Intro
Sentencing decisions are affected by both taking in consideration towards aggravating and mitigating circumstances. These factors of sentencing decisions intend to offer fair retribution to conciliate for the needs of the victim, individual rights of the offender and society’s desire for justice. In light of recent affairs, in the case of R v Gittany (No 5) [2014] NSWSC 49 it is proven that careful consideration must be given to balance the rights of every party.
If you are arguing that this has been proven, then you should also discuss why you believe so. Prominent factors
like such as mandatory sentencing can
tip the end of the scales in favour for one party instead of the other. I think that it would be better to try to use more formal language, and avoid using colloquial terms and idioms such as ‘like’ and ‘tip the end of the scales in favour for one party instead of the other’. Ultimately, the sentencing decision is objective in every case as it cannot account for being completely free of impartiality.
A solid intro here, but if a question begins with ‘assess the extent’ then I think you should try to clearly address this in the intro – you could consider how the ‘factors’ you’re discussing may be:
- effective, but its effectiveness is limited by …
- mostly ineffective, but has had small successes in …
You could evaluate the ‘effectiveness’ of these ‘factors’ by referring to the criteria outlined in the syllabus, and whatever criteria you can identify in the question (here, it would be how effectively they balance the rights of the three parties).
(I think it’s more interesting for a marker if you showcase both sides of an argument rather than completely agreeing with one view – and it’s a way to demonstrate your diverse knowledge).
A general way you could structure an introduction could be mentioning which ‘factors’ you’ll be discussing in your essay at the beginning of your intro, and then elaborating these ideas and their effectiveness a bit further in the rest of your intro. Victim
Fairness, respect and dignity is given to the victim, which is essential in obtaining justice for the death of the victim involved as
it is outlined in the Crime Victims' Rights Act (2004) government legislation.
You can argue that these are important to achieve justice for the victim, but do you think that these are present in every case in the justice system? In R v Gittany
I would mention the year and court that the decision was made in here, like you did earlier, Judge Lucy McCallum sentenced Simon Gittany to 26 years in jail with a non-parole period of 18 years for throwing his fiancée, Lisa Harnum, to her death from the balcony. In ensuring a just penalty was put unto Gittany, this sentencing decision accounted for the needs and rights of the victim and her family. During victim liaison, the police officer contacted Lisa’s family in a passable and timely manner, concentrating on recognising the needs of her family,
which is demonstrating the responsiveness
in the criminal investigation process of the legal system. Good use of criteria here! The police found proof of her murder (Evidence Act 1995 NSW)
I’m not sure why you mentioned this legislation here – did you mean that their investigation was conducted under the guidelines set in this law? I would elaborate further using more evidence, it seems like a claim rather than fact right now. However, there was a continuation of trauma in court and by
incessant media for the family
in what was meant to be a cathartic experience. It’s important to stay objective when you’re writing, and this sounds too much like a personal opinion. The mother of the victim, Joan Harnum, comments to media reporters that “There [are] no winners in this thing. Two families’ lives have been changed forever. We lost our daughter. His family has gone through a lot.”
I think this is a good piece of evidence! The victim can never feel properly compensated as two lives once intertwined were both destroyed by one murder. Again, I think that this sounds too much like a personal opinion, and I’m not seeing how this links to answering the question. In the Sydney Morning Herald in 2013, Joan Harnum further expresses that her daughter “…wanted to leave and he stopped her. That’s all he had to do, is let her go.”
The evidence that you’ve used here is a comment about the victim’s experience, but not about how the factors of sentencing decisions in the legal system impact the victim’s rights and access to justice. The case had accessibility for the victimised and the correct process of validation in victim impact statements.
I haven’t really seen anything in your argument about accessibility for victims, or any earlier mentions about victim impact statements. Overall, I think that this paragraph strayed from the question a little bit. You’ve included some potentially strong evidence, though, and if you can link these to the criteria to evaluate the effectiveness of the legal factors you’ve chosen, your arguments can become stronger .
Offender
The rights of the offender in sentencing decisions is to have an impartial judicial discretion to ensure
correct fair judgement.
It would be useful to mention any legislation that mentions this. In R v Gittany, his bail was revoked and remained in custody by the Corrective Services under the Bail Act (2013). However, the rights of the offender were met by the decree of a judge-alone trial,
as the jury was influenced by the media. If you want to include this, I would find evidence to support this – again, it sounds like a personal opinion rather than fact right now (even if it is true)! For Simon Gittany, the case stated it was an aggravating factor that he deliberately lifted Lisa Harnum over the balcony and that this defendant was “controlling, abusive and dominating.” The mitigating factor for Gittany was that the dysfunctional relationship was claimed by his lawyer to have been, “characterised by affection and love.” The judge Lucy McCallum did take these factors into her sentencing decision, commenting on 27 November 2013 that “life imprisonment would be excessive.”
I like the evidence that you’ve used here! This 26-year imprisonment with non-parole period of 18 years is effective in justice for the offender as it noted his “state of uncontrolled rage” moments before his fiancée’s death and balanced this with his protection of individual rights.
I would mention evidence here to support why you believe that this decision protects his rights. Gittany then also had the offender’s rights to appeal this sentencing decision. He appealed on the grounds that the Crown Witness was unreliable due to the unconscious reconstruction of memory and the verdict was unreasonable. Justice Basten overturned the appeal as he found no errors in the witness nor erring from the law by the previous judge.
Therefore, Simon Gittany’s offender rights were in place upheld and he was still to be convicted of his liabilities.
Do you have any evidence to show that his rights were upheld? Contrastingly, the case of R v Silva (2015) highlights the rights of the offender presiding over the victim, effectively reducing the sentencing decision of manslaughter to 18 months of imprisonment. Justice Clifton Hoeben comments, “The offender is unlikely to reoffend and has good prospects of rehabilitation.” In R v Silva, the rights of the offender were placed over that of the victim’s
and this creates an inconsistency of sentencing decisions for future victims who need justice. Again, I would mention any evidence here that supports your claim – it seems like a personal opinion right now.
This uncertainty further infiltrates the wider community. This sounds like a personal opinion, and also isn’t really relevant to the question. Judicial discretion was implemented; therefore,
the offender’s rights were upheld (NSW Court, 2016). Even if you believe that the offender’s rights were upheld, it would also be useful to comment on the rights of the other parties (the victim and society) to link back to the question. I’m also not sure why you mentioned NSW Court, 2016? Society
Societal needs must be met in order for future law reform to reflect the values of the community. In R v Gittany, the maximum sentence for murder is life imprisonment, with the mandatory requirement of 20 years for inflicting grievous bodily harm
as outlined in the Crimes Act (1900) NSW.
If there is an intention by the accused onto the victim, the community needs to know individual rights will be protected for both and justice is achieved. This sentence is a bit hard to follow. The judge upheld this throughout the case to reflect societal values and future law by sentencing Simon Gittany to 25 years. In 2016, in the Supreme Court, there were 37 convicted defendants for murder with 100% receiving custodial sentencing, reflecting that the court hierarchy protects society’s needs by imprisoning serious offenders (NSW Bureau of Crime Statistics and Research, 2016).
Good! In light of mandatory sentencing, the judge in R v Gittany effectively had judicial discretion.
I’m not sure what you’re trying to say here. Judges use their discretion to make decisions in sentencing, but mandatory sentencing can limit their discretion (and at times, justice for particular parties). In other cases due to the judge’s decisions, the community changes their societal values and believes “The victim is faulted for having become victimised. By blaming victims, others seem to believe that they, themselves are less vulnerable to crime.”
A good piece of evidence here, but I don’t think you should claim this about the community. Perhaps you could use the evidence to comment on how sentencing decisions may influence public opinions towards victims, which may impact their experience in the justice system, but I don’t think this would work well with the question. (Presidents Task Force: 1986:9). The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) acknowledges this issue imbued in society, claiming in the treaty that “A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted.”
Nice mention of an international document! Conclusion
There is a conflict of interest between balancing retribution for the victim and the offender’s rights, under the overarching code of society’s needs. It is evident these were largely balanced in R v Gittany (No 5) [2014] NSWSC 49. Yet in many sentencing decisions this is not always the case. Therefore, sentencing decisions are vital in the legal court to be impartial and uphold justice. It is proven that sentencing decisions reflect the ethics of law to protect individual rights throughout the court process.
I would also mention something that directly links to or addresses the question.