Factors Affecting A Sentencing Decision

Question 1

What happens to a judge decision after deciding on an overall objective of punishment?

Answer 1

The judge must now consider more specific elements referred to as objective factors and subjective factors

Question 2

What are objective and subjective factors

Answer 2

Objective: factors relating to the nature of the offences itself. Such as whether the offender was armed or in company, threatened or used violence, has inflicted great or slight injury

Subjective: factors which relate to th offender themselves. Such as age, prior record, plea or disability, family commitments

Question 3

Mitigating and aggravating factors

Answer 3

In combination with objective and subjective factors, the judge or magistrate will also be asked to consider :

Mitigating: those factors which are favourable to the offender, lessening culpability and tending to lessen the sentence
They include:
- the victim was a police officer, emergency services officer, judicial officer, health worker, teacher, or someone in a community service role
- the offender involved the actual or threatened use of violence
- the offence involved gratuitous cruelty
- the offender was in a position of trust or authority in relation to the victim
- the victim was vulnerable (e.g. very old, young, had a disability)

Aggravating: factors which tend to increase the seriousness of the offence and the offender’s culpability or blameworthiness
They include:
- the offender was provoked by the victim
- the o fender was acting under duress
- the injury or emotional harm caused was not substantial
- the offender does not have any record of previous convictions
- the plea of guilty by the offender

Question 4

Law reform: guilty pleas as a mitigating factor

Answer 4

Guilty pleas have traditionally been viewed as a mitigating factor as it demonstrates remorse on the part of the offender, the law has been recently reformed in this area.

2018 law reform:
- sentencing discounts for guilty pleas are tightly prescribed by legislation aiming to encourage early appropriate guilty pleas
- previously the common law provided for a sentence discount of up to 25 percent for an early guilty plea. However, a defendant who entered the plea at a late stage of the process, even on the day of the trial, could still get the benefit of the maximum sentence discount
- the reform tightly prescribes the following sentence discounts for indictable offences based on the timing of the plea, providing a clear incentive to plead guilty early:

Before commital in the local court: discounts 25 percent off
Up to 14 days before the first day of trial in the district/ Supreme Court: 10 percent off
In any other circumstances: 5 percent off

Question 5

Other sentencing factors

Answer 5

• Submissions on sentence: both the defence and prosecution have the opportunity to make a submission on the sentence to the judge/ magistrate. Both can call on decisions from previous cases to suggest an appropriate range of sentences.
• The court can also draw on information such as psychiatric reports or information on the social background of the offender ‘
• victim impact statements: statements by the victim that explain the harm suffered. These are useful in cases where the court dos not have an opportunity to hear the victim’s testimony, such as when the offender pleads guilty.

Question 6

What are criticisms of victim impact statements

Answer 6

• they present only the subjective view of the victim
• may contain information that is exaggerated or not true
• can result in inconsistent sentences because of the differing nature of victims