Sentencing and Punishment Flashcards
What is a sentencing hearing?
A hearing following a finding of guilt in which a magistrate or judge will determine the sentence to be given to the accused
What Act is the primary source of sentencing law in NSW?
The Crimes (Sentencing Procedure) Act 1999 (NSW)
What is maximum penalty?
The maximum sentence set out available to a court to impose for an offence; rarely handed down
Set by Parliament
What is Judicial Discretion?
The power of a judge or magistrate to make a decision within a range of possibilities based on the particular circumstances of a case
What is Mandatory Sentencing?
REMOVAL OF JUDICIAL DISCRETION BY LEGISLATON by setting a mandatory sentence for a particular offence
What are the 4 main purposes of sentencing?
- Detterence
- Retribution
- Rehabilitation
- Incapacitation
What is a Detterent
Something that dicourages or is intented to discourage someone from doing something
What are the 2 types of Deterrence?
- General
- Specific
Define Specific Deterence
Punishment against an individual offender aiming to deter them from committing crime in the future by showing ‘crime does not pay’
Define General Deterrence
Punishment attempting to make an example of an offender in order to send a message to the rest of the community that the law is serious about punishing people for this offence.
Define Retribution
Punishment considered to be morally right or deserved because of the nature of the crime
Its all about revenge or getting even
Define Incapcitation
Making and offender incapable of committing further offences by restricting freedom
Define Recidivism
Habitual or repeated acts of criminal behaviour after having undergone treatment or punishment to deter such behaviour
What are Aggravating Factors?
Circumstances that make the offence more serious and can lead to an increased sentence
What are Mitigating Factors?
Circumstances that make the offence less severe and can lead to a reduced sentence
What factors must a judge consider in a case?
(In THIS module, there are 6)
- Aggravating Factors
- Mitigating Factors
- Objective and Subjective Factors
- Whether the accused pleaded guilty
- Whether or not the offender assisted law enforcement agenecies
- Victim Impact Statement
What is a Victim Impact Statement?
A statement written by the victim or victim’s family about the impact the crime has had on them, heard at the time of sentencing
Define Gratuitious Violence
Excessive violence carried out without reason, cause or excuse. Doing crime for ‘the fun of it’
When can courts impose maximum sentencing?
When no other alternative punishment is deemed appropriate
What are the 3 types of Appeals?
- Appeal against conviction
- Appeal against a sentence
- All grounds appeal
How are Victim’s rights considered in the appeal process?
They are notified once a Notice of Intention to Appeal is lodged as well as a Notice of Appeal. The NOA provides information such as the date of the court hearing
What is the term when Prosecution appeals on the grounds that the sentence was too lenient?
Sentence is “manifestly inadeqaute”
What is an appeal against conviction?
An appeal where the appellent argues that they did not commit the offence of which they were found guilty
What is an appeal against a sentence?
An appeal against the severity or leniency of a sentence
What is a Caution?
A formal warning without charge issued by police for less serious offences
Why are Cautions used?
For less serious offences as a way to avoid the court system in the hope that the offender has learnt alesson and will not reoffend
e.g. people aged 10-18 for minor offences such as stealing or Canabis Caution Scheme NSW
What are characteristics of Cautions?
- For minor offences
- Only issued when offence is admitted to in the prescence of appropriate adult
- Involves formal conference disccusing implications of offence
- Kept on police record
What is a Criminal Infrigement Notice?
A notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine
Why are CINs used?
To remove the burden on the criminal court system by allowing police to just issue fines for minor offences
No convictions recorded
E.g. larcency of goods under $300, obstruction of traffic, offensive behaviour
What is Conviction or No Conviction recorded?
In sentecning, the judicial officer can record the conviction agaisnt the offender, or pass the sentence with no conviction recorded.
People have to clarify convictions many times in life, so big impact
For less serious offences particualry where YO are involved or first time offenders
Define Fine
A monetary penalty imposed for infringement of a law
Most common form of penalty
Used for less serious offences or for serious offence where used in conjucntion with other forms of punishment
Define Penalty Units
A specified unit of money used in legislation to describe the fine payable, currently $110 in NSW
What is Forfeiture of Assets?
Loss of rights to property or assets as penalty for wrongdoing
Define Proceeds of Crime
Assets obtained by an offender through their criminal activities
When is forfeiture used?
When simply sentencing the offender will not be enough to deter them from reoffending, especially if the offender can still enjoy the benefits of their criminal acts
Define Bond
NO LONGER A STANDALONE PENALTY
A compulsory condition imposed on an offender for a period of time, which the offender undertakes to comply with e.g. a good behaviour bond
Define Probation
A type of good behaviour bond where the offender is released on condition of good behaviour but placed under some form of supervision, such as daily reporting to a probation officer
Examples include CCOs, CROs and ICOs
Define Home Detention
An imprisonment sentence where the offender is the confined to their home under certain conditions of monitoring
Define Community Service Order
A penalty where the offender is sentenced to serve specified hours of work in the community
No longer standalone but can form part of a CCO
What must the judicial officer announce when handing down a sentence of imprisonment?
The total sentence as well as a non-parole period
What is stated in terms of sentences for each offence?
Sentences for each different offence will be served at the same time. If on remand, this time will be taken into consideration
Define Non-Parole Period
A period of imprisioment during which parole cannot be granted
Define Parole
The release of a prisoner before the expiry of an imprisonment term, temporarily or permanently, on the promise of good behaviour
Most lenient sentencing option for less serious offences
What is an CRO?
Conditional Release Order
It can be in place for up to 2 years and has 2 options of either conditions with recorded conviction or no recorded conviction
What is an CCO?
Community Corrections Order
* Offences where a CRO or fine is too lenient but prison too harsh
* Criminal conviction with conditions that must be complied with
* Can be tailored to match the offender and the offence
* Can be imposed for up to 3 years
Most serious sentence that can be served in the community
What is an ICO?
Intensive Corrections Order (ICO)
* A sentence of imprisonment with a criminal convixtion where prison is not involved, instead you remain in the community with certain conditions
* Supervision is mandatory
* Not available for serious crimes
What are examples of diversionary programs?
- Traffic Offenders Intervention Program (TOIP) in NSW
- Magistrate’s Early Refferal Into Treatment Program (MERIT)
- Drug Court
What are similarities between DPs and AMoS?
- Main objective is still rehabilitation
- Needs offender to take resposibility
- Only applies to specific offences
- Resource efficient in terms of cost
What differences are there between DPs and AMoS?
- DPs are court based where AMS does not necessarily involve courts but some have power of them
- DP involves targetting specific offences where AMS might be much broader in the final peanlty
Define Restorative Justice
Involves a voluntary conference between the offender and the victim of the crime
Define Circle Sentencing
A form of sentencing for some adult Indigenous offenders where sentecing is conducted in a circle made up of local community members and a magistrate
What are benefits of circle sentencing?
- Breaks the cycle of reoffending
- Easy understanding
- Holistic approach
- Racial bias reduced
- Victim and offender participation
- Away from court rooms
What are criticisms for Circle Sentencing?
- Offenders have to plead guilty
- Data shows not significant improvement in recidivism compared to courts
What are the Security Classifications?
- Minimum Security
- Medium Security
- Maximum Security
Define Protective Custody
Security provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoners
Define Preventative Detention
Violates the right to freedom from arbitary detention
The imprisonment of a person for some type of future harm that they may commit, without them having committed an offence
What are the 2 types of Preventative Detention?
- Post-sentence preventative detention
- Preventative detention without charge
What is Post-sentence detention?
Occurs when a person has already been sentenced and served that sentence
Example: Crimes (Serious Sex Offenders) Act 2006 allows for the continued detention of offenders serving a sentence for a serious sexual offence
What is Preventative Detention without charge?
Like the name and can occur at any time. E.g 14 day custody
What is the main aim of parole?
To incentivise rehabilitation for the offender and reduce recidivtism
List types of penalties
- Caution
- CIN
- Conviction/No Conviction recorded
- Fines
- Forfeiture of Assets
- Imprisonment
List non-standalone penalties
- Bond
- Probation
- Community Service Order
- Home Detention
