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Criminal Law and Procedure LWB 232 Week 13 - Sentencing dispositions.

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Presentation on theme: "Criminal Law and Procedure LWB 232 Week 13 - Sentencing dispositions."— Presentation transcript:

1 Criminal Law and Procedure LWB 232 Week 13 - Sentencing dispositions

2 Sentencing dispositions: Non- custodial orders Unconditional discharges - Pt 3 Div 1 –s 19(1)(a) –Conviction must not be recorded: s 16 –See s 18 and matters to which court must have regard Recognisance on condition that offender be of good behaviour - Pt 3 Div 1 –s 19(1)(b) (+ matters above apply) –See also recognisances for property offences: Div 2 Cf recognisances under s 32 - court has discretion whether to record conviction - see R v Fullalove

3 Fines Part 4 4 Can be in addition to, or instead of other sentence 4 Conviction is discretionary 4 Can pay by instalments: s 50, or time to pay: s 51 4 Imprisonment in default of payment: s 182A Penalties and Sentences Act 1992 (Qld) (note change from Justices Act) 4 Penalty units - s 5(1) PSA $75 - subject to change 4 Fine option orders - community service - See Pt 4 Div 2

4 Note new fine enforcement 4 State Penalties Enforcement Act 1999 due to come into effect in late 2000 4 Applies to give alternative enforcement methods for payment of fines - trying to keep fine defaulters from going to prison.

5 Probation 4 ss 90 - 99 PSA 4 Conviction discretionary 4 Released under supervision of Corrective Services Commission officer 4 Must be not less than 6 mths, not more than 3 yrs 4 Can also include up to 6 mths imprisonment 4 Offender must report and receive visits, also special conditions eg psychiatric help, restitution and compensation

6 Community service 4 ss 100 - 108 4 Conviction discretionary 4 Performs unpaid community service under supervision of Commission officer at times specified by officer 4 Total hours not less than 40, not more than 240 4 Must be performed within one year of order 4 Can order probation plus community service 4 Can contain special conditions including restitution and compensation

7 Intensive correction orders - Pt 6 4 Must order conviction 4 May make order if offender sentenced to jail for 1 year or less 4 Serves sentence by way of intensive correction in community 4 Receives visits twice a week from Commission officer 4 Must reside at community residential facilities if directed, plus other conditions including restitution and compensation

8 Breach of community based orders 4 Part 7 4 Order can be revoked: s 120 4 Offender may then be re-sentenced: s 121 - court then takes into account extent of compliance 4 Part 7 Div 2 - Offence to contravene community based order - see s 123(1)

9 Disqualification of driver’s licence 4 See s 187 PSA 4 Offence must be in connection with, or arising out of, the driving of a mv by the offender: s 187(1)(a) 4 Satisfied in the interests of justice that offender be disqualified 4 See Nhu Ly - disqualification set aside

10 Orders of suspended imprisonment 4 Part 8 4 Court must record a conviction 4 Section 144: –applies if court sentences to 5 yrs jail or less –may suspend all or part –court must state operational period - not less than term of imprisonment imposed; not more than 5 yrs 4 Breached if commits offence punishable by imprisonment during operational period

11 Custodial sentences - Imprisonment 4 Part 9 4 Recall s 9(2)(a) - last resort; and s 10 - Judge must give reasons 4 Must record a conviction - s 152 4 May be sentenced to lesser period than specified in offence 4 Served concurrently unless ordered 4 s 158: if offender in custody from arrest, court may order sentence has effect from then 4 s 161: time held in presentence custody to be deducted

12 Concurrent/Cumulative sentences 4 Concurrent unless otherwise ordered: s 155 PSA 4 Cumulative: s 156 4 Clements: –apply totality principle - overall impact –usually concurrent where related offences over short time span –cumulative only when clear and compelling reason for additional penalty(also s 156A)

13 Indefinite detention Part 10 4 Cf fixed term imprisonment 4 s 163: applies where convicted of “violent offence”, see def s 162 4 Court must state nominal sentence: s 163(2) 4 Offender must be “serious danger to community”: s 163(3) - See R v Wilson (per Pincus JA only) 4 Court must review sentence after 50% of nominal sentence served, or 13 yrs if life was nominal sentence, then twice yearly

14 Serious Violent Offences (SVO) 4 New Part 9A - Introduced July 1997 4 3 ways of declaring offender convicted of serious violent offence: –(1) Convicted of offence in Schedule AND sentenced to 10 years jail or more (automatic) (s 161A(a)) –(2) Convicted of offence in Schedule AND 5-10 years jail (discretion) (s 161B(3)) –(3) convicted of offence involving “serious violence” or “serious harm”and sentenced to imprisonment (discretion) (s 161B(4))

15 Discretion in s 161B(3) 4 Court should exercise discretion by using general principles in s 9(2) (not s 9(4)): R v Collins (18/9/98). 4 NB: This approach was recently approved in R v Robinson, ex parte Attorney-General (28/5/99)

16 SVO - remissions and parole 4 No remissions: s 161D (normally 1/3 sentence) 4 s 166(1)(c) Corrective Services Act: cannot apply for parole until served the lesser of 80% of sentence or 15 years. Cannot be reduced: s 157(7) Penalties and Sentences Act 1992 (Qld)

17 Parole 4 Court can recommend early release on parole - s 157(2) - Qld Community Corrections Board not obliged to follow 4 Eligibility to apply: s 166 (1) –life sentence 15 years (20 years for multiple murder) –Other: after served 50% of sentence –SVO: 80% 4 Released under supervision of correctional officer 4 If breach may suspend parole 4 Cf remissions: may be entitled one third of sentence for good behaviour (not SVO: s 161D) 4 NB: new Corrective Services Bill 2000

18 Criminal compensation 4 Part 3 Div 4 PSA –Conviction optional –Compensation and restitution can be ordered even if no additional penalty –Offender can be ordered to make restitution of property, or pay compensation for loss to property or personal injury. 4 See also Criminal Offence Victims Act 1995 - criminal compensation for victims of crime (personal injury/death)

19 Other matters 4 Juveniles 4 Confiscation of proceeds of crime 4 Drug Rehabilitation (Court Diversion) Act 2000 See notes in Study Guide on these issues.

20 How to approach a sentencing question 4 (1) If an appeal, discuss s 668D/668E or 669A and establish grounds for appeal 4 (2) Go through question issue by issue, discussing applicable PSA provision and any relevant cases, reach conclusion on each point. Start with the issue not the law. 4 (3) Do NOT discuss all sentencing principles in s 9(2) and/or s 9(4), whether or not applicable. See point (3) above.

21 How to approach a question (cont) 4 (4) Students are not required to have detailed knowledge of how long a jail term should be etc. - emphasis is on principles. 4 (5) Do not discuss other issues such as criminal compensation, parole etc unless asked to do so

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