Sentencing (2)

Criminal Laws, S2 2014, Class 22

Revision
1.) What are the purposes of punishment?
2.) Which purposes of sentencing should judges take into
account?
3.) Should victim impact statements be able to influence
the determination of a sentence in homicide cases?
4.) How should judges use the standard non-parole period
when determining a sentence?

Intuitive Synthesis vs Two-Tier

[U]ltimately every sentence imposed represents the sentencing judges instinctive

synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it
is profitless to attempt to allot the various considerations their proper part in the
assessment of the particular punishments presently under examination. We are aware that
such a conclusion rests upon what is essentially a subjective judgment largely intuitively
reached by an appellate judge as to what punishment is appropriate.

Williscroft [1975] VR 292

The task of the sentencing judge or magistrate is not to add or subtract from an
objectively determined sentence but to balance the various factors and make a value
judgment as to what is the appropriate sentence in all the circumstances of the case.

McHugh J in Whyte
Two-Tier Approach = sentence that is proportionate to offence +/- individual circumstances
(sometimes referred to as objective +/- subjective factors)
Scathingly rejected by the Victorian Court of Criminal Appeal in Young
But problems with the synthesis approach?
Is the synthesis approach consistent with the practice of giving guideline judgments?

Benefits of Two-Tier Approach?

[W]e suggest that two-tiered or sequential reasoning has the advantage of

breaking down an often complex set of facts and principle into manageable
components. This does not turn the decision-making process into a strictly
mathematical exercise, but simply assists in organising thoughts and
explaining how decisions are reached. In this way appeal courts are better able
to assess whether the sentencer has given too little or too much weight to a
particular factor. It enables decisions to be analysed, contrasted and compared
in terms of their objective and subjective components

[W]e see no harm in retaining a two-tiered sentencing methodology

wherein the sentencing judge or magistrate determines the upper, and
sometimes lower, limits of an appropriate sentence based on the notion of
offence seriousness or objectivity and then proceeds to fine-tune the
sentence by reference to other considerations We prefer this to simply
expressing the process in terms of instinctive or intuitive synthesis. The first
approach is more consistent with notions of transparency, the giving of reasons
and accountability; the second is more mysterious, idiosyncratic and less open
to analysis.

Traynor and Potas, Sentencing Methodology (2002) Sentencing Trends

and Issues

Sentencing Principles
Proportionality
Parsimony
Totality
Consistency
Individualised justice

Role of Appellate Courts

Appeals on basis of an error of law or fact by sentencing judge, or where
sentence manifestly inadequate or manifestly excessive
High Court is generally reluctant to interfere in sentencing decisions
(hands off approach)
Responsibility therefore largely lies with the State Courts of Criminal
Appeal
State Appeal Courts should aim for consistency, but this is not ensured
Appellate courts play important role as they consider these issues
regularly according to a wide variety of available decisions, and because
multi-member benches operate according to a dialogue process which
improves the decision-making process (Way)

Sentencing Options: Broad

Classification
Unsupervised release
Monetary penalties
Supervised release
Custodial orders

Sentencing Options
Dismissal of charges and conditional discharge
Good behaviour bond
Non-association and place restriction orders
Deferred sentence
Suspended sentence
Fines
Probation
Community service orders
Intensive correction orders
Home detention
Restitution and compensation
Imprisonment
Life imprisonment

Dismissal of Charges
Crimes (Sentencing Procedure) Act 1999
10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an

offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into
a good
behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into
an
agreement to participate in an intervention program and to comply with any
intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal

punishment) on

the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied
that it would reduce the likelihood of the person committing further offences by
promoting the treatment or rehabilitation of the person.

Fines
17 Penalty units

Unless the contrary intention appears, a reference in any Act or

statutory rule to a number of penalty units (whether fractional or whole) is
taken to be a reference to an amount of money equal to the amount
obtained by multiplying $110 by that number of penalty units.
14 Fines as an additional penalty to good behaviour bond

(1) A court may impose a fine on an offender in respect of whom it has

made an order that provides for the offender to enter into a good behaviour
bond if the offence to which the bond relates is an offence for which the
penalty that may be imposed (otherwise than under this section) includes a
fine.
15 Fines as an additional or alternative penalty to imprisonment for
offences dealt with on indictment

(2) A court may impose a fine not exceeding 1,000 penalty units on an
offender whom it convicts on indictment of an offence to which this section
applies.

Addressing Substantive Inequality?

Fines Act 1996
6 Consideration of accuseds means to pay
In the exercise by a court of a discretion to fix the amount of
any fine, the court is required to consider:

(a) such information regarding the means of the

accused as is reasonably and practicably available to the
court for consideration, and

(b) such other matters as, in the opinion of the court,

are relevant to the fixing of that amount.

Defaulting on Fines
66 Suspension or cancellation of driver licence

(1) Roads and Maritime Services must, without further notice, suspend any driver licence
of a fine defaulter against whom it is required to take enforcement action for the balance of the
period of the licence.
67 Cancellation of vehicle registration

(1) Roads and Maritime Services may, without further notice, cancel the registration of all
or any motor vehicles of which a fine defaulter is the registered operator (or one of the
registered operators)
79 Making of community service order against fine defaulter

(1) The Commissioner may make a community service order requiring a fine defaulter to
perform community service work in order to work off the amount of the fine that remains unpaid.
87 Imprisonment following breach of community service order

(1) After a community service order is revoked under section 86 (1), the Commissioner
may by warrant commit the fine defaulter to a correctional centre to be kept there according to
the terms of the warrant for the period of imprisonment calculated in accordance with this
Division, unless the fine defaulter sooner pays the relevant outstanding fine.

Probation
Condition attached to a bond no formal statutory basis
Requires offender to be subject to supervision and control of Probation Service
9 Good behaviour bonds

(1) Instead of imposing a sentence of imprisonment on an offender, a court

may make an order directing the offender to enter into a good behaviour bond for a
specified term.(2) The term of a good behaviour bond must not exceed 5 years.
11 Deferral of sentencing for rehabilitation, participation in an intervention
program or other purposes

(1) A court that finds a person guilty of an offence (whether or not it proceeds
to conviction) may make an order adjourning proceedings against the offender to a
specified date:

(b2) for the purpose of allowing the offender to participate in an

intervention program

Community Service Orders

8 Community service orders

(1) Instead of imposing a sentence of imprisonment on an

offender, a court may make a community service order directing
the offender to perform community service work for a specified
number of hours.

(2) The number of hours specified in a community service

order in relation to an offence must not exceed 500, or the
number of hours prescribed by the regulations in respect of the
class of offences to which the offence belongs, whichever is the
lesser.

Intensive Correction Orders

7 Intensive correction orders

(1) A court that has sentenced an offender to imprisonment

for not more than 2 years may make an intensive correction
order directing that the sentence be served by way of intensive
correction in the community.

Stringent conditions which deprive an offender of his or

her liberty in a real sense: RvPogson
Have a significant punitive effect and should therefore
reflect in all likelihood, a range of purposes identified
in s 3A of the [Crimes (Sentencing Procedure) Act]:
RvTannous

ICO Conditions
Crimes (Administration of Sentences) Regulation 2008, cl 175
the offender is to be of good behaviour and not commit any offence
the offender is to reside only at premises approved by a supervisor
the offender is to submit to breath testing, urinalysis or other
medically approved test procedures for detecting alcohol or drug
use, as directed by a supervisor
the offender is to undertake a minimum of 32hours of community
service work per month, as directed by a supervisor from time to
time
the offender is to engage in activities to address the factors
associated with his or her offending as identified in the offenders
assessment report
the offender is to submit to a medical examination by a specified
medical practitioner, in relation to the offenders capacity to
undertake community service work

Home Detention
6 Home detention

(1) A court that has sentenced an offender to imprisonment for not more than
18 months may make a home detention order directing that the sentence be served
by way of home detention.
78 Suitability of offender for home detention

(1) A home detention order may not be made with respect to an offenders
sentence of imprisonment unless the court is satisfied:

(a) that the offender is a suitable person to serve the sentence by way
of home detention, and

(b) that it is appropriate in all of the circumstances that the sentence

be served by way
of home detention, and

(c) that the persons with whom it is likely the offender would reside, or
continue or resume a relationship, during the period of the offenders home
detention have
consented in writing to the making of the order, and

(d) that the offender has signed an undertaking to comply with the
offenders
obligations under the home detention order.

Restitution and Compensation

Victims Rights and Support Act 2013
4 Object of Part

The object of this Part is to recognise and promote the rights of victims of crime.
23 Eligibility for support

(1) A primary victim of an act of violence is eligible for the support under the Scheme described in
section 26.

(2) A parent, step-parent or guardian who is caring for a child who is a primary victim of an act of
violence is eligible for the support under the Scheme described in section 27.

(3) A secondary victim of an act of violence is eligible for the support under the Scheme described in
section 28.

(4) A family victim of an act of violence is eligible for the support under the Scheme described in
section 29.
19 "act of violence" means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

Support for Primary Victims

26 Composition of support-primary victims

(1) The support under the Scheme for which a primary victim of
an act of violence is eligible comprises the following:

(a) approved counselling services with respect to that act

of violence,

(b) financial assistance for immediate needs up to a

maximum amount in total
prescribed by the regulations to cover
expenses for treatment or other measures that need to be taken
urgently, as a direct result of that act of violence, to secure the victims
safety, health or well being,

(c) financial assistance of up to a maximum amount in total

prescribed by the
regulations for the economic loss suffered by
the primary victim as a direct result of
that act of violence of a
kind described in the regulations,

(d) if a recognition payment is payable under this Part in

respect of the act of
violence - that recognition payment.

Support for Family Victims

29 Composition of support-family victims

(1) The support under the Scheme for which a family victim of an
act of violence is eligible comprises the following:

(a) approved counselling services,

(b) financial assistance for immediate needs up to a

maximum amount in total
prescribed by the regulations to cover
expenses of measures that need to be taken
urgently, as a direct
result of that act of violence, to secure the victims safety, health
or well being (less any amount payable under section 47),

(c) a payment of up to a maximum amount in total

prescribed by the regulations for
funeral expenses actually
incurred, or reasonably likely to be incurred, by the family
victim
for the funeral of the primary victim who died as a result of that act of
violence (less any amount payable under section 47),

(d) financial assistance of up to a maximum amount in total

prescribed by the
regulations for economic loss suffered by the
family victim as a direct result of that
act of violence of a kind
described in the regulations.

Imprisonment
5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is

satisfied, having considered all possible alternatives, that no penalty other
than imprisonment is appropriate.

(2) A court that sentences an offender to imprisonment for 6 months

or less must indicate to the offender, and make a record of, its reasons for
doing so
44 Court to set non-parole period

(1) Unless imposing an aggregate sentence of imprisonment, when

sentencing an offender to imprisonment for an offence, the court is first
required to set a non-parole period for the sentence (that is, the minimum
period for which the offender must be kept in detention in relation to the
offence).

(2) The balance of the term of the sentence must not exceed onethird of the non-parole period for the sentence, unless the court decides
that there are special circumstances for it being more (in which case the
court must make a record of its reasons for that decision).

Prisoner Categories

Parole
Crimes (Administration of Sentences) Act 1999
135 General duty of Parole Authority

(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of
probabilities, that the release of the offender is appropriate in the public interest.

(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole
Authority must have regard to the following matters:

(a) the need to protect the safety of the community,

(b) the need to maintain public confidence in the administration of justice,

(c) the nature and circumstances of the offence to which the offenders sentence relates,

(d) any relevant comments made by the sentencing court,

(e) the offenders criminal history,

(f) the likelihood of the offender being able to adapt to normal lawful community life,

(g) the likely effect on any victim of the offender, and on any such victims family, of the
offender being released on parole,

(h) any report in relation to the granting of parole to the offender that has been prepared by or
on behalf of the Probation and Parole Service, as referred to in section 135A,

(i) any other report in relation to the granting of parole to the offender that has been
prepared by or on behalf of the Review Council, the Commissioner or any other
authority of the State

(k) such other matters as the Parole Authority considers relevant.

Life Imprisonment
Crimes Act 1900
19A Punishment for murder

(1) A person who commits the crime of murder is liable to

imprisonment for life.

(2) A person sentenced to imprisonment for life for the

crime of murder is to serve that sentence for the term of the
persons natural life.

Life Imprisonment
61 Mandatory life sentences for certain offences

(1) A court is to impose a sentence of imprisonment for life on a person who is

convicted of murder if the court is satisfied that the level of culpability in the
commission of the offence is so extreme that the community interest in
retribution, punishment, community protection and deterrence can only be
met through the imposition of that sentence.

(2) A court is to impose a sentence of imprisonment for life on a person who is

convicted of a serious heroin or cocaine trafficking offence if the court is
satisfied that the level of culpability in the commission of the offence is so extreme
that the community interest in retribution, punishment, community protection and
deterrence can only be met through the imposition of that sentence and the court is
also satisfied that:

(a) the offence involved:

(i) a high degree of planning and organisation, and

(ii) the use of other people acting at the direction of the person convicted of
the offence in the commission of the offence, and

(b) the person was solely or principally responsible for planning, organising
and financing the offence, and

(c) the heroin or cocaine was of a high degree of purity, and

(d) the person committed the offence solely for financial reward.

The Limits of Punishment and Justice

Reinvestment

Over-Representation of Indigenous
Population

Sentencing Indigenous Offenders

There is no warrant, in sentencing an Aboriginal offender in

New South Wales, to apply a method of analysis different from that
which applies in sentencing a non-Aboriginal offender. Nor is there
a warrant to take into account the high rate of incarceration of
Aboriginal people when sentencing an Aboriginal offender.

Bugmy [2013] HCA 37

How did this differ from the principles set out by Wood J in
Fernando?
in what ways could evidence of systemic disadvantage in
Indigenous communities still be taken into account in determining a
sentence?

R v Brett Sharpley [2014] NSWDC 166

47Recognising the history of profound deprivation and giving it weight as a mitigating
factor is not intended to suggest that the Court is acting upon a kind of racial
stereotyping which diminishes the dignity of individual offenders by consigning them by
reason of their race and place of residence to a category of persons who are less capable
than others of decent behaviour.
48Instead it is relevant to the consideration of the relationship of these background
matters to the assessment of the particular offender's moral culpability and proper
consideration of the principles of proportionality and equal justice.
53I am satisfied that the history of socioeconomic deprivation in the community from
which the offender comes and the impact that that has had upon him reduces his moral
culpability. Notwithstanding the fact that these are not offences of violence, the
offender's deprived background and his exposure over the years to violence and alcohol
abuse is relevant to his capacity to mature and his capacity to appreciate the
wrongfulness and consequences of his behaviour.
54The interplay of considerations relevant to sentencing may be complex and can be
contradictory. In a given case, facts which point in one direction in relation to one
consideration to be taken into account, may point in entirely different direction in relation
to some other consideration. The social deprivation in the offender's youth, background
and community is integrally related to his history of offending and considerations of
questions of deterrence, rehabilitation and the protection of the community.

David Garland, Punishment and Modern

Society

[T[he simple fact is that no method of punishment has ever

achieved high rates of reform or of crime control and no method ever
will. All punishments regularly fail in this respect because it is only the
mainstream processes of socialisation which are able to promote
proper conduct on a consistent and regular basis. Punishment, so far as
control is concerned, is merely a coercive back-up to these more reliable
social mechanisms, a back-up which is often unable to do anything more
than manage those who slip through these networks of normal control
and integration. Punishment is fated never to succeed to any great
degree because the conditions which do most to induce conformity or to
promote crime and deviance lie outside the jurisdictions of penal
institutions.