sentencing and punishment

Question 1

what are statutory guidelines for sentencing and punishment?

Answer 1

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)

Question 2

what are the judicial guidelines for sentencing and punishment?

Answer 2

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

Question 3

what is mandatory sentencing?

Answer 3

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

Question 4

what are the four purposes of punishment?

Answer 4

• deterrence (specific/general)
• retribution
• rehabilitation
• incapacitation

Question 5

what is deterrence as a punishment for crime?

Answer 5

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

Question 6

what is retribution as a punishment for crime?

Answer 6

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

Question 7

what is rehabilitation as a punishment for crime?

Answer 7

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

Question 8

what is incapacitation as a punishment for crime?

Answer 8

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

Question 9

what are aggravating factors?

Answer 9

aggravating factors are circumstances that make the offence more serious and can lead to an increased sentence

Question 10

what are some examples of aggravating factors?

Answer 10

• 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

Question 11

what are mitigating factors?

Answer 11

mitigating factors are circumstances that make the offence less severe and can lead to a reduced sentence

Question 12

what are some examples of mitigating factors?

Answer 12

• 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

Question 13

what is the role of the victim in sentencing?

Answer 13

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)

Question 14

what is a victim impact statement (VIS)?

Answer 14

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

Question 15

what are appeals?

Answer 15

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

Question 16

what are the two types of appeals?

Answer 16

• 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

Question 17

what are the potential penalties that can be inflicted for crimes?

Answer 17

• 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

Question 18

what are cautions as penalties?

Answer 18

cautions are formal warnings issued by police prior to charge for less serious offences

Question 19

what are criminal infringement notices as penalties?

Answer 19

criminal infringement notices are notices issued by police alleging a criminal infringement and requiring a payment of a fine

Question 20

what are convictions or no convictions recorded as penalties?

Answer 20

convictions or no convictions recorded refers to whether or not a judicial officer decides to impose a conviction on an offender in sentencing

Question 21

what are fines as penalties?

Answer 21

fines are the most common sentencing option in Australia, and are monetary penalties imposed on relatively mild offences

Question 22

what is a forfeiture of assets as a penalty?

Answer 22

a forfeiture of assets requires an offender to give up money or property that they may have obtained through criminal activities

Question 23

what are bonds as penalties?

Answer 23

good behaviour bonds are formal requirements of offenders to remain on good behaviour for a set amount of time, and have since been abolished and replaced by Conditional Release Orders (CROs)

Question 24

what are Conditional Release Orders (CROs) as penalties?

Answer 24

Conditional Release Orders (CROs) are orders requiring an offender to accept compulsory restrictions for up to two years, during which time they must undertake to regularly report to and obey directions from their community corrections officer

Question 25

what are suspended sentences as penalties?

Answer 25

suspended sentences are sentences of imprisonment imposed but suspended on the condition of good behaviour by an offender

Question 26

what are community service orders as penalties?

Answer 26

community service orders are requirements of offenders to perform compulsory supervised work in the community, and have since been abolished and replaced by Community Corrections Orders (CCOs)

Question 27

what are Community Corrections Orders (CCOs) as penalties?

Answer 27

Community Corrections Orders (CCOs) are penalties that can be imposed by the court involving compulsory supervised work in the community, supervision by community corrections officers and curfews

Question 28

what is imprisonment as a penalty?

Answer 28

imprisonment is the most severe sentence that can be imposed in Australia and is considered a last resort, by depriving a person of their liberty and removing them from the community

Question 29

what is home detention as a penalty?

Answer 29

home detention is an order requiring an offender to not leave their own house, and has since been abolished

Question 30

what are Intensive Correction Orders (ICOs) as penalties?

Answer 30

Intensive Correction Orders (ICOs) have replaced periodic detention, where offenders serve a period of time each week or month in prison, rather than the full period of a sentence

Question 31

what are diversionary programs as penalties?

Answer 31

diversionary programs are court programs set up to divert certain offenders from more traditional criminal processes in the hope that they can be rehabilitated and encouraged not to reoffend

Question 32

what are examples of alternative methods of sentencing?

Answer 32

• circle sentencing
• restorative justice
• the Drug Court

Question 33

what is circle sentencing?

Answer 33

circle sentencing is an alternative method of sentencing adult indigenous Australians, designed for repeat offenders and those who have committed more serious crimes, involving sentencing being conducted in a circle made up of local community members and a magistrate

Question 34

what is restorative justice?

Answer 34

restorative justice is an alternative method of sentencing that involves a voluntary conference between the offender and the victim, thus giving a voice to the victim regarding the impact of the crime on them and giving the offender the opportunity to take accountability for their actions

Question 35

what is the Drug Court?

Answer 35

the Drug Court is an alternative court that offenders of drug-related crimes can be sentenced in, in which, rather than being placed in incapacitation, they are put into a rehabilitation program in which they must consistently report back to the Drug Court

Question 36

what are post-sentencing considerations?

Answer 36

post-sentencing considerations are the conditions that offenders must comply if sentenced to a community-based or non-custodial sentence

Question 37

what are security classifications as a post-sentencing consideration?

Answer 37

security classifications are the levels of danger that offenders are placed into, depending on their sentence and other factors, that define the type of correctional centre they will be placed into; the three security classifications are maximum, medium and minimum

Question 38

what is protective custody as a post-sentencing consideration?

Answer 38

protective custody is a system put in place in correctional centres for offenders who are vulnerable to attack from other prisoners, such as those who committed offences against children, or people such as police officers or politicians

Question 39

what is parole as a post-sentencing consideration?

Answer 39

parole is the conditional release of a prisoner from custody after the minimum term of the sentence, with the aim of giving the prisoner the incentive for rehabilitation

Question 40

what is preventative and continued detention as a post-sentencing consideration?

Answer 40

preventative detention is the concept of keeping a person in custody, even though they have not committed any offence, to prevent some future harm that they may commit; continued detention is the concept of ongoing detention of a person who has already served the full sentence for their offence

Question 41

what is the sexual offenders registration as a post-sentencing consideration?

Answer 41

the sexual offenders registration is a web-based system designed to assist police with registering and case management of those who have committed sexual offences against children

Question 42

what is deportation as a post-sentencing consideration?

Answer 42

deportation is the forcible removal from Australia, generally used for migrants living in Australia who is not a citizen; people may not be deported if tried for a criminal offence, and will be placed into Australian prisons until their release, upon which they will be deported

Question 43

what are some acts of legislation that relate to sentencing and punishment?

Answer 43

• Crimes (Sentencing Procedure) Act 1999 (NSW) - sets out principles for courts in terms of sentencing, along with sentences that can be imposed
• Bail Act 2013 (NSW) - outlines the circumstances in which a person accused of a crime can be granted bail
• Crimes (Appeal and Review) Act 2001 (NSW) - sets out the procedures for appealing or reviewing a criminal conviction or sentence

Question 44

what are some cases that relate to sentencing and punishment?

Answer 44

• R v Hughes (2018) - early guilty plea
• R v Silva (2015) - aggravating/mitigating factors
• R v Loveridge (2014) - mandatory sentencing
• R v Way (2004) - mandatory life sentencing without parole
• R v Skaf (2004) - parole

Question 45

what are some media articles that relate to sentencing and punishment?

Answer 45

• “NSW’s fourth drug court opens in Dubbo as a way to break drug dependency” (2023), Zaarkacha Marlan, ABC News
• “Man found guilty of killing pregnant teen for a second time in two years” (2022), Latine Clark, 9 News

Question 46

what are some statistics that relate to sentencing and punishment?

Answer 46

Bureau of Crime Statistics and Research (BOCSAR):
* use of drug courts has reduced short-term and long-term reoffending by 17%
* 10% increase in offenders sentenced to imprisonment from June 2020-2021
* 17% increase in offenders given Community Corrections Orders (CCOs) from June 2020-2021
* 21% decrease in offenders given suspended sentences from June 2020-2021
* being released on parole reduces likelihood of reoffending in the next 12 months by 10%