1. judge decides on a punishment.
‘Sentencing’ is when a
judge decides on a punishment.

2. Think of how hard it would be to be a judge and decide on a punishment for someone…
How would you decide the punishments for these three armed robbery cases:
Less Serious Armed Robbery
“Average” Armed Robbery
More Serious Armed Robbery
Offender just turned 18, with no criminal history
Offender is 22, with little criminal history
Offender is 40 with long criminal history
Weapon was a stick
Weapon was a knife
Weapon was a shotgun
Impulsive (he “just did it” without any planning)
Some planning (the night before)
Weeks of planning and organising
Threatened violence, but didn’t actually hurt anyone
Pushed someone over
Shot someone
Victim was an armed guard
Victim was a shopkeeper
Victims included elderly women
Only $10 taken
$150 taken
$5,000 taken
Decided to plead guilty (even though there wasn’t much chance the prosecution could have proved their case against him).
Decided to plead guilty because the prosecution had a very strong case.
Decided to plead not guilty, leading to a long and expensive trial.

3. STATUTORY AND JUDICIAL GUIDELINES
The judge
can’t just pick ANY punishment.
There are GUIDELINES.
These guidelines come from
two different places:
1. Parliament (Statutory)
2. Previous cases (Judicial)

4. STATUTORY AND JUDICIAL GUIDELINES
The really OLD way of choosing a sentence…
Judges used to hand down MASSIVE prison sentences that seemed tough (e.g. 25 years), but then the offender would only serve 4 or 5 years.
This caused public and media outrage.

5. STATUTORY AND JUDICIAL GUIDELINES
And THEN we had…
The NSW parliament passed the Sentencing Act 1989 (NSW) which required people sentenced with imprisonment to serve a minimum percentage (75%) of their sentence without getting parole. This was called ‘truth in sentencing’.

6. STATUTORY AND JUDICIAL GUIDELINES
And NOW we’ve got…
The Crimes (Sentencing Procedure) Act 1999 (NSW), which was amended in 2003 to give us a very different, complicated system.
WHY???
NSW Attorney-General Bob Debus
2nd Reading Speech for the
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2003 (NSW)

7. STATUTORY AND JUDICIAL GUIDELINES
And NOW we’ve got…
The Crimes (Sentencing Procedure) Act 1999 (NSW), which was amended in 2003 to give us a very different, complicated system.
MAXIMUM sentences for ALL crimes
STANDARD Non-Parole Periods for SOME crimes
GUIDELINE judgements for SOME crimes
MANDATORY life sentences for murdering police
STATUTORY guidelines
STATUTORY guidelines
JUDICIAL guidelines
STATUTORY guidelines

8. STATUTORY AND JUDICIAL GUIDELINES
MAXIMUM sentences for ALL crimes
All crimes have a maximum punishment.
Most of the crimes and their maximum sentences are in the Crimes Act 1900 (NSW)
Armed Robbery maximum
= 25 years

9. STATUTORY AND JUDICIAL GUIDELINES
But a judge isn’t just going to give the MAXIMUM sentence ALL the time!
Every case is going to be different.
Some will be more serious.
Some will be less serious.

10. FACTORS AFFECTING A SENTENCING DECISION
Aggravating circumstances
Mitigating circumstances
AGGRAVATING
FACTORS
MITIGATING
FACTORS
Looks at the actual CRIME/OFFENCE
Can make the punishment more severe
e.g. The offence involved violence, the victim was a police officer (or teacher…) who was doing their job, etc
Looks more at the OFFENDER
Can make the punishment less severe
e.g. The person is unlikely to re-offend, the person is of good character, the person has shown that he has taken responsibility for his actions, etc

11. FACTORS AFFECTING A SENTENCING DECISION
Discuss the issues involved with having aggravating and mitigating factors
Aggravating circumstances
Mitigating circumstances
DISCUSS factors that affect sentencing decisions, including the purposes of punishment and the role of the victim
The NSW Law Reform Commission Report 138 – Sentencing looked into the problems with having a big list of aggravating and mitigating factors.
They found that s.22A (where the aggravating and mitigating factors are listed) was confusing a lot of judges.
There were:
Too many factors to consider; and
Most were completely irrelevant
FACTORS AFFECTING A SENTENCING DECISION
Aggravating circumstances
Mitigating circumstances

12. FACTORS AFFECTING A SENTENCING DECISION
Discuss the issues involved with having aggravating and mitigating factors
Aggravating circumstances
Mitigating circumstances
DISCUSS factors that affect sentencing decisions, including the purposes of punishment and the role of the victim
Also, some crimes (like sexual offences under the Crimes Amendment (Serious Sexual Offences) Act 2008) have NO POSSIBLE MITIGATING FACTORS - it doesn't matter if it's your first offence, or you’re usually a good person  you're getting the STANDARD NPP AS A MINIMUM!
FACTORS AFFECTING A SENTENCING DECISION
Aggravating circumstances
Mitigating circumstances

13. STATUTORY AND JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
There are TWO SEPARATE LAWS that the judge has to follow.
The Crimes Act tells the judge the MAXIMUM punishment.
e.g. 25 years max for Armed Robbery
e.g. 7 years SNPP for Armed Robbery
The Crimes (Sentencing Procedure) Act tells the judge the ‘STANDARD Non-Parole Period’. This is what parliament says SHOULD be the “standard” minimum punishment.

14. But this isn’t for every crime! Just SOME!!!
STATUTORY AND JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
From the
C(SP) Act
From the
Crimes Act
But this isn’t for every crime! Just SOME!!!
From the
C(SP) Act
From the
Crimes Act

15. STATUTORY AND JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
But do judges HAVE TO give these ‘standard’ non-parole periods?
NO!
Judges always thought they had to START from the SNPP and then go up and down from there (based on the aggravating factors and mitigating factors).
But the High Court decided in 2011 that
the SNPP for a crime is just a ‘guidepost’ or ‘marker’
(Muldrock (2011)).
So, the SNPP for a crime just gives the judge SOME DIRECTION

16. STATUTORY AND JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
35 crimes with SNPPs
(set by statute law)

17. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
Not all judges think the same way.
They are humans, with their own ideas of what is important.
What’s the most important in choosing a partner? Sense of humour? Intelligence? Body?
Different people give different weight to different aspects.

18. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
To normal people, a judge’s REASONS for deciding to give someone 5 years in jail will look like this (x 20 pages)
But other judges see it like this:

19. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
So, for 3 Armed Robbery cases, 3 different judges will come up with 3 different decisions with 3 different personal “systems” deciding what is (and isn’t) important in working out a punishment.
Sentence: 5 years
Sentence: 3 years
Sentence: 8 years

20. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
But WE DON’T REALLY WANT THIS.
We want CONSISTENCY in our legal system (judges should be roughly thinking the same way; giving the same amount of weight to the same issues). We want the process to be PREDICTABLE.
Sentence: 5 years
Sentence: 3 years
Sentence: 8 years

21. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes

22. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
The NSW Sentencing Council looks at the way different sentencing decisions have been made by judges.
They focus on the REASONING of the judge in deciding on a specific sentence.
The decide for some cases, on ONE JUDGEMENT as being “the CORRECT way to work out the sentence in (this type of) case”

23. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
e.g. The NSW Sentencing Council has decided that the case R v Henry (1999) was an excellent example of how a judge SHOULD decide on the punishment for someone in an Armed Robbery case.
So NOW, every judge in an Armed Robbery case MUST follow what the judge did in R v Henry (or at least provide good reasons why he/she didn’t!).

24. STATUTORY AND JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
So, R v Henry is now a
guideline judgement.
“best example” judgement
“should be followed” judgement

25. STATUTORY AND JUDICIAL GUIDELINES
4. MANDATORY life sentences for murdering police
The NSW government passed the Crimes Amendment (Murder of Police Officers) Act 2011.
This means that if a person is found guilty (by a jury) of murdering a police officer, the judge has NO DISCRETION in sentencing the defendant – the judge must hand down a mandatory LIFE SENTENCE.

26. STATUTORY AND JUDICIAL GUIDELINES
4. MANDATORY life sentences for murdering police
Mandatory sentencing is popular, but it creates serious justice issues:
‘Is a policeman’s life worth more?’, SMH (2011)
Parliaments are not legally allowed to take over the role of the courts (e.g. by setting an exact sentence, rather than a range). Get-tough laws erode functions of justice, SMH, 2011
And in Queensland, they brought in mandatory life sentences for repeated child sex offenders, which they deserve, but might give the paedophile an incentive to kill their victim (to prevent being caught and sent to prison for life).
Queensland child-sex law 'may lead to murder’, The Australian (2012)

27. So, our sentencing system is now: STATUTORY AND JUDICIAL GUIDELINES
ALL crimes have a maximum punishment (set by statute law)
There are 35 crimes with SNPPs (set by statute law)
There are 22 possible aggravating factors
and 13 possible mitigating factors
that have to be looked at
There are 7 cases (from common law)
that are used as ‘guideline’ judgements
There is 1 crime with a mandatory sentence (set by statute law)
(life imprisonment for murdering a police officer)

28. STATUTORY AND JUDICIAL GUIDELINES
“You’re almost inviting judges to run the court like a checklist, ‘Oh, he’s got one, two, three, four aggravating factors there – he’s only got three mitigating ones’”
Justice Conlon
‘Putting the Truth into Sentencing’, SMH, 2010
SEEM
STUPID
TO YOU?
Judges agree!
“The gradual increase in ‘law and order’ measures have forced judges to impose higher sentences for some crimes”
‘Putting the Truth into Sentencing’, SMH, 2010
The legislation setting standard non-parole periods should be overturned
Justice Reg Blanch
‘Putting the Truth into Sentencing’, SMH, 2010

29. STATUTORY AND JUDICIAL GUIDELINES
The IMPACT of the SNPP sentencing scheme
on sentencing patterns in NSW
Judicial Commission of NSW, 2010
What effect has this new sentencing system (since 2003) had on sentencing in NSW?
Did it REALLY make sentencing more consistent?
Or did it just INCREASE penalties?
IT DID BOTH!

30. STATUTORY AND JUDICIAL GUIDELINES STATUTORY AND JUDICIAL GUIDELINES
4. SENTENCING AND PUNISHMENT
EVALUATE the effectiveness of sentencing and punishment as a means of achieving justice
Is the system of having SNPPs and guideline judgements for certain crimes (an increasing number of crimes – increasing each time a terrible individual crime happens and is on the news) the best way to achieve justice?
You should have a very good answer for this, because it is a good tip for the exam.
STATUTORY AND JUDICIAL GUIDELINES ?
NSW Law Reform Commission Report 138 – Sentencing hadn’t come out by the time this was released, so check the Facebook page to see what the final conclusions were about the effectiveness of the system of sentencing…