1. Chapter 4 Sentencing and punishment

2. In this chapter, you will look at the purposes and process of sentencing and the different factors affecting a sentencing decision. You will also study the different types of sentences, alternative sentencing methods and post- sentencing considerations.

3. if an accused is tried in court and found not guilty, the person is acquitted and set free if the accused pleads guilty or the court reaches a guilty verdict after trial, the court will determine and impose an appropriate sentence on the offender sentencing occurs in a sentencing hearing Sentencing and punishment

4. there are numerous laws, rules, guidelines and cases that govern how sentences are determined the Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in NSW Statutory and judicial guidelines

5. the maximum penalty that an offender can receive for an offence is decided by parliament and listed in legislation the magistrate or judge determines the most appropriate sentence to impose in the circumstances – this is known as judicial discretion in some instances, controversial changes have been made by parliaments to remove judicial discretion for certain offences – this is known as mandatory sentencing Statutory and judicial guidelines

6. section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) lays down the allowable purposes of sentencing in NSW courts the purposes of sentencing can be divided into four main categories: –deterrence, including general and specific deterrence –retribution –rehabilitation –incapacitation The purposes of punishment

7. A magistrate or judge must take into account many different factors in determining a sentence, including: aggravating factors – circumstances that make the offence more serious and can lead to an increased sentence mitigating factors – circumstances that make the offence less severe and can lead to a reduced sentence other objective or subjective factors or a victim impact statement Factors affecting a sentencing decision

8. Some examples aggravating factors: violence, cruelty or weapons any injury, harm or damage motivated by any hatred or prejudice if the victim was vulnerable (e.g. old, young or disabled) or targeted for their occupation (e.g. police officer or teacher) if the offender is a re-offender or has any prior convictions Aggravating factors

9. Some examples mitigating factors: good character references or no prior convictions the offender is youthful or inexperienced the offender pleaded guilty or assisted police the offender has shown honest remorse good prospects of rehabilitation Mitigating factors

10. victims can be involved in the criminal trial process in a number of ways, for example: –reporting a crime and providing evidence –testifying at trial as a witness –submitting a victim impact statement in NSW, victims of crime are recognised and guaranteed certain rights under the Victims Rights Act 1996 (NSW), which contains a Charter of Victims’ Rights The role of the victim in sentencing

11. a victim impact statement is a voluntary statement written by the victim about the impact that the crime has had on them it allows the victim to inform the court how the crime has affected them – it is presented after the verdict but before sentence is passed they are only permitted for serious offences involving violence (actual or threatened) or the death of or any physical harm to a person Victim impact statements

12. a person convicted of an offence and sentenced has a right to appeal their case the Crown can also appeal the outcome there are two types of appeals in criminal cases: –appeal against conviction –sentence appeal Appeals

13. a person convicted or sentenced in a Local Court will have a right of appeal to the District Court, or to the Supreme Court on a point of law a person sentenced in the District or Supreme Court can seek permission to appeal to the Court of Criminal Appeal Appeals

14. The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties a court can impose. Some of the lesser penalties that do not involve condition or restriction on the offender’s actions include: caution criminal infringement notice conviction or no conviction recorded fine forfeiture of assets Types of penalties

15. Penalties that involve the court imposing conditions or restrictions on the offender’s actions or movement include: bond probation suspended sentence community service order Types of penalties

16. The highest penalties involve a sentence of detention or imprisonment of the offender. These include: imprisonment home detention periodic detention Types of penalties

17. In special circumstances, a court can also approve a diversionary program as an alternative to traditional processes. for example, it may involve a program of rehabilitation for drug and alcohol abuse imposed by the Drug Court participants in diversionary programs have been found to be less likely to commit an offence than those given traditional sanctions Types of penalties

18. In specific circumstances, the law allows for alternative methods of sentencing to be used. These include: circle sentencing – sentencing for some adult Aboriginal offenders conducted in a circle of local community members and a magistrate restorative justice – a form of sentencing involving a voluntary conference between the offender and the victim of the crime Alternative methods of sentencing

19. A number of issues need to be considered after a sentence is imposed. Common considerations include: security classification – determining what prison and level of security is required protective custody – for offenders who are particularly vulnerable to attack by other prisoners parole – conditional release of a prisoner after completion of the minimum term of imprisonment Post-sentencing considerations

20. Other considerations include: preventative detention – holding a person in custody in case of some future harm that they may commit, but without having committed an offence continued detention – on-going detention of a person after they have already served their full sentence sexual offenders registration deportation – offenders who are not Australian citizens may be subject to deportation if they receive a custodial sentence of 12 months or more Post-sentencing considerations