Discretion
Brittany Kerin
Discretion
 Discretion is the power or right to make official decisions and
judgements, whilst using professional reason, to choose from
among acceptable alternatives.
Abuse of Discretion
 An abuse of discretion occurs when a decision made is:
 unacceptable
 does not achieve justice for both the individual and society.
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.
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.
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.
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).
Case: R v Dawes
 Daniella Dawes charged with the murder of her 10 year old son who
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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
Daniella’s situation and used his discretionary power to substantially
lower Daniella’s sentence.
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.
Limits of Police Discretion
 Legislation
 Crimes Act 1901
 The enactment of new laws (such as the mandatory arrest
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laws for domestic violence)
The allocation of funds
Certain prosecutorial policies set by the Director of Public
Prosecutions
Police policies
Specific guidelines
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
Discretion
 Discretion raises issues of:
 Fairness
 Equality
 Allows for:
 Inconsistency
 Unpredictability
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.
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 officer’s
response to a specific situation will vary.
‘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”.
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.
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.
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.
Thank you