The Law Why is our court system so complicated?

[The J Dog]

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.

 

[Gethelred]

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.

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?

 

[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.

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