Abdul Benbrika’s case serves as a wakeup call on the Australian criminal system’s balancing between the protection of civil rights and the safeguarding of national security. The ‘’continuing detention orders’’ and ‘’post-sentencing conditions imposed on Benbrika have created concerns about the basic legal rights of terrorism offenders. Law Professor James Boyd White acknowledges the importance of maintaining a balance between protecting one’s legal rights and the state’s interests through the theories of the ‘’blaming culture’’ and ‘’discretionary sentencing’’ in the criminal justice system. White’s ‘’blaming theory’’ explores the legal requisites that must be satisfied in order to establish guilt and impose the subsequent punishments. This …show more content…
According to White, judges in common law jurisdictions have a variety of sentencing purposes that may only seem fair and legitimate on the surface (White,1978, p.12). For instance, a judge considering deterrence as a purpose is still restricted from discretionarily imposing a sentence that exceeds what is stated as a maximum penalty in the legislation (White,1978, p.12). Nevertheless, from a legal ethical standpoint, as argued by White, it is not. As evident in the article, Benbrika was subjected to punishments that are, in my view, excessively harsh. Benbrika was also the first offender in Victoria to have served a 3-year sentencing extension order imposed by a court. In addition, he was subjected to 30 post-sentencing conditions and also had his citizenship revoked. Therefore, the question one may ask is that ‘’does Benbrika deserve this taking into account his culpability of solely ‘’directing a terrorist organisation’’? Although directing a terrorist organisation could ultimately cause hundreds of casualties, it is highly questionable whether its culpability or blameworthiness is more significant than homicide crimes where there are actual casualties. Therefore, I do question whether an offender convicted of (for instance) murder that is not part of any terrorist plot would have received 30 …show more content…
Specifically, he argues that the five purposes of punishment are to some extent contradictory in nature. This is particularly true for the purposes of deterrence and rehabilitation (White, 1978, p. 6). General deterrence, as mentioned above, serves the purpose of intimidating and preventing potential offenders from committing a particular crime by imposing harsher punishments. Rehabilitation, on the other hand, aims to address the behaviour of offenders and thus, the root causes of criminal acts. As such, rehabilitation is conversely perceived as a more lenient sentencing purpose which includes compulsory programs that aim to reintegrate offenders into the society (White,1978, p. 6). The point I want to make is that the 30 post-sentencing conditions and the extended sentencing orders imposed confirm that deterrence and rehabilitation cannot be put into practical use simultaneously. It is worth noting that Justice Hollingworth has put some effort in rehabilitating Benbrika, as evident in the post-sentencing condition which mandated Benbrika to receive psychological and deradicalisation treatment. This is, in my view, crucial to addressing the root causes of terrorism offences, which would have been more commendable had it occurred prior to Benbrika’s release. Nevertheless, as reflected in the other punishments both during and after Benbrika’s sentence, the purpose
Denunciation is a condemnation or criticism of another’s actions (O’Regan, Reid, 2013). Through Bourque’s sentence, Gunn condemned Bourque’s actions and sent a message to society that his crimes were extremely heinous and will not be tolerated. Similarly, his sentence was retribution-based, as retribution is the belief that the severity of the sentence should depend on the seriousness of the crime and not the seriousness of the individual (O’Regan, Reid, 2013). This is demonstrated by Bourque’s precedent defining sentence, his lack of parole eligibility and its corresponding disregard for Bourque’s individual needs as an offender. Cameron Gunn’s retribution-focused thinking was also demonstrated in Bourque’s trial, as he argued that Bourque’s crimes were “among the most heinous this country has seen and they warranted a sentence that would give precedence over rehabilitation” (MacDonald 2014). In addition to focusing Bourque’s sentence on the theoretical principles of denunciation and retribution, Gunn also focused his sentence on deterrence, specifically general deterrence, as it is meant to discourage all other potential offenders from committing crimes (O’Regan, Reid, 2013). In Bourque’s case, the severity of his sentence and corresponding lack of parole eligibility is
They explain three agendas that they believe will work in fixing the problem of mass incarceration, brought about by the Punishment Imperative. The first solution they offer is to make changes to minimum sentencing, especially for drugs, and to create structured sentencing systems to guide judicial discretion. The next agenda is to reduce the length of stay in prisons through parole, early release, and changes in sentencing strategies. The final agenda that Clear and Frost provide is to reduce recidivism by attempting to make it easier for released convicts to reintegrate into society. This is an effective way of supporting their argument because they are proving that the Punishment Imperative was ineffective and that their solutions will reverse the consequences brought about by
All the laws, which concern with the administration of justice in cases where an individual has been accused of a crime, always begin with the initial investigation of the crime and end either with imposition of punishment or with the unconditional release of the person. Most of the time it is the duty of the members of constituted authorities to inflict the punishment. Thus it can be said that almost all of the punishments are an act of self-defense and an act of defending the community against different types of offences. According to Professor Hart “the ultimate justification of any punishment is not that it is deterrent but that it is the emphatic denunciation by the community of a crime” (Hart P.65). Whenever the punishments are inflicted having rationale and humane factor in mind and not motivated by our punitive passions and pleasures then it can be justified otherwise it is nothing but a brutal act of terrorism. Prison System: It has often been argued that the criminals and convicted prisoners are being set free while the law-abiding citizens are starving. Some people are strongly opposed the present prison and parole system and said that prisoners are not given any chance for parole. Prisons must provide the following results: Keep dangerous criminals off the street Create a deterrent for creating a crime The deterrent for creating a crime can be justified in the following four types Retribution: according to this type, the goal of prison is to give people, who commit a crime, what they deserved Deterrence: in this type of justification, the goal of punishment is to prevent certain type of conduct Reform: reform type describes that crime is a disease and so the goal of punishment is to heal people Incapacitation: the...
From the aforementioned cases, it is evident to see that the Australian legal system has not always been fair and just, however, over time it has been shaped and moulded to clearly represent what is now considered to be fair and just in our society. From the procedures and presumptions of how the legal system is administered to the law and regulations which determine what is the crime and punishment – these are based on the transparency, equality, freedom from bias, human rights, and established set of rules adhere to the justice and fairness of the legal system.
Both legal and non-legal responses to Christopher Michael Dawson’s criminal case were mostly effective in achieving justice, however, there are factors that have restricted the overall efficiency of the Australian criminal justice system. Whilst Dawson’s eventual sentence resulted in justice for the victim, the legal and non-legal responses involved in the investigation present themselves to be mostly ineffective due to the prolonged process of conviction. Legal efforts made to ensure that the trial process was fair for the offender proved to be effective in achieving justice for Dawson himself. This then led to further retribution for the victim with the effective legal response and law reform of the government; the introduction of ‘no body, no parole’. Legal and non-legal responses have been somewhat effective in achieving justice throughout Chris Dawson’s case, but have shown limits in achieving this due to the convoluted nature and time efficiency of the case.
This form of justice emphasizes the philosophy that everyone deserves a second chance. The largely successful Norwegian prison system emphasizes the need to not treat criminals cruelly. Oftentimes, those who commit crimes have been bred in environments that have led them to where they are; sometimes they’ve been subject to childhood abuse. In cases like the Jassi Sidhu case, it would seem rehabilitation is a far off concept. The individuals that conspired to murder Jassi Sidhu have been bred to think a certain way their entire lives and changing that would not be an easy task. However if we punish individuals without attempting to help them better themselves, we as a society have reached a dead end, as Judge John Reilly said,” If we only punish wrongdoing with no attempt to fix the underlying causes, we only damage the web of our society.”
This type of legislation has been devised to allow for the detention of people based upon assessments of risk of re-offending, this essay will explore the concerns with these practices. This essay further aims to explore the moral and practical implications of such sentencing provisions and the impact it has on the whole Justice System. The writer will also address the conflicting goals of Corrections and the purpose and impact of indefinite sentencing while exploring the justifications against such legislation. This essay also aims to show that even though we may feel disgust for these types of offences we must remember the fundamentals of the Criminal Law system and understand that people are entitled to equality and fairness in the eyes of the law.
In a modern Western society where there is significant amount of research done of rehabilitation and criminal justice reform, the practice of sentencing JLWOP (Juvenile Life Without Parole) seems outdated and primitive. There are a number of prominent human rights groups that advocate for the banning of the LWOP sentence for juvenile offenders. In his 2010 article for the Journal of Offender Rehabilitation titled ‘Extinguishing All Hope: Life-Without-Parole for Juveniles,’ Frank Butler breaks down the ethical arguments against the sentence from a social policy perspective. He uses a number of pertinent facts and dates to support and enhance his argument, but retains a clear and concise presentation style, making the document easy to read and comprehend on an analytical level. It is clear from his title that it is not an objective piece, but his opinion is supporte...
Punishment occurs to individuals who break the law. It is also used to maintain the level of crime and to protect community members in Australia. To determine that society is content with maintaining the crime rate, this essay will discuss punishment types given to offenders and how society justifies the use punishment. Additionally, providing a brief overview of the community correction and prions rates to show that communities prefer to incarcerate lawbreakers. Highlighting that crime rates are being maintained by looking at the personal crime rate for assault before concluding that Australian society feel safe enough to allow the criminal justice system to sustain the crime rate.
The aims of sentencing include punishment, deterrence, rehabilitation, denunciation and protection. Punishment is used to punish the offender for their wrong conduct to an extent and in a way that is just in all circumstances and is intended to show public abhorrence from the offence. An example of a sentencing option that may be used to punish an offender includes imprisonment. A recent sentence imposed in the Tasmanian Supreme Court aimed at punishing an offender is the case of Michael Robert Keeling v State of Tasmania in which the judge needed to balance the need to punish the offender and the need to deter him and others from such conduct while keeping the best interests of the community in mind. Deterrent sentences are aimed at deterring not only the offender from further offences but also potential offenders. Specific deterrence is concerned with punishing an offender in the expectation they will not offend again whereas general deterrence is related to the possibility that people in general will be deterred from committing crime by the threat of punishment. An example of ...
Ultimately, Rachels offers a more comprehensive consideration of the different potential interpretations of moral desert. His comparison of three legal responses using four distinction values make it very clear to the reader that, despite concerns over the value of moral desert, retribution is the most desirable option currently available to the criminal justice system. His evaluation of retributivism, deterrence and rehabilitation answers Shafer-Landau's central assertion that a comparative evaluation of retributivism could not be made within a short article. Furthermore, Rachels's argument is more pragmatic, making intuitive sense to those who may
Before 1991, there was no statutory provision or general statutory framework comprising aims of sentencing which courts ought to rely upon. This had left the courts to decide on its own based on the facts of the case what is the best sentence for offender. However, by granting unlimited power of the court in fixing sentence, this caused uncertainty as on what basis the courts has reached upon such sentence. Hence, in 1991, CJA was set up in order to have a systematic approach to achieve aims of punishment. The main provisions under the 1991 Act were dominant by retributive theories which focused on sentences must commensurate with the seriousness of the offence. However, some parts of the legislation reflect utilitarian theories in the g...
In other words, their decisions were based solely on their notion of justice and views (Schmalleger & Hall, 2014,p. 467). Although these sentences were created to prevent crime from reoccurring, the issue of they are effective is ignored. The undermining issue is that the mandatory minimum sentences produce
Faruk Kromah Chapter 11 Reaction paper Chapter 11 of the textbook, "The Ethics of Punishment and Corrections ", talks about the ethics surrounding punishment and corrections that brings out the significant issues the society is struggling with today in the provision of incarceration and rehabilitation. The striking point that is being emphasized here is that the incarceration rates in the US are disproportionate when compared to other developed nations. As a result, a deep analysis of sentencing policies is required. The author drew the correct conclusion by making clear that the increase in incarceration levels since the 1980s was due to the perceptions of prosecutors and the legislators rather than a direct correlation with the crime rate.
Offenders are protected today by both the rule of law, ensuring that all offenders are treated equally, regardless of their age, sex or position in the community, and due process, which ensures that all offenders are given a fair trial with the opportunity to defend themselves and be heard (Williams, 2012). Beccaria’s emphasis on punishment being humane and non-violent has also carried through to modern day corrections. It is still the case today that offenders must only receive punishment that is proportionate to the crime they have committed and the punishment is determined by the law. The power of the judges and the magistrates to make decisions on punishment is guided by the legislation and they do not have the power to change the law (Ferrajoli,