Sentencing Principles Flashcards
what are the s57 purposes of sentencing
punihsment of offenders
reduction of crime
reform and rehabilitation
protection of the public
reparation by offender to persons affected
how is the seriousness of an offence determined?
culpability of offender and harm caused - then agg/mit factors applied
what aggravating factors MUST the court consider under statute
previous convictions
racial/religious aggravation or hostility toward disability, sexuality or identity
terrorist connection
what factors indicate it may be appropriate to impose a suspended sentence?
realistic prospect of rehabilitaion
strong personal mitigation
immediate custody will result in significant harmful impact on others
general mitigating factord
good character
no previous
youth/immaturity
remorse
serious illness
significant duress to committ offence
provocation
significant delay since committal (where no fault of D)
steps taken to address offending behaivour
What is the totality principle?
overall sentence should reflect all of the offending behaviour with ref to overall harm, culp and agg/mit AND
be just and proportionate
when must the court obtain a pre-sentence report
where offender is over 18 - unless unnecessary
where under 18 - unless previous pre-sentence report exists AND that is sufficient and no need for another
must a victim impact statement be made and what is it for?
to allow victim/close relatives of the deceased to divulge psych impact of offending for court to take into account - not mandatory, not for them to suggest sentence
when must a medical report be ordered?
where offender appears/is suffering from mental disorder - unless unecessary in circs
what is the procedure from R v Goodyear RE indication of sentence
- D must make application for indication
- court has power to say it will remain same/same type whether G plea is entered of G after trial - but if different for plea must only give that
- court may refuse to give indication or delay without reason - remains open to D to apply further
- indication to be given with reasons in open court but normally wihtout jury and reporting restrictions
- indication binding on that judge and any judge who takes over case UNLESS guideline changed
- D must plea within reasonable time
- where approp should be an agreed written basis
when will co-D who pleaded G normally be sentenced
at conclusion of trial of any co-d who pleaded NG
How will sentencing hearing flow?
- prosecution open with facts of offence and summary if necessary
- any pre-sentence reports considered - med, psych, community service
- P adopt neutral tone - raise any ancillary matters, impact, avoid appealable errors possible a plea/sentence doc which summarises agg/mit factors
- all counsel to appropriately assist court with ref to sentencing powers and guidelines
- D to plea in mitigation
- Judge passes sentence (normally after small adjournment)
how should victim impact statement be deployed?
D to have sight of it - up to date, witness statement
what is procedure for basis of plea?
- D to provide a written basis of plea to prosecution/court
- P accept or reject - where disputed court entitled to require a newton hearing
- where absurd judge may reject out of hand
- on hearing reps - where would not make substantial different - come down on side of D
- if does make a difference - have newton hearing and follow that
what is role of judge, pros and def in newton hearing?
judge = tribunal of fact and law
pros - to satsify J beyond reasonable doubt their version is correct - can call witnessess and XX
def - cannot be compelled but adverse inference may be drawn if choosing to stay silent on something within their knowledge
