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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 8 February 2008

List of subheadings:

Mercy Under the Crimes Act 1914 (Cth)
Royal Prerogative of Mercy
- Definitions
- Pardons
--- Legal Effect of a Pardon

Court Exercise of Mercy
--- Mercy and Dependants
--- Mercy and Life Expectancy
--- Mercy and Mental Condition

Court Exercise of Mercy

The Court has an inherent and longstanding historical power to exercise mercy where the individual circumstances of the offender, or the offence, so warrant. See R v Osenkowski (1982) 30 SASR 212, [212]-[213] (King CJ); Morrison v Behrooz (2005)155 A Crim R 110, [46].

Edney and Bagaric explain that the receptivity of courts to mitigating factors permits values such as understanding, compassion and mercy to operate when determining criminal sentences. [6]

In Miceli [1998] 4 VR 588, Tadgell A comprehensively discussed the principles surrounding the court exercise of mercy. In that case he stated that:

an element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion. [7]

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The Exercise of the Discretion

In Cobiac v Liddy (1969) 119 CLR 257 Windeyer J discussed the place of mercy in the sentencing process. He stated that:

a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. [8]

In Morisson v Behrooz Gray J gave examples of circumstances in which an offender may rely upon the principle of mercy:

The discretion to adopt a merciful approach to sentencing should only be used in circumstances where weight should be given to factors which are ordinarily not regarded as relevant mitigating circumstances. For example, the principle of mercy is often sought to relieve or compensate for hardship which resulted either from the offence or from the sentence that would be imposed. In order to demonstrate sufficient hardship in this context, there is a need to identify a significant burden to be borne in addition to punishment -- for example, a substantial economic, social or other disability. [9]

The exercise of mercy cannot interfere with the application of proper principles in sentencing.

In R v Kane [1974] VR 759, the Court stated:

mercy must be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment. If a court permits sympathy to preclude it from attaching due weight to the other recognized elements of punishment, it has failed to discharge its duty. [10]

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Mercy and Dependants

In exceptional circumstances, a Court may exercise mercy on the basis of hardship suffered by others in respect to the imprisonment of the offender.

In R v Carmody (1998) 100 A Crim R 41, a husband and wife had both been convicted of serious drug trafficking offences. They had a four-year old son who suffered from febrile convulsions. It had been demonstrated that in the time during which he had been separated from his mother, the young boy's health had deteriorated significantly. The court held that the applicant's sentence should be shortened:

on the sole ground that some mercy was warranted. It is really mercy to the child that is deserved, the law having immemorially shown tenderness to the very young, the very old and the sick. [11]

In his judgment, Tadgell JA stated:

We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it. [12]

See further Effect on Offender's Family or Dependants.

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Life Expectancy

In certain circumstances, the limited life expectancy of the offender may be a relevant consideration in the imposition of a sentence of imprisonment.

In Mitchell (2000) 112 A Crim R 315, the offender was diagnosed with serious illness after the time of sentencing which reduced his life expectancy to 12 months. On appeal the Court found that this was an appropriate case in which to exercise mercy and reduce the length of the term of imprisonment to be served.

This is in contrast to the decision of the Court in Benham (2000) 111 A Crim R 302. In that case the Court found that an offender with severe emphysema and a life expectancy of two years was not to benefit from any reduction in sentence. McPherson JA stated:

It may seem, and no doubt is, rather callous and heartless to say so, but, apart from the loss of personal liberty necessarily involved in the imprisonment of the applicant, it does not appear to me that the applicant will be much worse off in prison than he is now at home... The consequence is, of course, that if he serves out the term of his imprisonment, even as reduced by the parole recommendation if given effect, that he will die in prison. One may have considerable sympathy for a person who spends the remaining last few years of his life in that environment, but I am not at all persuaded that it is the kind of sentiment to which we should give effect in reduction of this sentence. [13]

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Mental Condition

In certain circumstances, an offender suffering from a mental illness may benefit from the exercise of mercy by the court. In Paparone 112 A Crim R 190, [197] Murray J stated that notwithstanding any lack of connection between the offending and the mental condition,

if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon a particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general sentencing principles of sentencing, to moderate the punishment or choose an alternative disposition.

See further Factors to Consider When Sentencing a Person with a Mental Illness.

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Footnotes

[1] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed, 1999), 21.

[2] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed, 1999), 22.

[3] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed, 1999), 22.

[4] Milnes & Green (1983) 33 SASR 211, [237] (Legoe J) citing Bullock v Dodds (1819) 106 ER 361, [364], [368]; Rudd (1775) 168 ER 160, [162].

[5] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed, 1999), 563.

[6] R Edney and M Bagaric, Australian Sentencing, Principles and Practice, 2007, 149.

[7] [1998] 4 VR 588, [592].

[8] (1969) 119 CLR 257, [269].

[9] Morrison v Behrooz (2005)155 ACrimR 110, [49].

[10] R v Kane [1974] VR 759, [766].

[11] R v Carmody (1998) 100 A Crim R 41, [45] (Tadgell JA)

[12] R v Carmody (1998) 100 A Crim R 41, [45].

[13] (2000) 111 A Crim R 302, [304]- [305]. See also Zehir (1998) 104 A Crim R 109.