Activity 2u

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability offactors considered in sentencingto achieve theprinciples of justice requires students to write about relevant strengths and weaknesses. Responses will vary according to the arguments selected.

          Arguments in support of aggravatingfactors andmitigatingfactorsachieving the principles of justice include:

• It is appropriate that the individual circumstances of the offender be taken into account when the most appropriate sentence is determined. Sanctions are offender-focused rather than victim-focused, so the history of the offender, the specific motivations they had when offending, the likelihood of them posing a threat to others in society and other relevant considerations should all influence the sentence that is given to them to make it more fair and appropriate.
• The best case scenario for society is if every offender reconsiders their actions and tries to make recompense for them. It is important, therefore, to take mitigating factors such as remorse and guilty pleas into account when determining the most appropriate sanction, because this rewards offenders for trying to make the situation better.
• The offender is rewarded for pleading guilty and taking responsibility for their actions and the ensuing trial, but is not punished for insisting on their right to the presumption of innocence by pleading not guilty. Pleading not guilty is not an aggravating factor, because an accused has a right to a fair trial.

           Arguments against aggravatingfactors andmitigatingfactorsachieving the principles of justice include:

• Allowing each individual judge and magistrate to take into account their own perception of aggravating and mitigating factors allows them to inject a significant amount of subjectivity into the decision. The sentences handed down may not be fair or equal across different offenders because of the differing ways in which the adjudicator interpreted their surrounding circumstances.
• Some factors have an impact on the final sentence that is mandated by legislation, even if it might be inappropriate in a given case. For instance, guilty pleas require a sentence discount to be given, even though one individual offender may not be pleading guilty out of a sincere remorse or wish to save the victim the pain of trial.
• Since guilty pleas are taken as mitigating factors regardless of whether there is remorse present, an accused party who insists on their innocence may feel as though they are being punished for asking for their right to a fair trial.

          Arguments in support of guilty pleasachieving the principles of justice include:

• Any saving of emotional energy, time and money from what would otherwise be spent at a full trial is better than no saving. Defendants should all be encouraged to contribute to these savings, and should be rewarded when they do.
• The law takes into account the fact that early guilty pleas are more beneficial than late ones, and encourages judges and magistrates to reward them more meaningfully than late ones. Defendants are not encouraged to wait until the last minute.

          Arguments against guilty pleas achieving the principles of justice include:

• The common law established in Thomas states clearly that early guilty pleas must be taken into account in terms of a sentencing discount even if there is no indication that the accused has genuine remorse for their actions. This rewards guilty pleas as tactical ploys to reduce the consequences that someone has to suffer for their wrongdoing, which can be thought to be a bad faith motivation.
• It is possible for a judge or magistrate to reward even a very late guilty plea with a sentencing discount, even though very little has been saved in terms of emotional energy, time or money.
• Since guilty pleas are taken as mitigating factors regardless of whether there is remorse present, an accused party who insists on their innocence may feel as though they are being punished for asking for their right to a fair trial. They may feel pressured into entering a guilty plea, even if they believe they are legally innocent, because they may feel threatened by the possibility of receiving a higher sentence.

          Arguments in support of victimimpact statementsachieving the principles of justice include:

• The law has developed to be flexible in relation to the content and form of victim impact statements. They are not designed to be onerous or to add even more stress to the experience for the victim. Instead, the victim is able to choose, with a significant amount of freedom, how they want to express themselves and what they want to say. This increases the victim’s access.
• The judge or magistrate is given the power to declare any part of a victim impact statement inadmissible if it contravenes the rules of evidence, or if the presiding officer fears it will otherwise unfairly prejudice the sentencing against the offender. These restrictions are in the interests of fairness.

          Arguments against victimimpact statements achieving the principles of justice include:

• One of the unintended side-effects of victim impact statements is that they suggest that a crime against a victim is worse, and deserving of harsher punishment, if that victim is eloquent, able to appeal to the emotions of the court, and has money or social standing that was threatened by the crime. This unintentionally devalues the impact of crime on people who can’t express themselves well, or have little money or social standing they can say was impacted.
• Allowing a victim impact statement to affect sentencing or the sanction given may be considered inappropriate, as the criminal law is focused on the wrongdoing rather than the effect of it – the effect of the wrongdoing is the focus of the civil law system.
• Victim impact statements have been heavily redacted during sentencing, with large sections declared inadmissible. This has been distressing for the victims who have been in the courtroom, seeing their statements cut down, and not able to read out sections that were significant to them.
• The 2018 reforms mean that victims are now allowed to read out their entire statement, including inadmissible sections, but now parties have no way of checking that the judge only took into account admissible parts, because the court no longer needs to disclose which parts were or were not relied on. This lack of transparency reduces access, and also potentially diminishes fairness.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against onefactor considered in sentencing, that it does achieve the principles of justice. Responses will vary according to the arguments selected.