Sentencing

Question 1

What are the sentencing guidelines?

Answer 1

Considers the seriousness of the offence and whether it is deemed a high or low-grade offence for the crime committed.

Question 2

How does a court assess seriousness?

Answer 2

(a) The offender’s culpability;

(b) any harm which the offence caused, intended to cause, or might foreseeably have caused.

Question 3

What are the four levels of culpability?

Answer 3

(1) Intention to cause harm, planned offence;

(2) Reckless as to harm caused, little thought given to consequences;

(3) Knows the risks but no intention of the resultant harm;

(4) Negligence

Question 4

How is harm assessed in the context of seriousness?

Answer 4

Considers:

(a) physical injury;
(b) sexual violation;
(c) financial loss;
(d) damage to health; and
(e) psychological distress.

Question 5

What are the statutory aggravating factors in sentencing?

Answer 5

(i) Previous convictions;

(ii) If the offence was committed on bail;

(iii) Racial or religious aggravation;

(iv) Sexual orientation or disability-based hostility.

Question 6

What are the common law aggravating factors?

Answer 6

(a) planned/pre-meditated offence;

(b) operating in groups/gangs;

(c) targeting of the vulnerable;

(d) intoxication;

(e) weapon use;

(f) offence against a public service worker;

(g) value of property damage

Question 7

What are the mitigating factors in sentencing?

Answer 7

(a) D acted on impulse;

(b) D was provoked;

(c) D suffers from mental/physical disability;

(d) D’s age (E.g. very young, less culpability);

(e) minor role in the offence;

(f) D motivated by fear;

(g) D made attempts to make reparation/apologised

Question 8

What is the (maximum) reduction in sentence for guilty pleas?

Answer 8

1/3 if at the first stage of proceedings;

1/4 if before trial;

1/10 if during trial.

Question 9

What are:

Consecutive sentences; and
Concurrent sentences?

Answer 9

Consecutive: One after another, is the case where the offences are unconnected;

Concurrent: At the same time, is the case when the offences arise out of the same bit of offending.

Question 10

What are the categories of offending?

Answer 10

Category 1: High harm and high culpability;

Category 2: Low harm and high culpability or vice versa;

Category 3: Low harm and low culpability

Question 11

What are the different types of sentences?

Answer 11

Custody;
Suspended;
Community

Question 12

What is the threshold for a custodial sentence?

Answer 12

Where the offence was so serious that neither a fine nor community sentence can be justified for the offence.

Question 13

What must the court consider concerning the length of a custodial sentence?

Answer 13

Must be for the shortest term that is appropriate considering the seriousness of the offence.

Question 14

What level of custodial sentence can be suspended? How long for?

Answer 14

A custodial sentence between 14 days to 2 years can be suspended for between 6 months and 2 years

Question 15

Why would a court impose a suspended sentence?

Answer 15

If it decides that the custody threshold is met, but there are circumstances which justify suspension - e.g. caring obligations.

Question 16

What are the four options a court must impose if a defendant has breached a suspended sentence in its operational period?

Answer 16

(a) the original sentence takes effect unaltered;

(b) the original sentence to take effect for a shorter time;

(c) community orders added to the original order; or

(d) extend the operational period or the supervision period

Question 17

What is the threshold for a community order?

Answer 17

The offence, or combination of offences, was serious enough to warrant the making of a community order.

Question 18

What happens if a community sentence is breached?

Answer 18

First time: D received a warning from the probation officer;

Second time: Court must: (i) amend the order for more onerous requirements; (ii) revoke the order and re-sentence D; (iii) if more than twice and persistent, the court may revoke the order and impose a custodial sentence.

Question 19

When does the court consider a Newton hearing?

Answer 19

(i) D has pled guilty; but
(ii) D has pled guilty on materially different facts which affect the sentencing category

Question 20

What happens at a Newton hearing?

Answer 20

The defendant and prosecution must put evidence forward supporting their version of events.

This allows the court to assess the true factual circumstances of the offending.