Sentencing Flashcards
What are the sentencing guidelines?
Considers the seriousness of the offence and whether it is deemed a high or low-grade offence for the crime committed.
How does a court assess seriousness?
(a) The offender’s culpability;
(b) any harm which the offence caused, intended to cause, or might foreseeably have caused.
What are the four levels of culpability?
(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
How is harm assessed in the context of seriousness?
Considers:
(a) physical injury;
(b) sexual violation;
(c) financial loss;
(d) damage to health; and
(e) psychological distress.
What are the statutory aggravating factors in sentencing?
(i) Previous convictions;
(ii) If the offence was committed on bail;
(iii) Racial or religious aggravation;
(iv) Sexual orientation or disability-based hostility.
What are the common law aggravating factors?
(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
What are the mitigating factors in sentencing?
(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
What is the (maximum) reduction in sentence for guilty pleas?
1/3 if at the first stage of proceedings;
1/4 if before trial;
1/10 if during trial.
What are:
Consecutive sentences; and
Concurrent sentences?
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.
What are the categories of offending?
Category 1: High harm and high culpability;
Category 2: Low harm and high culpability or vice versa;
Category 3: Low harm and low culpability
What are the different types of sentences?
Custody;
Suspended;
Community
What is the threshold for a custodial sentence?
Where the offence was so serious that neither a fine nor community sentence can be justified for the offence.
What must the court consider concerning the length of a custodial sentence?
Must be for the shortest term that is appropriate considering the seriousness of the offence.
What level of custodial sentence can be suspended? How long for?
A custodial sentence between 14 days to 2 years can be suspended for between 6 months and 2 years
Why would a court impose a suspended sentence?
If it decides that the custody threshold is met, but there are circumstances which justify suspension - e.g. caring obligations.
What are the four options a court must impose if a defendant has breached a suspended sentence in its operational period?
(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
What is the threshold for a community order?
The offence, or combination of offences, was serious enough to warrant the making of a community order.
What happens if a community sentence is breached?
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.
When does the court consider a Newton hearing?
(i) D has pled guilty; but
(ii) D has pled guilty on materially different facts which affect the sentencing category
What happens at a Newton hearing?
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.
