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Legal Studies > Sentencing and Punishment > Flashcards

Sentencing and Punishment Flashcards

1
Q

What is a sentencing hearing?

A

A hearing following a finding of guilt in which a magistrate or judge will determine the sentence to be given to the accused

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2
Q

What Act is the primary source of sentencing law in NSW?

A

The Crimes (Sentencing Procedure) Act 1999 (NSW)

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3
Q

What is maximum penalty?

A

The maximum sentence set out available to a court to impose for an offence; rarely handed down

Set by Parliament

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4
Q

What is Judicial Discretion?

A

The power of a judge or magistrate to make a decision within a range of possibilities based on the particular circumstances of a case

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5
Q

What is Mandatory Sentencing?

A

REMOVAL OF JUDICIAL DISCRETION BY LEGISLATON by setting a mandatory sentence for a particular offence

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6
Q

What are the 4 main purposes of sentencing?

A
  • Detterence
  • Retribution
  • Rehabilitation
  • Incapacitation
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7
Q

What is a Detterent

A

Something that dicourages or is intented to discourage someone from doing something

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8
Q

What are the 2 types of Deterrence?

A
  1. General
  2. Specific
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9
Q

Define Specific Deterence

A

Punishment against an individual offender aiming to deter them from committing crime in the future by showing ‘crime does not pay’

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10
Q

Define General Deterrence

A

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.

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11
Q

Define Retribution

A

Punishment considered to be morally right or deserved because of the nature of the crime

Its all about revenge or getting even

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12
Q

Define Incapcitation

A

Making and offender incapable of committing further offences by restricting freedom

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13
Q

Define Recidivism

A

Habitual or repeated acts of criminal behaviour after having undergone treatment or punishment to deter such behaviour

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14
Q

What are Aggravating Factors?

A

Circumstances that make the offence more serious and can lead to an increased sentence

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15
Q

What are Mitigating Factors?

A

Circumstances that make the offence less severe and can lead to a reduced sentence

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16
Q

What factors must a judge consider in a case?

(In THIS module, there are 6)

A
  • 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
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17
Q

What is a Victim Impact Statement?

A

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

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18
Q

Define Gratuitious Violence

A

Excessive violence carried out without reason, cause or excuse. Doing crime for ‘the fun of it’

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19
Q

When can courts impose maximum sentencing?

A

When no other alternative punishment is deemed appropriate

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20
Q

What are the 3 types of Appeals?

A
  1. Appeal against conviction
  2. Appeal against a sentence
  3. All grounds appeal
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21
Q

How are Victim’s rights considered in the appeal process?

A

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

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22
Q

What is the term when Prosecution appeals on the grounds that the sentence was too lenient?

A

Sentence is “manifestly inadeqaute”

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23
Q

What is an appeal against conviction?

A

An appeal where the appellent argues that they did not commit the offence of which they were found guilty

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24
Q

What is an appeal against a sentence?

A

An appeal against the severity or leniency of a sentence

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25
Q

What is a Caution?

A

A formal warning without charge issued by police for less serious offences

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26
Q

Why are Cautions used?

A

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

27
Q

What are characteristics of Cautions?

A
  • 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
28
Q

What is a Criminal Infrigement Notice?

A

A notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine

29
Q

Why are CINs used?

A

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

30
Q

What is Conviction or No Conviction recorded?

A

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

31
Q

Define Fine

A

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

32
Q

Define Penalty Units

A

A specified unit of money used in legislation to describe the fine payable, currently $110 in NSW

33
Q

What is Forfeiture of Assets?

A

Loss of rights to property or assets as penalty for wrongdoing

34
Q

Define Proceeds of Crime

A

Assets obtained by an offender through their criminal activities

35
Q

When is forfeiture used?

A

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

36
Q

Define Bond

NO LONGER A STANDALONE PENALTY

A

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

37
Q

Define Probation

A

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

38
Q

Define Home Detention

A

An imprisonment sentence where the offender is the confined to their home under certain conditions of monitoring

39
Q

Define Community Service Order

A

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

40
Q

What must the judicial officer announce when handing down a sentence of imprisonment?

A

The total sentence as well as a non-parole period

41
Q

What is stated in terms of sentences for each offence?

A

Sentences for each different offence will be served at the same time. If on remand, this time will be taken into consideration

42
Q

Define Non-Parole Period

A

A period of imprisioment during which parole cannot be granted

43
Q

Define Parole

A

The release of a prisoner before the expiry of an imprisonment term, temporarily or permanently, on the promise of good behaviour

44
Q

Most lenient sentencing option for less serious offences

What is an CRO?

A

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

45
Q

What is an CCO?

A

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

46
Q

Most serious sentence that can be served in the community

What is an ICO?

A

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

47
Q

What are examples of diversionary programs?

A
  • Traffic Offenders Intervention Program (TOIP) in NSW
  • Magistrate’s Early Refferal Into Treatment Program (MERIT)
  • Drug Court
48
Q

What are similarities between DPs and AMoS?

A
  • Main objective is still rehabilitation
  • Needs offender to take resposibility
  • Only applies to specific offences
  • Resource efficient in terms of cost
49
Q

What differences are there between DPs and AMoS?

A
  • 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
50
Q

Define Restorative Justice

A

Involves a voluntary conference between the offender and the victim of the crime

51
Q

Define Circle Sentencing

A

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

52
Q

What are benefits of circle sentencing?

A
  • Breaks the cycle of reoffending
  • Easy understanding
  • Holistic approach
  • Racial bias reduced
  • Victim and offender participation
  • Away from court rooms
53
Q

What are criticisms for Circle Sentencing?

A
  • Offenders have to plead guilty
  • Data shows not significant improvement in recidivism compared to courts
54
Q

What are the Security Classifications?

A
  • Minimum Security
  • Medium Security
  • Maximum Security
55
Q

Define Protective Custody

A

Security provided in NSW correctional centres to offenders who are vulnerable to attack from other prisoners

56
Q

Define Preventative Detention

Violates the right to freedom from arbitary detention

A

The imprisonment of a person for some type of future harm that they may commit, without them having committed an offence

57
Q

What are the 2 types of Preventative Detention?

A
  1. Post-sentence preventative detention
  2. Preventative detention without charge
58
Q

What is Post-sentence detention?

A

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

59
Q

What is Preventative Detention without charge?

A

Like the name and can occur at any time. E.g 14 day custody

60
Q

What is the main aim of parole?

A

To incentivise rehabilitation for the offender and reduce recidivtism

61
Q

List types of penalties

A
  • Caution
  • CIN
  • Conviction/No Conviction recorded
  • Fines
  • Forfeiture of Assets
  • Imprisonment
62
Q

List non-standalone penalties

A
  • Bond
  • Probation
  • Community Service Order
  • Home Detention
63
Q
A

Legal Studies (11 decks)

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