Crimes Sentencing Procedure

Question 1

Section 3A of the Crimes Sentencing Procedure Act 1999 sets out the purposes of sentencing what are they?

Answer 1

D.D.R.R.A.P.P
Deterrence
Denouncing conduct
Rehabilitation
Recognise harm to victim and community
Accountability
Punishment
Protection of community

Question 2

When sentencing what does the principal Proportionality mean?

Answer 2

Need for a relationship between the gravity of the offence and the penalty being imposed.

Question 3

When sentencing what does the principal Parity mean? What is the case law authority?

Answer 3

Fairness.
R v Shortland put obligation on Prosecutors to inform sentencing court of the sentence and remarks on the sentence of the Co Accused.

Question 4

What does the Case Law R V Paris say about the role of the Prosecutor?

Answer 4

The Crown does have an obligation to draw to the attention of the judge all relevant sentencing options and to ensure that appropriate options are not overlooked…
The Crown’s role is not to secure a conviction at any cost, nor is it the Crown’s role to secure the heaviest available penalty.

Question 5

An intensive Correction Order (ICO) allows for what conditions that CCO and CRO don’t?

Answer 5

Home Detention
GPS Tracking/Electronic Monitoring.
***No condition to appear at court if called.

Question 6

Community Release Order or CRO can only be made for a maximum of two years true or false?

Answer 6

True.

Question 7

ICO allows for up to 750 hours community service and a CCO allows for up to 500. How many hours does a CRO allow?

Answer 7

0.

A CRO cannot imposed a condition of community service.

Question 8

What mandatory condition must ICO, CCO and CRO have?

Answer 8

Not commit any offence.
Must appear at court if called.
ICO does not have the condition to appear at court.

Question 9

An ICO must have supervision and at least one other condition, true or false?

Answer 9

True.

Question 10

What does Section 5 of the Crimes Sentencing Procedure Act 1999 say?

Answer 10

S.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.

Question 11

How long is the maximum a Community Corrections order CCO be made for?

Answer 11

3 years aggregate.

Question 12

Can a CRO be given on a non-conviction or only conviction?

Answer 12

It can be given on a non-conviction or a conviction

Question 13

Under section 10 of the Crimes Sentencing Procedure Act 1999 what are the three sentencing options?

Answer 13

10 (1) (a) - Non conviction and dismissal.
10 (1) (b) - Non conviction and CRO
10 (1) (c) - Non conviction and intervention program.

Question 14

What does the Case Law R v Di Simoni say?

Answer 14

Fact which would have warranted a conviction for a more serious offence cannot be taken into account on sentencing for the offence that the defendant has please to or been found guilty of.

Question 15

What orders can be requested upon sentence?

*Prosecution should have material to assist the request.

Answer 15

Place Restriction Order
Firearms Destruction Order
Drug Destruction Order
Compensation Order
Photos and Fingerprints S133/S134
Return of Property Order

Question 16

Do the rules of evidence apply in sentencing matters?

Answer 16

No generally unless the court directs.

S.4 Evidence Act 1995
(1) This Act applies to all proceedings in a NSW court, including proceedings that:

(2) If such a proceeding relates to sentencing:
(a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.

Question 17

What does the Case Law R v O’Neill say?

Answer 17

A plea of guilty in itself carries with it an admission of the essential legal ingredients of the offence and no more.

Question 18

What does the Case Law R v Meissner say?

Answer 18

A court will accept a plea of guilty by a person of

• full age,
• sound mind and understanding,
• provided the plea is an exercise of free choice in that person’s interests, even if that person is not in truth guilty of the offence.

Question 19

Under what section of the Crimes Sentencing Procedure Act 1999 list the Aggravations and Mitigation on sentencing?

Answer 19

Section 21A (2)- Aggravating

S21A (3) Mitigating factors.

Question 20

What does 10A do?

Answer 20

Convicts the defendant but dismisses penalty.

Question 21

What test is applied under S5 CPA?

Answer 21

The threshold test

Question 22

What is the case law for Section 5 CPA, and what does it state?

Answer 22

R v Zamagias (2002) NSWCCA 17

1. That no penalty other thatn imprisonment is appropriate.
2. A decision is to be made on the term of the imprisonment.
3. The method of imprisonment is to be decided (full time or ICO).

Question 23

What standard of proof are circumstances of aggravation heard on?

Answer 23

Beyond reasonable doubt.

Question 24

What standard of proof are circumstances of mitigation heard on?

Answer 24

Balance of probabilities

Question 25

What are three examples of Aggravating factors?

Answer 25

In Company
Committed against victim due to their employment i.i Police, Fire, Ambulance
Use of or threatened use of weapon
Use of or threatened use of Violence

Question 26

What are 3 examples of mitigating factors?

Answer 26

Defendant was provoked
not organised criminal activity
No criminal record
Defendant under duress

Question 27

What case law relates to Aggravating and mitigating factors?

Answer 27

R v Storey

Question 28

What should a prosecutor do if they intend to make an appeal? What is the authority?

Answer 28

R v Paris - The prosecutor should ordinarily have at least sought to be heard on sentence.

Question 29

What does R v Henry state in relation to appeals?

Answer 29

Prosecutor may appeal if they believe the sentence to be manifestly inadequate.

Question 30

How long do we have to begin an appeal?

Answer 30

28 days from sentence.

Question 31

S 43 of CPA states what? What case law relates?

Answer 31

R v Finnie.
S43 - Court may re open proceedings to correct sentencing errors.
- if a sentence was imposed contrary to law
- If the magistrate failed to impose a penalty required to be imposed by law.