Chapter 5 - Sentencing

Question 1

sanction

Answer 1

a penalty (e.g. a fine or prison sentence imposed by a court on a person guilty of a criminal offence

Question 2

conviction

Answer 2

a finding of guilt made by a court, whether or not a conviction is recorded. Where a conviction is recorded, it will form part of the person’s criminal record.

Question 3

recidivism

Answer 3

re-offending; returning to crime after already having been convicted and sentenced - 43% in Victoria

Question 4

rehabilitation

Answer 4

one purpose of a sanction, designed to address the underlying causes of offending, and reform an offender in order to prevent them from committing offences in the future
- for rehabilitation to be relevant, the offender must demonstrate remorse

Question 5

community correction order (CCO)

Answer 5

a flexible, non-custodial (not prison sentence) sanction that the offender serves in the community, with conditions attached to the order
- eligible if found guilty for an offence punishable by no more than 5 penalty units, the court has received a pre-sentence report, and the offender consents
- N/A for category 1 offences and generally category 2 offences

Question 6

punishment

Answer 6

one purpose of a sanction, designed to penalise (punish) the offender and show society and the victim that criminal behaviour will not be tolerated and allow them to feel that justice has been done.

Question 7

deterrence

Answer 7

one purpose of a sanction, designed to discourage the offender and others in the community from committing similar offences

Question 8

general deterrence

Answer 8

one purpose of a sanction, designed to discourage others in the community from committing similar offences because they see the consequences of committing the crime.
Whether this purpose is achieved depends on people knowing the sentence that is being imposed.

Question 9

specific deterrence

Answer 9

one purpose of a sanction, designed to discourage the offender from committing further offences
- an important factor is whether the offender has prior convictions, which would increase the priority of deterrence

Question 10

denunciation

Answer 10

on purpose of a sanction, designed to demonstrate the court and community’s disapproval of the offender’s actions

Question 11

protection

Answer 11

one purpose of a sanction, designed to safeguard the community from an offender by preventing them from committing further offence (e.g. by imprisoning the offender)

Question 12

indefinite sentence

Answer 12

a term of imprisonment that has no fixed end date, usually given to the most serious offenders

Question 13

fine

Answer 13

a sanction that requires the offender to pay an amount of money to the state

Question 14

imprisonment

Answer 14

a sanction that involves removing the offender from society for a stated period of time and placing them in prison

Question 15

parole

Answer 15

the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served

Question 16

non-parole period

Answer 16

the minimum term a prisoner must serve before they can be given parole

Question 17

remand

Answer 17

the situation where an accused is kept in custody until their criminal trial can take place

Question 18

concurrent sentence

Answer 18

a sanction that is to be served at the same time as one or more other sentences; usually given in relation to two terms of imprisonment

Question 19

cumulative

Answer 19

where two sentences are imposed, and are two be served one after the other

Question 20

aggravating factors

Answer 20

facts or circumstances about an offender or an offence that can lead to a more severe sentence
eg: - the use of violence, explosives or a weapon when committing the offence
- where the offending was planned or premeditated
- the nature and gravity of the offence (e.g. if the victim suffered a particular type of brutality or cruelty, or the offence involved family violence, or the offence was unprovoked)
- any vulnerabilities of the victim (such as having a disability or being very young, old or frail)
- the offender being motivated by hatred or prejudice against a group of people with common characteristics
- the offence taking place in front of children, or seen by them
- a breach of trust by the offender towards the victim (e.g. the offender was in a position of trust such as a parent who has abused a child or a teacher who has committed a crime against a student)
- prior convictions of the offender
- the offence occurred while the offender was on a CCO, on parole or on bail.

Question 21

mitigating factors

Answer 21

facts or circumstances about the offender or the offence that can lead to a less severe sentence
e.g. - the offender showed remorse (can often be demonstrated through the offender’s conduct after the offence, such as cooperating with the police, pleading guilty early, or general behaviour at court hearings)
- the offender has no prior criminal history or is of good character
- the offender was acting under duress
- the offender has shown efforts towards rehabilitation while awaiting sentencing, or has good prospects of rehabilitation
- the offender was under personal strain at the time or they have a unique background, which means a lighter sentence should be imposed (eg_ they have had a difficult and violent childhood)
- the effect that prison may have on the offender (e.g. courts have identified that prison may not be suitable for offenders with serious mental health issues)
- the injury or harm caused by the offence was not substantial, or there was no risk to any people
- the offender was young, or had some disability that made them not fully aware of the consequences
- the offender pleaded guilty early

Question 22

guilty plea

Answer 22

when an offender formally admits guilt, which is then considered by the court when sentencing, as it save time and money for the court, and prevents re-traumatisation of victims -> reduction in sentence -> earlier = greater reduction

Question 23

victim impact statement

Answer 23

a statement filed with the court by a victim that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence

Question 24

What are the core conditions of CCOs

Answer 24

the offender:
- must not commit another offence punishable by imprisonment during the period of the order
- must report to a specified community corrections centre within two working days of the order coming into force
- must report to and receive visits from a community corrections officer
- must notify an officer of a change of address or employment within two working days after the change
- must not leave Victoria without permission
- must comply with any directions of community corrections officers

Question 25

What are additional conditions of CCOs

Answer 25

- unpaid community work (must not exceed 600 hours) -> purpose is to adequately punish offender - treatment and rehabilitation - designed to address the causes of the offending and rehabilitate - Supervision (by a community corrections officer) - Non-association - Residence restriction or exclusion - place or area exclusion - curfew - alcohol exclusion - bond - judicial monitoring - electronic monitoring justice plan (for intellectually disabled offenders)

Question 26

How do fines meet the purpose of punishment

Answer 26

fines can serve to punish the offender by requiring them to pay money to the state. Factors impacting the ability to meet punishment: - the financial circumstances of the offender - the amount of the fine (high enough to be a burden) - whether the offender is a person or a company - whether the fine is paid and/or enforced

Question 27

How do fines meet the purpose of deterrence

Answer 27

Specific deterrence -> impacted by: - the financial circumstances of the offender and their ability to pay - the amount of the fine - whether the offender is a person or a company - whether the fine is paid and/or enforced General deterrence -> can act as a general deterrent by discouraging other members of the public from committing a similar offence as they know they will be required to pay a sum of money Impacted by: - the amount of the fine and the circumstances of people in the community - whether the fine is enforced - the extent to which the fine is known to the community -> fines are easily understood

Question 28

how do fines meet the purpose of denunciation

Answer 28

impacted by: - the nature of the offence and the fine imposed -> a larger fine (e.g. level 2) may send a stronger message than a smaller fine (e.g. level 12), which may be insufficient - whether the fine is enforced

Question 29

how do fines meet the purpose of rehabilitation

Answer 29

Fines are not effective in addressing the underlying causes of behaviour. However, may help conditions the offender to avoid certain types of behaviour (such as speeding)

Question 30

how do fines meet the purpose of protection

Answer 30

Fines do not focus on protection, but could be achieved if the offender is deterred from reoffending

Question 31

how do CCOs meet the purpose of punishment

Answer 31

impacted by: - the length of the CCO (a CCO that is shorter is less likely to feel punitive than a longer CCO) - The mandatory conditions imposed -> many of the mandatory conditions, particularly the requirement not to leave Vic without permission, can punish an offender - The nature of the additional conditions imposed -> more restrictions = greater burden - The restriction of a person's liberty -> there is not a complete loss of liberty

Question 32

how do CCOs meet the purpose of deterrence

Answer 32

Specific deterrence -> impacted by: - the length of the CCO - the mandatory conditions imposed _. conditions such as not committing another offence punishable by imprisonment - the nature of the additional conditions imposed -> whether the conditions imposed seek to minimise the risk of the offender reoffending General deterrence -> impacted by: - the nature of the CCO -> overly restrictive etc - whether the CCO is communicated to the public

Question 33

how do CCOs meet the purpose of denunciation

Answer 33

impacted by: - the length of the CCO - the conditions imposed (harsh = disapproval)

Question 34

How do CCOs meet the purpose of rehabilitation

Answer 34

impacted by: - the conditions imposed (treatment conditions etc) - active participation - offender circumstances, such as friends and family, and employment

Question 35

How do CCOs meet the purpose of protection

Answer 35

impacted by: - whether the offender is rehabilitated and deterred - additional conditions imposed

Question 36

How does imprisonment meet the purpose of punishment

Answer 36

can achieve punishment due to its punitive nature and the fact that offenders lose their freedom and liberty. Impacted by: - the length of the imprisonment term - the offender's circumstances

Question 37

how does imprisonment meet the purpose of deterrence

Answer 37

Specific deterrence -> impacted by: - the length of the imprisonment term - the offender's circumstances - the nature of the imprisonment term -> prison can normalise violence and reinforce criminal behaviour -> can be disruptive and traumatic - recidivism rate of 42% General deterrence -> can act as a general deterrent because of its custodial nature and given the seriousness of the sanction. -> impacted by: - the circumstances of the offender - the length of the sentence

Question 38

how does imprisonment meet the purpose of denunciation

Answer 38

by taking away a person's liberty, imprisonment sends a strong message to the community that this type of behaviour is not acceptable. -> impacted by: - the length of the sentence - communication of the sentence to the public

Question 39

how does imprisonment meet the purpose of rehabilitation

Answer 39

Generally not a focus, however can be achieved depending on: - programs available (and their relevance to the individual) - whether the offender is willing to participate - the offender's prospects of rehabilitation (including remorse or criminal record) - whether the offender has any addictions - the length of the sentence -> (shorter sentence = greater focus on rehabilitation) the custodial nature of imprisonment and the restrictions imposed on the offender may mean that rehabilitation is harder to achieve. 'Crushing' sentences may impact on an offender's prospects of rehabilitation - recidivism rate of 42% shows that imprisonment isn't effective in rehabilitation

Question 40

how does imprisonment meet the purpose of protection

Answer 40

achieved as the offender is removed from society, but there should also be consideration to long-term protection. -> impacted by: - the length of the sentence - circumstances of the offender (e.g. prior convictions = more likely to harm again once released) - whether the offender is treated - parole and high recidivism can impact protection

Question 41

purposes of the Sentencing Act 1991 (Vic)

Answer 41

- promote consistency of approach in sentencing - provide fair procedures for imposing sanctions - prevent crime and promote respect for the law

Question 42

principle of parsimony

Answer 42

When imposing a sentence, the judge or magistrate must not impose a sentence that is more severe than necessary

Question 43

what influences the amount of a fine?

Answer 43

- the financial circumstances of the offender - whether other orders have been made in relation to the taking of an offender's property or orders requiring the offender to make amends or pay compensation - any loss or destruction of, or damage to, property suffered by a person as a result of the offence - the value of any benefit to the offender as a result of the offence