Brittany Kerin Discretion. Discretion Discretion is the power or right to make official decisions...
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- Slide 1
- Brittany Kerin Discretion
- Slide 2
- Discretion Discretion is the power or right to make official
decisions and judgements, whilst using professional reason, to
choose from among acceptable alternatives.
- Slide 3
- Abuse of Discretion An abuse of discretion occurs when a
decision made is: unacceptable does not achieve justice for both
the individual and society.
- Slide 4
- Unacceptable Decision A decision can be unacceptable because:
it does not support the specific facts of the situation because it
is arbitrary because it goes beyond the binding constraints of
certain legal measures, including legislation such as the Crimes
Act 1901.
- Slide 5
- Judicial and Police Discretion Judicial discretion is the
freedom judges have to decide legal matters, using their
professional judgement, within the bounds of law and fact. Police
discretion is the flexibility officers have in dealing with certain
situations they encounter.
- Slide 6
- Judicial Discretion The judiciary has the freedom to exercise a
certain amount of discretionary power when making legal decisions;
they must take into account the specific facts of each case
determine the most suited outcome.
- Slide 7
- Limits of Judicial Discretion Precedents set by previous cases
in higher courts Specific judicial guidelines Maximum penalties
Mandatory sentencing; in which the judges have no discretionary
power at all, the Constitution Legislation: Crimes Act 1901, Crimes
(Sentencing Procedure) Act 1999 (NSW) The Criminal Procedures
Amendment Act 1986 Crimes Amendment (Mandatory Life Sentences) Act
1996 (NSW).
- Slide 8
- Case: R v Dawes Daniella Dawes charged with the murder of her
10 year old son who suffered from severe autism; however Daniella
suffered from severe mental illness. Initially on trial for murder
Crown appealed to Criminal Court of Appeal Pled guilty for
manslaughter basis of her plea was on the ground of substantial
impairment of her capacity by reason of an abnormality of mind
arising from an underlying condition, she had a major depressive
illness Sentenced to a five year good behaviour bond Judge judge
took into consideration the specific circumstances of Daniellas
situation and used his discretionary power to substantially lower
Daniellas sentence.
- Slide 9
- Police Discretion Police have the power and freedom to exercise
a certain degree of discretion. Police have the choice to enforce
certain laws and how these laws will be enforced.
- Slide 10
- Limits of Police Discretion Legislation Crimes Act 1901 The
enactment of new laws (such as the mandatory arrest laws for
domestic violence) The allocation of funds Certain prosecutorial
policies set by the Director of Public Prosecutions Police policies
Specific guidelines
- Slide 11
- Limits of Police Discretion Legal entities authorised to test
the discretion of a police officer when complaints are raised by
individuals Anti-Corruption Commission the Ombudsman the Coroner
the Director of Public Prosecutions Police Internal
Affairs/Investigations
- Slide 12
- Discretion Discretion raises issues of: Fairness Equality
Allows for: Inconsistency Unpredictability
- Slide 13
- Police Discretion When a police officer makes a decision and
uses discretion, they must ensure that: the law is being applied
with consistency that their decision is not fuelled by their
personal context and individual views, so they are not being
biased. Otherwise police can be discriminatory and have the power
to target specific groups when applying and enforcing the law.
- Slide 14
- Police Discretion Discretion allows for: a certain amount of
leniency and vagueness within the law. Allows officers to apply
what they believe to be the best response to each specific
situation. Because every police officer is different, each officers
response to a specific situation will vary.
- Slide 15
- Cop Sacked for Hanging out Small Fines Media article from the
Sydney Morning Herald in November 2009. The article details
Sergeant Mark Astons excessive use of discretionary power to let
off individuals caught speeding. Sergeant Ashton was sacked from
the Victorian Police department for his use of discretion. A police
spokeswoman stated that "All police officers are entitled to use
discretionary powers when handling speeding offences, whether that
be through the issue of infringement notices, cautions or other
form of lawful action.
- Slide 16
- Police Discretion Due to the use of discretion and the lack of
police resources many smaller minor offences go unpunished. Minor
offences are not posing a direct threat and harm to society Through
the continued use of police discretion and the lack the lack of
consistency and efficiency in the enforcement of the law that more
dangerous and serious offences occur. If police were to enforce
every aspect of the law and not utilize their discretionary powers,
the criminal justice system would not be able to handle it and
police would not have the time to focus on the more dangerous and
more serious crimes.
- Slide 17
- Police Discretion There are not enough resources, including:
Police Jails Courts Prisons, available to govern every aspect of
the law Discretion enables police to focus on the more serious
crimes The use of discretion can be seen by individuals as not
achieving justice within society as the law is not being
consistently and thoroughly regulated.
- Slide 18
- Discretion Discretion has both positive and negative influences
on the law and its effectiveness for achieving justice for both the
individual and society. Through the correct use of discretion in
the criminal justice system, the law and its effectiveness for
achieving justice can be thoroughly achieved.
- Slide 19
- Thank you