Sentencing Flashcards
How can victims participate in the sentencing hearing?
Victims will participate by reading/having read a victim impact statement (VIS).
o A VIS addresses the injury, loss or damage suffered by the V as a direct result of the offence.
Admissibility of VIS
o The court can rule on the admissibility of the contents of a VIS (s 8L).
How is VIS put on the court record?
o They can be read aloud by the victim or a nominated person, including the prosecutor (s 8Q).
Can the prosecutor submit for a sentencing range?
The prosecution can no longer put a “range” to the judge (Barbaro). However, both parties can advise the judge on “current sentencing practices”.
Accepting mitigating and aggravating circs in sentencing
- If judge relies on facts as an aggravating feature must find that fact established beyond reasonable doubt
- If judge relies on a fact as a mitigating feature must be satisfied of that fact on the balance of probabilities (Storey).
What is the sentencing purpose?
The purposes of sentencing are captured in s 5(1): a sentence must be imposed only for one or more of these purposes and not for any other purpose (e.g. cannot be imposed for the offender’s own good)
- Punishment
- Denunciation
- Deterrence
- rehabilitation
- Community protection
What is the purpose of denunciation?
Requires a sentence to communicate – through its type or duration – society’s condemnation and disapproval of the conduct.
It’s a statement that the offender’s conduct should be punished for infringing on society’s values as embodied in the criminal law. This principle ‘serves to reinforce the standards which society expects its members to observe’ (WCB v The Queen [2010]).
What is the purpose of deterrence?
According to s 5(1)(b), a sentence should be imposed to deter the offender or other persons from committing offences of the same or a similar character.
General Deterrence deterring others tempted to offend in the same way by the possibility of a severe sentence.
Specific Deterrence deterring the offender being sentenced from future criminal conduct.
Weight to be given to specific or general deterrence will be influenced by:
o The prevalence of that particular offence or category of offences;
o The difficulty of detection of the offence;
o The offender’s antecedents;
o The offender’s prospects of rehabilitation; and
o Whether the offender was on bail or parole at the time of the offending.
What is the purpose of rehabilitation?
The public interest is served by rehabilitating offenders to stop committing crimes, and a court should reward steps taken towards rehabilitation by giving them due weight in determining the sentence to be imposed.
Rehabilitation of the offender has two parts: remorse and reform. Both must be demonstrated, and less weight is given to rehabilitation if there is a lack of genuine remorse or a mere absence of further offending. Remorse is measured by post-conduct action.
A guilty plea may indicate remorse and rehabilitation failure to plead guilty is not itself a basis for finding that an offender has no prospects of rehabilitation.
What is the purpose of community protection?
Where offending demonstrates that the offender is a danger from which the community ought to be protected. Community protection can be affected by emphasizing an offender’s prospects for rehabilitation in some circumstances.
What factors must be considered in sentencing
According to s 5(2), the Court must take into account the following when imposing a sentence:
The maximum penalty fixed by parliament;
The standard, if any, for the offence;
Sentencing practices applied in other/similar cases;
The nature and gravity of the offence (both the type of offence before the Court and the specific offence before the Court as an example of that type of offending):
the gravity of the offence type is determined by reference to the maximum penalty;
the gravity of the specific offence is determined by reference to matters such as:
* planning and scale;
* intent and knowledge;
* role and status;
The offender’s involvement and degree of responsibility for the offence;
Any motive based on prejudice;
Impact on the victim;
Personal circumstances of the victim;
Any injury, loss or damage resulting directly from the offence;
Plea and the stage of the proceedings at which the offender pleaded guilty (s 6AAA – sentence discount for guilty plea);
The offender’s previous character (s 6: includes prior criminal history; reputation; contributions to the community);
Any aggravating and mitigating circumstances.
What are the sentencing principles?
- proportionality
- parsimony
- totality
- parity
What is the principle of proportionality?
The sentence imposed should be proportionate to the gravity of the offence considered in the light of the circumstances, including the maximum statutory penalty for the offence, the degree of harm, the method of committing the offence, and the offender’s culpability.
NB: In circumstances where an offender is a ‘serious offender’, a court may impose a disproportionate sentence for the purpose of protecting the community (s6D).
When can the court impose a disproportionate sentence?
In circumstances where an offender is a ‘serious offender’, a court may impose a disproportionate sentence for the purpose of protecting the community (s6D).
What is the principle of parsimony?
Requires the sentencer to select the least severe sentencing option which is open to achieve the purpose or purposes of punishment in the instant case.
Parsimony also applies to the length of the sanction.
What is the principle of totality?
Requires a Court in sentencing A for multiple offences to ensure that the aggregate term it imposes is ‘a just and appropriate measure of the total criminality involved’.
There must be appropriate relativity between the totality of all crimes and the totality of the effective length of the sentences. It is preferred to impose an individual terms, that satisfy all the sentencing objectives, and then make them wholly or partially concurrent.
Why imposing individual sentences is preferred?
. It is preferred to impose an individual terms, that satisfy all the sentencing objectives, and then make them wholly or partially concurrent.
This is the preferred approach because:
* Ensures that each sentence appropriately reflects the criminality of each offence
* Ensures that if one or more sentence or conviction is set aside, that the remaining sentences will be appropriate and will allow a new total effective sentence and non-parole period to be calculated
* Avoid artificial claims of disparity by co-offenders aggrieved by the inadequate individual sentences.
What is the principle of parity?
According to s 1(a), the purpose of the Act is to promote a consistent approach in sentencing.
In short, when two or more co-offenders are sentenced, any significant difference in the sentences should be capable of a rational explanation.
Where co-offenders are sentenced for the same offence or offences, the sentences imposed should be proportionate to. Their respective degrees of culpability, and to the various personal factors of aggravation and mitigation (Postiglione).
The court must assess the individuals and the circumstances. Their ages, backgrounds, criminal history, health, characters, and roles played in the offending are all relevant and may justify disparate sentences. A comparative analysis of the culpability and circumstances of co-offenders is vital to application of the parity principle. To facilitate, it is preferred that all co-offenders are sentenced by the same judge at the same time, and where this is not possible the judge imposing the later sentence should informed of the sentence already imposed and its circumstances.
What is Instinctive Synthesis in sentencing?
all of the relevant factors are taken into account and result in a sentence reflecting a combination of these relevant matters.
This means that there is no single available sentence and allows discretion amongst judges to differ on what is the appropriate sentence in a given case. A judge must provide reasons for sentence.
What is deferral of sentence?
The Court can defer sentence for up to 12 months if it is in the interests of the offender, and for the purposes in s 83A(1A).
Which courts can defer the sentence?
Magistrates’ court and county court
What factors should the court consider when deciding whether to impose a disposition with or without conviction?
s8
(1) In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
CCO’s more than 2 years can only be
WITH Conviction
