sentencing and punishment Flashcards
what are statutory guidelines for sentencing and punishment?
statutory guidelines for sentencing and punishment refer to previously implemented acts of parliament that judges and magistrates are required to reference when making a call about which sentence should be imposed on a criminal; typically the source of sentencing law in NSW is the Crimes (Sentencing Procedure) Act 1999 (NSW)
what are the judicial guidelines for sentencing and punishment?
judicial guidelines for sentencing and punishment refer to the concept of judicial discretion, in which judges and magistrates have the ability to analyse the specific circumstances of a case in order to decide on a sentence
what is mandatory sentencing?
mandatory sentencing is imposed on certain offences, and is an automatic sentence set by parliament that must be imposed by a judge or magistrate if a person is found guilty on that crime; mandatory sentencing removes judicial discretion by legislation, creating a potential flaw in its existence
what are the four purposes of punishment?
- deterrence (specific/general)
- retribution
- rehabilitation
- incapacitation
what is deterrence as a punishment for crime?
deterrence is the concept of discouraging crime through instilling fear of the consequences; there is general deterrence- which attempts to make an example out of an offender in order to send a message to the rest of the community about the repercussions for the crime- and specific deterrence- which is against a specific offender in an attempt to deter them from committing the crime in the future
what is retribution as a punishment for crime?
retribution refers to punishment to be considered morally right or deserved based on the nature of the crime, having a range of purposes, but assuming that some good comes from inflicting hardship on an offender for their crime
what is rehabilitation as a punishment for crime?
rehabilitation is considered in almost all cases, as it holds the purpose of discouraging future crime from the offender, but does so by attempting to alter the views of the offender; the main aim of rehabilitation is to prevent recidivism by helping offenders to not return to the same patterns of behaviour that led them to offend in the first place
what is incapacitation as a punishment for crime?
incapacitation aims to protect the community from the offender, by making the offender incapable of reoffending; incapacitation restricts the offender’s freedom in an attempt to prevent reoffending
what are aggravating factors?
aggravating factors are circumstances that make the offence more serious and can lead to an increased sentence
what are some examples of aggravating factors?
- offence - if the offence involved any violence, cruelty or weapons; if it caused any injury; if it was motivated by any hatred or prejudice; or if it was committed in company or involved some type of organised crime
- victim - if the victim was vulnerable or targeted for their occupation, or if there were multiple victims
- offender - if the offender abused a position of trust or authority when committing the offence, or if the offender has any prior convictions
what are mitigating factors?
mitigating factors are circumstances that make the offence less severe and can lead to a reduced sentence
what are some examples of mitigating factors?
- good character - if the offender has positive character references, such as from employers or teachers
- age - if the offender is youthful or inexperienced and was easily led
- remorse - if the offender has shown deep regret for their actions, such as by compensating or apologising to the victim, or has good prospects of rehabilitation and is considered unlikely to reoffend
what is the role of the victim in sentencing?
victims can refer to either a person who was directly impacted by the crime, such as in assault, or somebody who was indirectly impacted by the crime, such as the family of a homicide victim; victims can be involved in the criminal trial process through reporting a crime, testifying at a trial, or submitting a victim impact statement (VIS)
what is a victim impact statement (VIS)?
a victim impact statement (VIS) is a voluntary statement written by the victim about the impact that the crime had on them; they are reserved for the most serious offences involving violence, harm or death to a victim
what are appeals?
appeals are applications from people convicted of an offence to a higher court for review of one or more of the decisions made in the lower court, or from The Crown in instances in which, for example, they believe the sentence is too lenient
what are the two types of appeals?
- appeal against conviction - an appeal where the appellant argues that they did not commit the offence of which they are being found guilty
- sentence appeal - an appeal against the severity or leniency of a sentence
what are the potential penalties that can be inflicted for crimes?
- caution
- criminal infringement notice
- conviction or no conviction recorded
- fines
- forfeiture of assets
- bond
- Conditional Release Order (CRO)
- suspended sentence
- community service order
- Community Correction Order (CCO)
- imprisonment
- home detention
- Intensive Correction Order (ICO)
- diversionary program
what are cautions as penalties?
cautions are formal warnings issued by police prior to charge for less serious offences