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Assess the role of discretion and its application in the criminal justice system.

Discretion refers to the freedom to decide what should be done in a particular situation. This can be seen in both a positive and negative light as the police and court can both use discretion which can be damaging to either party in court in terms of achieving justice. The role of discretion within the criminal justice system has many advantages and disadvantages in the way it deals with achieving justice for individuals. Discretion can be explored through contemporary examples within the criminal justice system from the investigation process till the punishment. The Law Enforcement (Powers and Responsibilities) Act 2002 outlines the powers the police have been given and can carry them out under their discretion. In the newspaper article NSW police probe unnecessary Tasering (ABC News 15/06/09) we see how a 38 year old man is taking civil action for the alleged misuse of a Taser by NSW police. However the State defended this as the police used it only to bring perpetrators to justice and that the sight of a Taser has been able to resolve conflict in 55% of the time it has been pulled from the holster. The Tasers have also been fitted with built in video cameras which record as soon as it is unholstered in order to discourage improper use of them by the officers. This shows that police powers regarding Tasers can be used at their discretion and that it is only used in order to benefit the criminal justice system and has been effective in benefitting the justice system. In some situations when police use their discretion, it may be both effective and ineffective. In the Newspaper article No Toying with Doncaster pistol pointer (Manning Ham-leader 07/03/12) we see how police used discretion when applying the law and focus on the intent of any person found carrying an imitation firearm after a series of calls were made to police where a 44 year old man used a toy gun and pointed it at traffic. After a reform in July last year and toy which could be mistaken for a legitimate gun could be classified as a prohibited weapon, which the possession of, carries a maximum penalty of two years. However due to police discretion this prank was seen as a prank and the offender escaped receiving up to 2 years imprisonment, showing the benefits of discretion for the accused in this case. However the victims in this case said that they feared for their lives and believed that justice was not achieved since the accuseds punishments were far from what they deemed sufficient. This case shows how police discretion has had both a positive and negative effect from a single case. The burden and standard of proof is essential to the criminal trial process. The collection of evidence is up to the discretion of the detectives and is a crucial aspect in the criminal trial process. In the case of R vs Porter (1936, where Porter used the defence of insanity for the murder he committed. This type of discretion allows an individual for the chance to be actively involved within the trial process. Sentencing and punishment has actively involved the discretion of judges and magistrates in affecting the decision of the sentencing. The newspaper article Die in Jail: Carrs new sentences outlines how new laws will allow judges to use their discretion to impose a penalty below the minimum standard after giving an explanation for their decision. However if unable to give an explanation the minimum prison sentence must be imposed unless there are mitigating factors. The aim of this is to seek protection, rehabilitation and deterrence so in order for post-sentencing considerations, judicial discretion is involved. The justice system commonly fails to look at the considerations of the victims and

Pranav Nagaraj

the newspaper article Victims must be heard in sentencing (SMH 25/10/10) where the Attorney General, John Hatzistergos explains the importance of hearing the victims review in order to make the sentencing and punishment more effective and it emphasises that in order for the judiciary to use their discretion to bring justice, they must implement appropriate procedures into post-sentencing considerations. On the whole, the use of discretion in the criminal justice system can be said to be partially effective within the system as it can be flawed and have an adverse effect on either parties. However discretion is an area within the criminal justice system which needs to be reformed in order for it to be truly effective in achieving justice for all parties in the criminal justice system.

Pranav Nagaraj