workplace related accidents where existing safety procedures didn't mitigate the risk effectively. Scenario 2 would require a lot more detail. The 16 year old in Scenario 4 needs guidance and mentoring through a service for troubled youths.

 

[Gethelred]

Injury to the community is covered under Criteria 1) justice, as is damage to the perpetrator. The criminal intent is also covered under Criteria 1) justice and 2) deterrent. Criteria 3) is all about recidivism - a crime committed by a good person in unique circumstances who has great prospects of rehabilitation vs a repeat offender who has disdain for the community.

I see what you're getting at, but this is why the law winds up being a good deal more complicated than just 1,2,3. You would need to explicitly lay out precisely the limits and boundaries of each category, definitions for each word used and inferences that should or should not be drawn.

You write laws to create as much clarity as you can whilst also closing every loophole you can think of and ensuring that everyone's on the same page concerning both meaning an interpretation. Your laws would start out simple, someone would find a loophole, you amend a section, then the process begins again.

This is essentially how common law began.

I wouldn't see the first 3 scenarios you've described needing a jail sentence. Scenarios 1 and 3 are workplace related accidents where existing safety procedures didn't mitigate the risk effectively. Scenario 2 would require a lot more detail. The 16 year old in Scenario 4 needs guidance and mentoring through a service for troubled youths.

I think we're essentially on the same page regarding what is meant by justice in each of these scenarios, then.