Crime - Sentencing and punishment

Question 1

whats the purpose of sentencing

Answer 1

• to ensure the offender is adequately punished for the offence
• to prevent crime by deterring the offender and other persons from committing similar offences
• to protect the community from the offender
• to make the offender responsible for their actions
• to denounce the conduct of the offender
• to recognise the harm done to the victim of the crime and the community

Question 2

what legislation provides the sentencing options available and the imposition of sentences by courts

Answer 2

The Crimes (Sentencing Procedure) Act 1999

Question 2

what is the Crimes (sentencing procedure) Amendment (sentencing options) Act 2017

Answer 2

An amendment to the Crimes (Sentencing procedure) Act 1999 that strengthened some sentencing options and abolished a number of others
- also aimed to provide courts with better information about offenders at the time of sentencing through the provision of a criminal history document

Question 2

what are statutory guidelines

Answer 2

an act of parliament which clarifies how sentencing is to be undertaken
- a number of acts inform the exercise of judicial discretion and create statutory guidlines
- statutory guidlines require:

1) all crimes to have a max. sentence (most are stipulated by the 1900 Crimes Act (NSW) - this act is the primary source of sentencing law in NSW
2) mandatory life sentencing and mandatory sentencing for some crimes

Question 2

what are judicial guidelines

Answer 2

guidelines issued by the NSW court of criminal appeal - aren’t binding but aim to structure discretion
- tries to reduce inconsistencies in the judgements of trial judges who are given considerable discretion in deciding sentences
- ensures that cases are treated alike as too great inconsistency in sentencing between the decisions of different judges is an injustice - protects the rights of the offender

Question 2

why are statutory and judicial guidelines important

Answer 2

there is tension between achieving consistency in sentencing and individual justice and the statutory force of a guideline judgement and limiting the discretion of judges

Question 3

what is mandatory sentencing

Answer 3

refers to the practise of some parliaments of legislating a minimum punishment period of imprisonment for an offence - instead of a judge deciding on a punishment that fits the crime, they must sentence the offender to at least the minimum mandatory sentence dictated in the legislation

Question 4

what are some objections of mandatory sentencing

Answer 4

• interferes with the separation of powers -> breaching the rule of law
• restricts the use of judicial discretion -> doesn’t account for the circumstances of the offender - no application of the consideration of mitigating factors

Question 5

what new criminal offence was added to the 2014 Amendment of the Crimes Act 1900 (NSW)

Answer 5

assault causing death

Question 6

What is the maximum and minimum sentence for a person who is found guilty of assault causing death

Answer 6

a person found guilty of assault causing death is subject to max. 20 years imprisonment
- s.25(b) of the crimes act states that if a person is found guilty of Assault causing death under s.25(a) and there are also over the age of 18 and intoxicated, they will be subject to a max sentence of 25 years and a minimum mandatory sentence of 8 years

Question 7

what is the aim of statutory guidelines

Question 8

what is the aim of judicial guidelines

Answer 8

• to try reduce inconsistencies in the judgements of trial judges who are given considerable discretion in deciding decisions
• ensures that cases are treated alike as too great an inconsistency in sentencing between the decisions of different judges is an injustice - protects the rights of the offender

Question 9

what is the purpose of punishment

Answer 9

deterrence (specific and general), retribution, rehabilitation, incapacitation

Question 10

how does punishment differ from sentencing

Answer 10

the sentence that a court imposes upon an offender is informed by different punishment objectives and the type of punishment to be imposed - the crimes (sentencing procedure) act 1999 (nsw) lays down the allowable purposes of sentencing

Question 11

what is deterrence

Answer 11

discouraging people from doing something

Question 12

what is general deterrence

Answer 12

punishment attempting to make an example of an offender in order to send a message to the rest of the community

Question 12

what is specific deterrence

Answer 12

punishment against any individual offender aiming to deter them from committing crime in the future

Question 13

what is retribution

Answer 13

punishment considered to be morally right or deserved because of the nature of the crime committed - it is believed that it is unfair for a person to gain from their wrongful conduct

• Related to the concept of revenge or “getting even” but differs in that it is society seeking retribution of behalf of victims in an impartial manner through the courts
• aims to ensure that the punishment is proportionate to the crime but not violently or physical harmful to the offender

Question 14

what is rehabilitation

Answer 14

• as a punishment is aimed at reducing recidivism and promoting reform - therefore, the type punishment handed out should help reduce or eliminate criminal behaviour by the convicted person eg. courts may consider a drug offender undertaking treatment outside of the CJS to deal with the addictive behavior that resulted in their crime
  This may contribute to a lesser sentence → examples of punishment informed by a reform objective are:
• Community corrections orders (CCO)
• Conditional release orders (CRO)

Question 15

what is recidivism

Answer 15

the tendency of a convicted criminal to reoffend

Question 16

what is a community corrections order (CCO)

Answer 16

supervised work in the community

Question 17

what is a conditional release offer (CRO)

Answer 17

imposes conditions on the offender eg. refraining from gambling, attending a drug and rehabilitation program

Question 18

What is incapacitation

Answer 18

involves making the offender incapable of committing further offences
- relates to the third purpose under the crimes (sentencing procedure) act 1999 (NSW) ‘to protect the community from the offender’

Question 19

what types of penalties can achieve incapacitation

Answer 19

home detention, community work, license cancellation, imprisonment

Question 20

what are the factors affecting a sentencing decision

Answer 20

aggravating and mitigating factors

Question 21

what are aggravating factors and examples

Answer 21

circumstances that make the offence more serious and can lead to an increased sentence and may include: - Record of previous convictions - Hate crime - Substantial harm resulted from the offence - Involves gratuitous violence

Question 22

what are mitigating factors and examples

Answer 22

Mitigating factors - which often lead to a reduction in the sentence and can include: - The injury, emotional harm, loss or damage caused by the offence wasn’t substantial - Provoked by victim or acted under duress - Shows remorse

Question 23

what are other factors that may influence a sentencing decision

Answer 23

- whether or not the accused pleaded guilty - whether or not the offender assisted law enforcement authorities - a victim impact statement from victims of the offence

Question 24

what is the role of the victim in sentencing

Question 24

what are VIS and when were they introduced

Answer 24

Statements made by victims which are usually only permitted for serious offences involving violence or the death or physical harm of a person and only if the court deems it appropriate Victim impact statements were introduced in 1996 - The Victim’s Rights Act, 1996 (NSW) established the Charter of Victim Rights, the Victims of Crime Bureau and the Victims Advisory Board

Question 24

why are VIS controversial

Answer 24

- they can be very subjective yet have a significant effect on sentencing - Recent amendments have made it so that a judge may take a family VIS into account when sentencing an offender found guilty of murder → May remove the impartiality of a judge → court may hand down different punishments according to whether the victim was more or less loved by their family

Question 24

when can a family VIS be taken into account during sentencing

Answer 24

when sentencing an offender found guilty of murder

Question 25

what is an appeal

Answer 25

an effective mechanism of ensuring justice for the accused is not lost because of an error made at the first instance (eg. jeffrey gilham, gordon woods, cardinal pell)

Question 26

what can a defendant lodge an appeal against

Answer 26

Defendants may appeal against their conviction and/ or sentence on the grounds of: → the severity of the sentence → an error partly based on the facts and partly grounded in law → an error of law If appealing against the severity of the sentence, the defendant runs the risk that the appeal court may increase the sentence

Question 27

what can the prosecution lodge an appeal against

Answer 27

when they believe the sentence is too lenient

Question 28

when will an appeal to the criminal court be successful

Answer 28

An appeal against conviction or a sentence appeal to the court of criminal appeal will only succeed if the person can show that there was a legal error eg. sentence imposed was too severe or too lenient

Question 29

what legislation details the types pf penalties that can be imposed by a judge or a magistrate

Answer 29

The Crimes (Sentencing procedure0 Act 1999 (NSW)

Question 30

what is a caution

Answer 30

formal warning used for summary offences as a way to avoid the court system - recorded on a persons record - police have the power to caution adults for minor drug offences and may also caution children

Question 31

what is a fine

Answer 31

the most common form of penalty, payable to the state -> may be used in conjunction with other penalties penalty units

Question 32

what is a criminal infringement notice and what is the purpose

Answer 32

penalty that can be issued by the police (introduced in 2007) and allows the police to issue on the spot fines for offences including larceny of goods valued at less than 300$, offensive behaviour or language and obstructing traffic - Aims to remove some burden of the criminal court system by allowing police to just issue fines for minor offences Benefits offenders as no conviction is recorded when they accept the notice

Question 33

what is the forfeit of assets and which act governs this penalty

Answer 33

criminal assets recovery act 1990 (NSW)

Question 34

what is a community corrections order

Answer 34

replaced community service orders - Involves compulsory supervised work in the community, supervision by community corrections officers and curfews - Up to a period of three years - instead of a period of detention or imprisonment - Holds the offender accountable by punishing and shaming but allows for rehabilitation outside the prison system - Cost effective and rehabilitative aspect is beneficial to the wider community

Question 35

what is an intensive corrections order

Answer 35

replaced suspended sentences and home detention - Sentence of imprisonment served in the community under strict supervision instead of prison - Court order for imprisonment (for no more than 2 years) which directs that the sentence is served by way of intensive correction in the community - An ICO must also include at least 1 other additional condition eg. travel restrictions, strict curfew, electronic monitoring

Question 36

what is a conditional release offer

Answer 36

new in 2017 - An offender is required to accept compulsory restrictions for up to 2 years during which at the time, the offender undertakes to regularly report to and obey directions from their community corrections officer - significant restriction on freedom - If an offender breaches the CRO they will have to appear in court again and may be sentenced to more serious penalties eg, imprisonment

Question 37

what are diversionary programs

Answer 37

court programs set up to divert certain offenders from more traditional crime processes in the hope that they can be rehabilitated and encouraged no to reoffend - Only available for particular offences or types of offenders - Many diversionary programs are set up to support offenders who have committed crimes due to drug and alcohol abuse - Effectiveness → reduces court time, reduces recidivism, better outcomes for society and individual - Ineffectiveness→ access not available for all offenders, geographical jurisdiction restriction on some programs - MERIT program - Youth justice conferencing scheme

Question 38

what are alternative methods of sentencing

Answer 38

circle sentencing and restorative justice

Question 39

what is circle sentencing and what is its aim

Answer 39

alternative form of sentencing available to aboriginal offenders - ONLY IF THEY PLEAD GUILTY - generally used to deal with more serious crimes and often entails full community involvement as well as consideration of traditional indigenous forms of dispute resolution and customary law - Criminal procedure regulation 2017 (nsw) allows for circle sentencing and lays out the process aim of circle sentencing is Aims of circle sentencing include: reduce recidivism in aboriginal communities, - include ATSI members in the sentencing process, - increase ATSI confidence in the sentencing process, - provide more appropriate options for ATSI members

Question 40

what is restorative justice

Answer 40

Involves bringing together the offender and the victim of the offence with the goal for the offender to make amends to the victim and take responsibility for their crimes through direct interaction Process uses a conference which is attended by the offender, the victim and supporters of each who all agree to participate Program examples: → youth justice conference → forum sentencing

Question 41

what are some post sentencing considerations

Answer 41

- security classification - protective custody - parole - preventative detention - continued detention - sexual offenders registration - deportation

Question 42

what is security classification

Answer 42

When sentenced to imprisonment, corrective services nsw will assess the security risk of the prisoner so that they can be sent to the most appropriate correctional facility (prisons) - Administration of imprisonment and other sentences is governed by the crimes (Administration of sentences) act 1999 (nsw)

Question 43

what is protective custody

Answer 43

prisoners who feel that they are in danger from other prisoners can apply to be placed in protective custody eg. child sex offenders, former police officers and prisoners with a mental illness

Question 44

what is parole

Answer 44

conditional release of a prisoner from custody after the completion of the minimum term of the sentence - allows well behaved prisoners to be released earlier - the fundamental principle of parole is to provide the offender with an incentive for rehabilitation - when released on parole, the offender is put under the direct supervision of a parole officer - an offender isn't eligible for parole until they have served 2/3s of their custodial sentence - consider 2-18 parole reforms

Question 45

what is preventive detention

Answer 45

also called continued detention aimed at offenders whose history indicates that they have entrenched criminal behaviours (eg. violent and sexual offences) - Crimes (high risk offenders) act 2006 - Post sentence preventive detention (continued detention) which occurs when a person has already been sentenced and has served that sentence → highly controversial as it undermines fundamental principles of the criminal justice system (POI) - highlights tensions in balance the rights of the offender, the victim and the community - 2018 reforms related to continued detention via Crimes (high risk offenders) amendment bill 2017

Question 46

what is preventive detention without charge

Answer 46

The most severe type of preventative detention is legislation that is targeted at individual offenders Eg. in NSW the Part 2A of the Terrorsim (police powers) Act 2002 (NSW) allows police to take into custody and detain an individual for a maximum period of 14 days in order to : → prevent an imminent terrorist act → preserve evidence of, or relating to, a recent terrorist act People under preventative detention orders have rights

Question 47

what is sex offenders registration as a post sentencing consideration

Answer 47

- Serious sex offenders names are placed on a register with access by the police - The NSW Child protection register was established under Child Protection (offenders registration) Act 2000 (NSW) - Offenders must keep the state police informed of their name, date of birth, residential address, employment, motor vehicle registration, the offences and travel arrangements for a specified period of time - Adult offenders must register for 8 years while juvenile offenders must register for 4 - 2007 amendments require DNA samples

Question 48

what is deportation

Answer 48

Under the migration act 1958 (cth), a migrant living is Aus who isn’t a citizen anymore may be deported if they are tried and convicted of a criminal offence → this requires a specific order made under s206 Non citizens who are subject to a prison sentence of 12 months or more and have been resident in Aus for less than 10 years automatically fail the character test in the migration act 1958 (cth)

Question 49

what is sentencing

Answer 49

sentencing is when a judge decides on a punishment - the sentence is the sanction imposed by the state in relation to the offenders criminal conduct sentencing is an established area of criminal law and there are numerous laws, rules, guidelines and cases on how sentences are to be determined - these guidelines are important as there is tension between achieving consistency in sentencing and individual justice and the statutory force of a guideline judgement and limiting the discretion of judges