Sentencing

Question 1

Section 3A: Purposes of Sentencing

Answer 1

1. Punishment (retribution)
2. Deterrence
3. Protect Community
4. Rehabilitation
5. Accountability
6. Denouncing Conduct
7. Recognise Harm to Victim and Community

Question 2

Principles of Sentencing

Answer 2

Proportionality: need relationship between gravity of offence and penalty imposed.
Parity: fairness (dealing with things in the like manner of the things)(e.g. co-accused).

Question 3

Section 4: Evidence and Sentencing

Answer 3

• Rules of Evidence do not usually apply in sentencing BUT if the court directs, then section 4 (1) of the Evidence Act apply.
  (2): If such a proceeding relates to sentencing:
  A. This act applies only if the court directs that the law of evidence applies in proceeding, and
  B. If the court specifies in the direction that the law of evidence applies in relation to specified matters - the direction has effect accordingly

Question 4

What is a plea of Guilty?

Answer 4

R v O’Neill:
“… a plea of guilty in itself arrives with it an admission of the essential legal ingredients of the offence and no more”

Question 5

When is the Court obliged to accept a plea of guilty?

Answer 5

Meissen v The Queen:
‘A court will accept a plea of guilty by a person of full age, sound mind and understanding, provided that 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’.

Question 6

Withdrawing a Plea of Guilty

Answer 6

Court has the power to allow a PG to be withdrawn at any time before sentence (s207 CP).
R v Boag:
- court found that the DEF had been given more favourable advice by his second counsel - insufficient to w/d plea.
- Need to show PG was NOT attributable to a genuine consciousness of guilty.
- Need to show miscarriage of justice
- If plea entered in circumstances affecting its integrity as an admission of guilt, court should readily grant leave.
- Court look at the high public interest in finality of legal proceedings,

Question 7

Aggravating & Mitigating Circumstances: Balance of Proof

Answer 7

Aggravation: Prosecution to prove Beyond Reasonable Doubt
Mitigation: Defence to prove on balance of probability
R v Storey

Question 8

Di Simoni Principle

Answer 8

The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any act or rule to do so.

Question 9

Section 10: Dismissal of Charges and Conditional Discharge of Offender

Answer 9

Section 10(1)(a): non conviction and dismissal
Section 10(1)(b): non conviction and CRO (not exceeding 2 yrs)
Section 10(1)(c): non conviction and intervention program

Question 10

CRO

Answer 10

Section 9

- Can either be recorded as a non-conviction OR conviction recorded.

Question 11

CRO CONDITIONS

Answer 11

1. Standard
   - Not commit any offence
   - Must appear before the court if called
2. Additional
   - May limit the period
   - rehab, abstention, non-association, place restriction, supervision
3. Further
   - May impose any condition at all which it considers appropriate in circumstances

Question 12

CCO

Answer 12

Section 8:

• non-custodial order
• Always carry a conviction
• Only where imprisonment is available
• Can get a fine AND a CCO
• Max time is 3yrs
• Difference between CRO and CCO is that you can have a CURFEW for a condition, always carry’s a conviction, can give a fine AND the CCO but not with CRO.

Question 13

CCO CONDITIONS

Answer 13

1. Standard
   - Not commit any offence
   - Must appear before the court if called on to do so
2. Additional
   - may limit the period
   - CURFEW, Community Service Work Condition (CSWC), rehab, abstention, non-association, place restriction, supervision.
3. Further
   - may impose any condition at all which it considers appropriate in circumstances

Question 14

ICO

Answer 14

Section 7: a court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community

• A assessment report is required
• Less than 2 yrs
• Supervision is mandatory

Question 15

ICO CONDITIONS

Answer 15

1. Standard
   - Not commit any offence
   - Submit to supervision by a CCO
2. Additional (at least one additional)
   - Home Detention, Electronic monitoring condition, curfew, community service, rehab, abstention, non-association, place restriction
3. Further Condition
   - Any conditions at all which it considers appropriate in circumstances

Question 16

What are the mandatory conditions for CRO/CCO/ICO?

Answer 16

CRO: must appear b4 court/not commit any offence
CCO: must appear b4 court/not commit any offence
ICO: Not commit any offence

Question 17

What are the condition difference between CRO/CCO/ICO?

Answer 17

CRO: supervision/place restriction/alcohol or drug abstention/program treatment/non-association
CCO: PLUS Community Service Work/Supervision
ICO: PLUS Home Detention/Electronic Monitoring

Question 18

Section 5: Imprisonment

Answer 18

• Court cannot impose unless it has considered all possible alternatives and no other penalty is appropriate
• Section 44: the Non parole period is set, then the parole period specified which must not exceed 1/3 of the non-parole period unless special circumstances exist

Question 19

Section 43: Correcting Errors

Answer 19

• Court may re-open proceedings to correct sentencing errors
  1. Either the court has imposed a sentence that is contrary to the law or
  2. The court has failed to impose a penalty that is required to be imposed by law

Question 20

Community Service Hours

Answer 20

• 100 hours: for when max term of prison does not exceed 6 months
• 200 hours: for when max term of prison does not exceed 1 yr but more than 6 months
• 500 hours: exceeds 1 yr for a CCO
• 750 hours: exceeds 1yr for a ICO