Sentencing Flashcards
What Act and Section defines the purposes of sentencing? List the purposes of sentencing.
Section 3A of the Crimes (Sentencing Procedure) Act 1999. The purposes for which a court may impose a sentence on an offender are as follows–
a) ADEQUATE PUNISHMENT
b) To prevent crime through DETERRENCE (‘specific’ to the offender to stop them committing offences and/or ‘general’ to stop members of community committing similar offences)
c) PROTECT THE COMMUNITY
d) Promote REHABILITATION of the offender
e) Make offender ACCOUNTABLE for their actions
f) DENOUNCE the conduct of the offender
g) RECOGNITION OF THE HARM DONE to the victim or community
What Act and Section defines the Aggravating factors in sentencing? List the aggravating factors.
Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows–
a) Victim was a police officer, emergency service worker, corrections officers, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official who was exercising their community function and the offence arose because of the victim’s occupation
b) Actual or threatened use of violence
c) Actual or threatened use of a weapon
ca) Actual or threatened use of explosives or a chemical or biological agent
cb) Offender caused the victim to inhale or be affected by drugs, alcohol or other intoxicating substance
d) Record of previous convictions
e) Offence committed in company
ea) Offence committed in presence of a child under 18
eb) Offence committed in someone’s home
f) Offence involved gratuitous cruelty
g) Injury, emotional harm, loss or damage caused by the offence was substantial
h) Offence motivated by hatred or prejudice against particular group
i) Committed without regard for public safety
ia) Actions of offender were risk to national security
ib) Offence involved grave risk of death to another
j) Offence committed while offender on conditional liberty
k) Offender abused position of trust or authority in relation to victim
l) Victim was vulnerable (e.g. very young or very old, disability, geographical isolation or job e.g. taxi drivers, bus driver etc)
m) Offence involved multiple victims or series of criminal acts
n) Offence part of a planned or organised criminal activity
o) Offence committed for financial gain
p) Offence was a prescribed traffic offence and person under 16 was a passenger
What Act and Section defines the Mitigating factors in sentencing? List the mitigating factors.
Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial
(b) the offence was not part of a planned or organised criminal activity
(c) the offender was provoked by the victim
(d) the offender was acting under duress
(e) the offender does not have any record (or any significant record) of previous convictions
(f) the offender was a person of good character
(g) the offender is unlikely to re-offend
(h) the offender has good prospects of rehabilitation
whether by reason of the offender’s age or otherwise
(i) the remorse shown by the offender for the offence, but only if–
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A)
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A)
(m) assistance by the offender to law enforcement authorities (as provided by section 23)
(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).
If a person is convicted of a Domestic Violence offence what section specifically created for DV offences must the court consider when deciding on the type of sentence?
Section 4A of the Crimes (Sentencing Procedure) Act 1999. Domestic Violence offenders – requirement for full time detention or supervision.
(1) If found guilty of DV offence the court must impose either
a) a sentence of full time detention or
b) a supervised order (e.g. ICO, CCO, CRO each with supervision condition)
(2) Court doesn’t have to impose either if satisfied different sending option more appropriate
What Act and Section identifies community safety considerations when considering an ICO?
Section 66 of the Crimes (Sentencing Procedure) Act 1999.
(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.
3) Talks about still considering 3A provisions and any common law provisions or other relevant matters
What is the prosecutors role in sentencing?
Prosecutors role is to assist the court to get to the right sentencing decision. It is guided by the barristers rules that we are expected to comply with.
Bar rule 83: Assist the court to arrive at the truth. Impartially place all evidence intelligibly before the court, assist the court with adequate submissions of the law
Bar Rule 86: Must not argue proposition of fact or law which prosecutor does not believe on reasonable grounds to carry weight
Bar Rule 95: Must not seek vindictive sentence or sentence of particular magnitude, but correct error by opponent on sentencing address and inform court of relevant authority or legislation bearing on appropriate sentence and to avoid appeasable error on sentence
Under what circumstances should you not tender Fact Sheets?
Imprisonment total in excess of 5 years (s58 CSPA)
Plea of guilty and DPP Election Pending
What does s58 of CSPA address?
Limitation on consecutive sentences imposed by the local court.
(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.
(2) ..
(3) ..
What happens if there is a plea of guilty but we are still waiting on a DPP election outcome?
DO NOT hand up the fact sheet to the court. The DPP cannot elect to prosecute a T1 or T2 offence after the tender of the fact sheet.
If aggravating or mitigating circumstances are presented to the court, is it required to increase or reduce the sentence?
No. Section 21A(5) highlights that any aggravating or mitigating factor known to the court does not require the court to reduce or increase the sentence, BUT it may influence the type or magnitude of sentence in relation to purposes of sentencing.
In sentencing, any issues that are not captured by aggravating or mitigating circumstances but go towards the nature and seriousness of the offence are captured by which section?
Section 21A(1)(c):
“Any other objective or subjective factor that affects the relative seriousness of the offence”
i.e. nature and number of blows, or that the victim was rendered unconscious etc.
What is the standard of proof in asserting the circumstances of aggravation or mitigation?
Aggravating: Prosecution must prove these factors beyond a reasonable doubt.
Mitigating: Defence must show these on balance of probabilities.
What is a disputed facts hearing and sections governs it?
A plea of guilty is only a plea to the essential legal ingredients of the offence as per the indictment. Where portions of fact sheet aren’t agreed on can be disputed. If prosecutor has evidence that supports the fact sheet then position should be maintained.
Court may direct under s 4(1) and (2) of the Evidence Act that a disputed facts hearing is held and evidence can properly be tested.
Remember this is really just a hearing about aggravating and mitigating factors. Prosecution required to prove aggravating factors beyond a reasonable doubt.
What can prosecution tender on a plea of guilty?
Factsheets Criminal History Traffic History Infringement Notice Photos CCTV Certificates Judicial Statistics Victim Impact Statements Form 1 (additional charges filed for offences charged but not convicted) Guideline Judgements
What can the defence tender on sentence?
Must not tender evidence that contradicts the guilty plea or agreed facts. If so, it would be unfair to the prosecution. As such should be challenged if done.
What does the sentencing Ladder refer to?
The level of granularity in sentencing options. For example if someone has a CCO and further offends, Instead of jumping to the next rung on the ladder (say an ICO), they could add additional additional conditions to the CCO. Upon resentencing the court can increase the severity of order by adding or varying conditions rather than by escalating to heavier form of sentence. Can also issue same order multiple times with different conditions.
List the different sentencing options from highest to lowest.
Full time Imprisonment
ICO - Intensive Correction Order
CCO - Community Correction Order
CRO - Conditional Release Order (conviction recorded)
Fines
S10A - Conviction recorded - No other penalty
Section 10(1)(c)
CRO - Conditional Release Order (No Conviction) S 10(1)(b) - No conviction recorded
Section 10(1)(a)
What does section 10 of the CSPA provide for?
Section 10(1)(a) - Non conviction and dismissal
Section 10(1)(b) - non conviction and CRO(issued under s9(1)(b) which is a CRO without a conviction recorded)
Section 10(1)(c) - non conviction and intervention program (such as TOP [traffic offenders program])
What are some of the factors the court can have regard to in making an order under s10 of CSPA?
s10(3) of CSPA
(a) the person’s character, antecedents, age, health and mental condition
(b) the trivial nature of the offence
(c) the extenuating circumstances in which the offence was committed
(d) any other matter that the court thinks proper to consider.
Explain CROs
- Have two types - either conviction or non-conviction
- Are a non-custodial sentence
- Can be given for offences, whether the penalty available is Fine only OR imprisonment
- Max 2 years to any part of the CRO
- Cannot give a fine and a CRO
- Application to vary can be made to the court
CRO is an order of the court.
STANDARD CONDITIONS
(MANDATORY)
- Must not commit any offence
- Must appear before the court if called on to do so
ADDITIONAL CONDITIONS (SNAPR)
- Supervision condition
- Non- association condition
- Abstention condition from alcohol or drugs
- Place restriction condition
- Rehab or treatment condition
FURTHER CONDITIONS
- Any conditions it considers appropriate
Explain CCOs
- Are a non-custodial order
- Always carry a conviction
- Are only available where imprisonment is available
- Can get a fine AND a CCO
- Max 3 years for any condition of the CCO
- Applications to vary, revoke, impose, add conditions by Community Corrections Officer, Juvenile Jusice Officer or offender BUT NOT POLICE. Court may refuse to hear application if without merit (s91(1))
STANDARD CONDITIONS
(MANDATORY)
- Not commit any offence
- Must appear before court if called on to do so
ADDITIONAL
In additional to additional conditions for CRO a CCO can also have:
- A curfew condition <=12 hour in 24 hour period
- A Community Service Work condition (CSWC) <=500 hours
FURTHER Conditions
- any conditions at all which it considers appropriate
Explain ICOs
Can only be given when a court has sentenced an offender to imprisonment.
A non-parole is not to be set
ICOs not available to under 18s
Can’t be made for single offence impriosnment >2 years
Cant be for multiple offence imprisonment >3 years
Can’t be made for excluded offences, including murder, prescribed sexual offences and other serious offences
DV - ICO must not be made unless satisfied vic adequately protected
CCOs and CROs administered by courts but ICOs health by State Parole Authority - Auto notifications to Community Corrections officer of breaches
STANDARD
(MANDATORY)
- Must not commit any offence
- Must submit to supervision by a CCOff
ADDITIONAL (at least one)
Court must make a record for reason for NOT imposing an additional condition
- Home detention condition (if suitable assessment report [can only be applied for after specified term of imprisonment imposed])
- Electronic monitoring condition
FURTHER conditions
- anything court considers appropriate
What is the three stage process a court must follow when considering imposition of imprisonment?
- Decide no penalty other than a term of imprisonment is appropriate
- Decide TERM of imprisonment
- Decide METHOD (Full time (s5) or ICO (s7) )
TO make an ICO the court needs to:
- Decide no penalty other than a term of imprisonment is appropriate. If determined person is not suitable for an ICO (refer to sentencing assessment report), only alternative left is full time impriosnment
- Decide TERM of sentence (without setting non-parole)
- Decide method full time s5 or ICO s7
What are the rules surrounding prison terms?
s5 outlines rules for sentencing a term of imprisonment
Imprisonment is last resort - 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. KNOWN AS THE THRESHOLD TEST.
- A prison term may be applied up to a maximum of that prescribed for each offence
- In local court, s58 precludes court from imposing consecutive prison terms in excess of 5 years
- The non-parole period is set, then the parole period specified must not excess 1/3 of the non-parole period. so Non-parole period is 3/4 and parole period is 1/4. UNLESS SPECIAL CIRCUMSTANCES EXIST
- No non-parole for terms of imprisonment less than 6 months (s46).
- The rising of the court is a term of imprisonment of time served, usually on remand or awaiting sentence.
