SENTENCING AND PUNISHMENT CRIME yr12

Question 1

Sentencing hearing

Answer 1

a hearing following a finding of guilt in which a magistrate or judge will determine the sentence to be given to the accused

Question 2

Statutory and judicial guidelines

Answer 2

judiciary has discretion to select type of sentence and length of time served. However, it is limited by statutory and judicial guidelines.

Question 3

Maximum penalties

Answer 3

legislation which prescribes offence usually prescribes maximum penalty.

Question 4

Crimes (sentencing procedure) Act 1999 (NSW)

Answer 4

“Truth in sentencing legislation” outlines maximum to be given for certain crimes.
Makes number of provisions regarding imprisonment
- Court must not impose full time prison without considering and rejecting all possible alternatives
- *-6 months (fixed term imprisonment) no parole, 6 months -> parole period after 3/4 sentence served.

Question 5

Judicial guidelines

Answer 5

judgement given about sentence of particular crime. (Ratio Decendendi), which is then taken into account by courts delivering sentences for similar offences.
- NSW attorney general, NSW court of criminal appeal can ask judge to give guideline sentence

Question 6

Mandatory sentencing

Answer 6

practice of some parliaments of legislating for a particular sentence for a particular crime of series of crimes. E.g., Northern Territory 1977 said that all property offences had to be imprisoned.
- take away judicial discretion as they only can impose legislated sentence.
- NSW amendments to truth in sentencing act allows judges to take into account mitigating and aggravating factors as they still must give min sentence e.g., 10 years on parole for sexual assault

Question 7

Purposes of punishment- Specific deterrence

Answer 7

Dissuading the offender for committing a similar crime in the future due to fear of punishment.

Question 8

Purposes of punishment- General deterrence

Answer 8

Dissuading the general public from committing a similar crime

Question 9

Purposes of punishment- Retribution

Answer 9

Pure retribution is where punishment aims to be equivalent to crime. More serious crime more serious punishment, Australia no pure retribution but life in jail (die in jail)

Question 10

Purposes of punishment- Rehabilitation

Answer 10

Aimed at changing the behaviour of the offender so they will not wish to commit other crimes due to non-criminal behaviour seeming more preferable

Question 11

Purposes of punishment- Incapacitation

Answer 11

Punishment aims to isolate offender so they will not commit another crime. Incapacitated as long as they are danger to society.

Question 12

Factors affecting a sentencing decision

Answer 12

Judge/ magistrate decides punishment within guidelines set by truth in sentencing act and other legislation.
Take into account these factors
- max penalty
- other legislative and judicial guidelines
- purposes of punishment
- aggravating factors, mitigating factors
- victim impact statement

Question 13

Factors affecting a sentencing decision- Aggravating factors

Answer 13

factors taken into account by judge/magistrate when determining sentence, put forward to persuade judge on severity or impose max penalty.
 Whether weapon used
 Whether crime planned
 Age and disability of victim
 Hate crime
 Involved gratuitous(unnecessary violence
 Prior criminal record
 Relationship of trust with victim

Question 14

Factors affecting a sentencing decision- Mitigating factors

Answer 14

Persuade judge that max penalty should not be imposed
 Offenders past good record
 Offender provoked by
 Mental illness
 Offenders good character
 Circumstances e.g provocation
 Effect of sentence of accused and family
 Sign of remorse, including guilty plea

Question 15

Role of victim in sentencing - victim impact statement

Answer 15

statement read court outlining full effect of crime on victim

Question 16

Role of victim in sentencing- Advantages

Answer 16

• useful information to court about impact of crime, Case R vs Slack 2004- harm caused by offence
• give victim role of court process- gives victim and society greater confidence in system.
• may allow for rehabilitation of offender- they get to hear impact of their actions.

Question 17

Role of victim in sentencing- Disadvantages

Answer 17

• delivery can result in cross examination and prove embarrassing and upsetting.

Question 18

Appeals

Answer 18

a legal questioning of the decision made by a court, process by which cases are reviewed as parties request formal change to an official decision.

Question 19

Appeals can be made -

Answer 19

against conviction on certain grounds, or severity of sentence.
- allows higher courts to supervise discretion of magistrates and judges in lower courts in sentencing decisions.

Question 20

Types of penalties - No conviction recorded

Answer 20

may be guilty yet dismiss the charge no conviction recorded
Pro- Inexpensive
- may be specific deterrent
Con- does not rehabilitate
- may not seem suitably retributive

Question 21

Types of penalties - Caution

Answer 21

cautioned or warned by police rather than arrested or charged
Pro -Inexpensive
- good for minor offences
Con- does not rehabilitate
- may not deter
- may not seem suitably retributive

Question 22

Types of penalties - Fine

Answer 22

offender ordered to pay some of money. Usually penalty units (2008 I unit $110)
Pro- inexpensive
- flexible
- good for minor offences
Con - may not deter
- may disadvantage poor people

Question 23

Types of penalties - Bond

Answer 23

offender released but agrees to be on a bond a good behaviour 1-5 years. May be conditions to bond e.g., supervision of parole authority.
Pro- Inexpensive
- Can rehabilitate
- Suitable less serious offences
Con - Offender has opportunity to re-offend
- May not deter (consequences of breaching conditions imposed may act as deterrent)

Question 24

Types of penalties - Suspended sentence

Answer 24

Sentenced to term in prison but given bond if break bond gets given original sentence in full.
Involves full time custody.
Pro - Inexpensive
- Can rehabilitate
Suitable less serious offences
Con - Offender has opportunity to re-offend
May not deter (consequences of breaching conditions imposed may act as deterrent)

Question 25

Types of penalties - Probation

Answer 25

Similar to bond but almost always offender is supervised by parole authority.
Pro- Inexpensive
- Can rehabilitate
- Suitable less serious offences
Con - Offender has opportunity to re-offend

Question 26

Types of penalties - Criminal infringement notice

Answer 26

Notice imposed by police imposing dine for minor crimes e.g. offensive language. Sydney morning herald June 2008 32%. overdue not best deterrent
Pro- Occurs at time of offence
Cons- May not be effective as deterrent
- May not be suitably retributive

Question 27

Types of penalties - Community service order

Answer 27

offender-> unpaid work up to 500 hours.
100 hours - 6 months
200 hours – 6-12 months
500 hours - maximum penalty of 12 months
Pro - Assists general community
- Can be retributive as offenders may correct own damage e.g., graffiti
Cons- Opportunity to re-offend
- May not rehabilitate
- May not deter

Question 28

Types of penalties - Home detention

Answer 28

Confined to home or restricted area up to 18 months. Introduced 1966 Crimes (sentencing procedures) act 1999.
Pro - Appropriate for those non-violent crimes
- Decreases prison population
- Can rehabilitate
- People with families can stay at home
Cons - May not rehabilitate

Question 29

Types of penalties- Forfeiture of assets

Answer 29

give up their property to govt if court finds property was gained through crime
Pro- May be suitably retributive
Cons- May not rehabilitate

Question 30

Types of penalties- Imprisonment

Answer 30

offender detained for at least non parole period.
Pro- Cannot re-offend as they are incapacitated
-retributive
Cons- does not rehabilitate
- May not deter
- Very costly

Question 31

Types of penalties- Intensive correction order

Answer 31

order of imprisonment for no more than two years- sentence served by intensive correction order in community, supervision of corrective services NSW.

Question 32

Divisionary programs

Answer 32

series of alternatives developed in hope to rehabilitate offender

Question 33

Divisionary programs - Magistrates early referral into treatment program

Answer 33

allows magistrate to adjourn case while offender undertakes drug rehabilitation. ( taken into account in sentencing if completed satisfactorily.

Question 34

Divisionary programs - Drug court

Answer 34

rehabilitate drug offenders-> no longer dependent on drugs

Question 35

Divisionary programs - Cannabis cautioning scheme

Answer 35

official warning to those possessing small amounts of cannabis. Caution recorded second caution compulsory drug education session.

Question 36

Divisionary programs - Traffic offenders’ program

Answer 36

person charged with driving offence referred to program by magistrate after initial court appearance. Person must complete assignment for each 8 lectures

Question 37

Divisionary programs - Sober driver program

Answer 37

established 2002 aimed at repat drink driving offenders. Courts can order compulsory attendance of the session. Teaches offenders about consequences of drink driving and how to avoid

Question 38

Alternative methods of sentencing - Restorative justice programs

Answer 38

aims to address causes of criminal behaviour and allows offenders to rectify harm they have caused two forms justice conferencing and circle sentencing.
process uses conference with offender victim and supporter of each- explain what happened how they feel about crime. And impacts (emotional, financial)

Question 39

Alternative methods of sentencing - Circle sentencing

Answer 39

for aboriginal offenders, brought to circle of people, victims’ family, community elders, defence lawyers prosecutors and magistrate. They discuss offence impact on victim and ways of rectifying harm done magistrate ensures appropriate sentence to offence and circumstances.

Question 40

Post sentencing considerations - Security classification

Answer 40

Security classification- given by NSW classification committee under Crimes (administration of sentences) regulation 2008 (NSW). Classification based of seriousness of offence and length of sentence.
High risk
Medium risk
Low risk

Question 41

Implications for security classification

Answer 41

classification determines which prison, which rehabilitation programs have access to, and privileges of prisoner. E.g high risk prisoner fewer privileges and spend sentence with other serious offenders, effect prison experience and chances of integrating back into community.

Question 42

Post sentencing considerations - Protective custody

Answer 42

prisoners may be subject to harassment and violence from other prisoners e.g race, sexual preferences, disability, prisoners in fear of fellow prisoners may be asked to be placed in protective custody ( separated from prisoners they fear)

Question 43

Post sentencing considerations - Parole

Answer 43

allows prisoners to leave prison before completing full sentence. However there are conditions e.g broken sent back to prison ( restrictions such as visiting certain places). Parole dealt with truth in sentencing legislation.

Question 44

Post sentencing considerations - Preventative detention

Answer 44

used to describe people detained without charge due to suspicion of terrorist activity. (Not charged of found guilty)

Question 45

Post sentencing considerations - continued detention

Answer 45

used to describe detention of serious offenders, who are at risk of re-offending if they are released back into the community. (Continued detention of offenders after jail term expired)

Question 46

Post sentencing considerations - Sexual offenders’ registration

Answer 46

people convicted of serious criminal offences must register to police station and provide police with certain information e.g., travel plans. Also subject to supervision upon release from prison.

Question 47

Post sentencing considerations - Deportation

Answer 47

forcible removal of person from a country and returning them to their country of origin. People who are nor permanent residents or have had permanent residency for less than 10 years can be deported if convicted of offence and sentenced for at least one year.