Part 3 - Sentences; Division 1 - General Flashcards
Section 7 - Sentences
(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act
● (a) Record a conviction and order a term of imprisonment
● (aab) Record conviction and order offender be detained and treated in a designated mental health service as a security patient (CSTO)
● (ac) Record a conviction and make a DATO in respect of the offender
● (d) In the case of a young offender (under the age of 21 years at the time of being sentenced), record a conviction and order that they be detained in a YJC
● (da) In the case of a YO, record a conviction and order they be detained in a YRC
● (e) With or without recording a conviction, make a CCO
● (f) With or without recording a conviction, order a Fine
● (g) record Conviction and order release on adjournment of the hearing on conditions
● (h) record Conviction and order the discharge of the offender
● (i) w/o recording conviction, order release on adjournment of hearing on conditions
● (j) w/o recording a conviction, order the dismissal of the charge for the offence
● (k) Impose any other sentence/order that’s authorised by this/any other Act.
(2) If MCV or CCV finds someone guilty, can defer sentencing in accordance with 83A.
S 8 Conviction or non-conviction
(1) In exercising its discretion whether or not to record a conviction, court must have regard to all the circumstances of the case including:
● (a) Nature of the offence
● (b) Character and past history of the offender
● (c) conviction’s impact on offender’s economic/social well-being/e’ment prospects
● (2) Except as otherwise provided by this or any other act, finding of guilt w/o recording of a conviction must not be taken as a conviction for any purpose
● (3) guilty finding w/o recording conviction (a) doesn’t prevent court from making any other order it’s authorised to make in consequence of finding by this/any other Act
● (b) And it has the same effect as if one had been recorded for the purposes of —
○ (i) Appeals against sentence
○ (ii) Proceedings for variation or contravention of sentence
○ (iii) Proceedings against the offender for subsequent offences
○ (iv) Subsequent proceedings against the same offender for the same offence
8A Court may order pre-sentence report
(1) If Court finds person guilty of offence, before passing sentence Court may order PSR and adjourn proceeding to enable report to be prepared
(2) Court Must order PSR if considering making CCO, YJC order /YRC order so that it may:
● (a) Establish person’s suitability for order being considered;
● (b) Establish that any necessary facilities exist;
● (c) If CCO being considered, gain advice concerning most appropriate conditions
(3) PSR Not required if considering making a CCO with the sole condition of unpaid community work of 300 hrs or less
(4) Prepared by relevant Secretary (a)/(b)
(5) Author of PSR must conduct any investigation thought appropriate/as directed by Court
8B Contents of pre-sentence report
(1) The PSR may set out all or any of the following matters which, on author’s investigation, appear to be relevant and readily ascertainable:
● (a) offender’s Age
● (b) offender’s Social history and background
● (c) offender’s Medical and psychiatric history
● (d) any alcohol/ drug/ substance abuse history disclosed by the offender
● (e) Educational background of offender
● (f) employment history of offender
● (g) Circumstances of any other previous offending of which offender found guilty that are known to the Court
● (h) Extent to which offender complying with any sentence currently in force
● (i) financial circumstances of the offender
● (j) Ability of the offender to pay a bond
● (k) Any special needs of the offender
● (l) Any other services that address risk of recidivism from which offender may benefit
● (m) Any courses, programs, treatment therapy or other assistance that could be available and from which offender might benefit
● (n) Relevance and appropriateness of any proposed condition
● (o) Capacity of offender to perform unpaid community work for any proposed UCW condition
● (p) Recommended duration of any intensive compliance period fixed under CCO
● (pa) If monitored condition is proposed in relation to a CCO:
○ (i) Suitability of offender to be electronically monitored;
○ (ii) Availability of appropriate resources or facilities for offender to be EM
○ (iii) Appropriateness of EM in all the circumstances
● (q) Appropriateness of confirming an existing order that applies to the offender
● (r) Any other information that the author believes is relevant and appropriate
● (2) The author of a PSR must include in the report any other matter relevant to the sentencing of the offender which the court has directed to be set out in the report.
8E — Drug and alcohol assessment report
(1) If court is considering making a CCO, court can order a drug and alcohol assessment report if satisfied that the offender had a drug or alcohol dependency that contributed to the offender’s criminal behaviour.
(2) Must be prepared by an approved drug and alcohol assessment agency.
(3) Purpose of a drug and alcohol assessment report is to:
● (a) assess whether offender has a drug/alcohol dependency; and
● (b) make recommendations as to suitability to undergo treatment + rehab under CCO
(4) report may set out any matters which appear to author on investigation to be relevant to assessment of offender and are readily ascertainable by author.
(5) Author must conduct any investigation they think appropriate or as directed by the Court.
8K — Victim may make victim impact statement
(1) Victim can make a VIS if person found guilty, for purposes of assisting court in determining sentence
Victim is defined as: a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as direct result of offence, whether or not that injury, loss or damage was reasonably foreseeable by offender
(2) VIS can be made:
● (a) In writing by statutory declaration; or
● (b) In writing by statutory declaration and orally by sworn or affirmed evidence
●
(3) VIS can also be made by another person on behalf of the victim —
● (a) Who is under the age of 18 years; or
● (b) Who the court is satisfied is incapable of making the statement because of mental illness or for any other reason; or
● (c) That is not an individual (e.g. a body like a shop)
8L — Contents of victim impact statement
● A VIS:
○ (1) contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence.
○ (2) may include photographs, drawings or poems and any other material that relates to the impact of the offence on the victim or to any injury, loss or damage suffered by the victim as a direct result of the offence.
○ (3) The court may rule as inadmissible the whole or any part of a VIS, including the whole or any part of a medical report attached to it.
● (4) It is Parliament’s intention that in interpreting and applying this section, courts have regard to the following:
○ (a) VIS allows victim to tell the court about the impact of the offence on victim
○ (b) VIS not inadmissible merely b/c contains subjective/emotive material
● (5) Court may receive whole of a VIS despite:
○ (a) an objection being taken to the whole of the statement or part of it; or
○ (b) statement containing inadmissible material
● (6) If the Court receives a VIS that contains inadmissible material, court in sentencing the offender:
○ (a) Is not to rely on the material that court considers to be inadmissible; and
○ (b) Need not specify which of the material is not being relied on.
8Q — Reading aloud of victim impact statement
(1) A VIS author may request that any part of that VIS (a) be read aloud in Court in course of sentencing hearing/displayed in Court by either (i) themselves, or
(ii) a person chosen by them with the consent of the person and the approval of the Court.
(b) Or that it is read aloud in course of sentencing hearing by the prosecutor.
(2) If this happens, court must ensure that any admissible parts of the VIS that are (a) identified in request and are (b) appropriate/relevant to sentencing are read aloud or displayed in open court in the course of the sentencing hearing.
(3) Court may direct person who made request or chosen person as to which admissible parts of the VIS are appropriate and relevant to sentencing.
(4) Nothing here prevents presiding judge/magistrate from reading aloud any admissible part of VIS in course of sentencing offender/at any other time in course of sentencing hearing.
