Controlling Judicial Sentencing Discretion

Abstract

The separation of powers principle demands that the law should not confine or control judicial discretion in sentencing but should aim only to direct or guide such discretion. The implementation of mandatory sentencing for assault causing death while intoxicated demonstrates that the right balance has not been struck in NSW because community expectations should be considered as simply one relevant factor in sentencing, rather than the sole factor. Ultimately, the purposes of ensuring public confidence, consistency, deterrence, denunciation and retribution should not outweigh the importance of fundamental principles of the rule of law as well as rehabilitation and attaining individual justice.

Keywords: criminal justice; criminal law; separation of powers; public policy