5. Sentencing Principles Flashcards
What are the five purposes of sentencing (s57 Sentencing Code)?
- Prevention of crime
- Reduction of crime
- Rehabilitation
- Protection of the public
- Reparations
According to the Sentencing Code, what should be the court’s approach to sentencing?
- Determine offence seriousness by category (harm and culpability)
- Consider aggravating factors (those which increase seriousness) - statutory and non-statutory
- Consider mitigating factors (those which reduce seriousness) - those relating to the offence and the offender
———provisional decision reached——— - Consider any assistance given to the prosecution.
- Consider the appropriate reduction for any guilty plea (usually one-third).
- Consider totality.
- Appropriate ancillary orders must be considered e.g., compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts Charge.
reductions for guilty plea
at first opportunity - one-third
at PTPH - one-quarter
on day of trial - one-tenth
what is a Newton hearing?
when D has pleaded guilty to an offence, but on a different version of facts to the prosecution.
If the court concludes that there is a
material difference between the two versions of facts, there will be a Newton hearing.
What are three aggravating factors which must be taken into account on sentencing?
- Previous convictions, having regard to their nature and time passed
- Offence committed on bail
- Motivated by protected characteristic of victim
What are nine aggravating factors which may be taken into account on sentencing?
- Premeditation
- Committed in a group
- Vulnerable victim
- Drunk or on drugs
- Abuse of position of trust
- Weapon
- Gratuitous (uncalled for) violence
- Victim providing public service
- High value or sentimental nature of property
What are seven mitigating factors which may be taken into account on sentencing?
- Impulse
- Provocation
- Disability/mental illness
- Very young/old
- Minor role played
- Motivated by fear
- Reparation to victim
statutory threshold for custodial sentence
the court must not pass a custodial sentence unless:
(a) the offence, or
(b) the combination of the offence and one or more associated offences,
was so serious that neither a fine alone nor a community sentence can be justified
statutory threshold for community order
the court must not pass a custodial sentence unless:
(a) the offence, or
(b) the combination of the offence and one or more associated offences,
was serious enough to warrant the making of such an order
what is a suspended sentence?
D serves a period of probation in the community. if the probation requirements are breached, D will need to serve some or all of the custodial sentence
if the probation requirements are breached, does the court need to activate the custodial sentence
yes, the court must activate it unless it would unjust in the circumstances
What is the totality principle the court will consider when sentencing?
Overall sentence must be proportionate to the overall seriousness of the behaviour
When will sentences for multiple offences generally be served concurrently?
Offences are connected and arise out of the same matter, and the defendant is found guilty of more than one
When will sentences for multiple offences generally be served consecutively?
Offences did not arise out of the same matter
What reduction in sentence will the defendant receive if they plead guilty at the first available opportunity?
One third off
