Mandatory Sentences and The Constitution: Discretion, Responsibility, and Judicial Process
Sydney Law Review, Vol. 22, p. 585, 2000
40 Pages Posted: 2 Dec 2009 Last revised: 3 Aug 2012
Date Written: November 29, 2000
This article argues that mandatory sentences are unconstitutional under Australian law. The constitutional challenge most likely to succeed is not based on the practical severity or otherwise of the law, but instead based on an argument of incompatibility with the judicial process. This is an argument which has only been clarified since the High Court’s decision in Kable v Director of Public Prosecutions (NSW), itself decided long after Palling. The real issue is not the existence of prosecutorial discretion but the striking absence of any countervailing judicial discretion. This balancing discretion is central to the idea of judicial process as we understand it. In the normal course of events, if a prosecutor decides to use his or her discretion to pursue an essentially trivial matter, the Court may refuse to impose a fine, or suspend the sentence, or discharge the matter. Undoubtedly there are limits to these powers in some legislation, but these limits do not completely eliminate judicial discretion although they may constrain it. More specifically, we argue that mandatory sentencing provisions require courts to act in a way which is incompatible with the obligation to act judicially. We examine the evolution of what we call the ‘doctrine of incompatibility’ in an effort to give more concrete meaning to the idea of acting in accordance with the judicial process. Our purpose in this article is not to comprehensively define what constitutes the judicial process. Rather, we argue that the judicial process at least requires that those who preside over the process act judicially, and we seek to explore what it means to act judicially. We contend that the act of judgment must have integrity and independence, secured at the very least by procedural fairness, and arguably, by equal justice. Moreover, the act of judgment must involve some degree of independent judicial discretion in determining sentence. Some element of genuine judicial discretion is necessary in legitimating the judicial role, and thus in maintaining public confidence in the courts. The history of the English, and later the Australian common law cannot be read as suggesting that the legislature enjoys unlimited power to completely eliminate judicial discretion in imposition of punishment.
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