Sentencing Flashcards
What does R v O’Neill state?
A plea of guilty in itself carries with it an admission of the essential legal ingredients of the offence and no more. (It does not mean that they agree with the facts)
What does Meisser v The Queen discuss?
A person will accept a plea of guilty by a person of full age, sound mind and understanding provided the plea is an exercise of free choice in that person’s interests, even if that person is not in truth guilty of the offence.
What does Maxwell v R discuss?
If the Court forms the view the charge is unsupportable it should advise accused to withdraw his/her plea. However the Court cannot compel an accused to do so.
How does s 4 of the Evidence Act relate to sentencing?
Rules of evidence do not usually apply in sentencing proceedings, but if the Court directs so, then they can apply, as per s 4(1) and 4(2) of the Evidence Act
What does proportionality in sentencing mean?
There needs to be a relationship between gravity of offence and penalty imposed
What does Parity mean in sentencing?
Like offences, factual matrix and circumstances of the accused should get similar sentences. Co-acc should get similar sentences even if one is in children’s court.
What are the purposes of sentencing outlined in S3A of the Crimes (Sentencing Procedures) Act?
- Punishment (retribution)
- Deterrence
- Protect community
- Rehabilitation
- Accountability
- Denouncing conduct
- Recognising harm to victim and community
On what basis can someone withdraw a plea of guilty? What do they need to show the Court?
That a miscarriage of justice occurred. They need to show that the plea of guilty was not attributable to a genuine consciousness of guilt.
What does Maxwell v R state about the prosecution seeking to withdraw a plea of guilty from an accused?
With the Court’s leave an application can be made, but it is unlikely to be successful where the accused has prejudiced him or herself because of the prosecution’s acceptable of the plea.
To what standard does the prosecution have to prove circumstance of aggravation?
R v Storey - beyond reasonable doubt
To what standard does the defence have to prove circumstances of mitigation?
R v Storey - the balance of probabilities
What section outlines the circumstances of aggravation?
S 21A(2)
What section outlines the circumstances of mitigation?
S 21A(3)
What is the Di Simoni Principle?
No one should be punished for an offence of which he or she has not been convicted. The facts should not refer to things that they have not been charged with. Things that would usually aggravate the offence should be charged appropriately.
What are 6 circumstances of aggravation?
- Offence arose because of victim’s occupation
- Motivated by hatred
- Without regard for public safety
- Financial gain
- Organised criminal activity
- Victim was vulnerable
What are 6 circumstances of mitigation?
- Under duress
- Shown remorse
- Good character
- Unlikely to reoffend
- Good prospect of rehabilitation
- Assisted law enforcement
Under s 22 what must the court take into account?
A plea of guilty must be taken into account, however it may impose a lesser sentence .
What is a s 10 (1) (a)
A non conviction dismissal
What is a s 10(1)(b) - 9(1) (b)
Non conviction and CRO. Cannot be for more than 2 years and cannot give a fine.
What are the CRO conditions and what sections of the Act cover them?
Standard conditions under s 98
Additional conditions under s 99 (may be added)
What is a s 10A
A conviction recorded only and no penalty
Does the imposition of a fine record a convictions?
Yes.
What is a s 10(1) (c)
Non conviction and intervention program
What section does a CCO come under?
Section 8
What is a CCO
A community corrections order
What are the conditions of a CCO?
Standard conditions s 88 and none or any additional under s 89. Cannot impose more than 500 hours of community service.
Cannot be for longer than 3 years. Always carries a conviction.
What is a s 11 ‘Griffiths Remand’?
An adjournment by the defence to allow treatment. Can only be done for a max of 12 months.
What section/threshold must be crossed for imprisonment/ICO to be considered?
section 5 threshold.
What is an ICO?
An intensive corrections order
What conditions apply to an ICO?
Standard conditions under s 73 and at least one additional condition under s 73A.
Must be less than 750 hours comm service.
Supervision is mandatory.
Must be less than 2 years.
What must the court consider before full time custody?
Cannot be imposed unless it has considered all possible alternatives and no other penalty is appropriate.
Under what section may the Court re-open proceedings to correct an error?
S 43 but it must be that the sentence given was contrary to law.
When may the prosecution appeal a sentence?
If the sentence imposed is considered manifestly inadequate.
What penalty must be considered in DV offences and what section mandates this?
S4A states that there is a presumption of imprisonment and the magistrate must state reasons why if they do not.
The court must also consider the safety of the victim before making a CCO or CRO for a DV offence.
What type of offences can a victim impact statement be tendered?
T1
What are guideline judgments
Types of cases that parliament deemed warrant a certain penalty. Such as drink driving offences should very rarely be subject of s 10’s.
