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Yr12 Legal Studies > Sentencing and Punishment > Flashcards

Sentencing and Punishment Flashcards

1
Q

What is the primary source of sentencing law in NSW

A
  • The Crimes (Sentencing Procedure) Act 1999 (NSW)
  • this sets out the purposes:
  • For which a sentence may be imposed
  • For the types of penalties that can be imposed
  • For when they can be used as well as a number of factors and guidelines for sentencing generally
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2
Q

What are some guidelines found in the Crimes (Sentencing Procedure) Act 1999 (NSW)

A
  • A court may not impose a prison sentence unless it is satisfied that no other penalty is appropriate
  • Sentences of six months or under must be fixed
  • If the term is over six months, a judge can impose a parole period (i.e. time after which the offender is free to re-enter the community under supervision) and non-parole period (minimum time offender must spend in jail)
  • Minimum non-parole periods for specific offences
  • Mitigating factors (circumstances that make the offence less severe and can lead to reduced sentences) and aggravating factors (circumstances that make the offence more serious and can lead to an increased sentence)
  • Judges can be guided by former judgments where similar facts have arisen, case law will often be cited by the prosecution or defendant in a sentencing hearing., Judgements and sentencing principles can be persuasive (lower court) or binding (higher court)`
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3
Q

Where are most maximum sentences found

A
  • Most maximum penalties are found in the Crimes Act 1900 (NSW) à for example, section 59 of the Crimes Act states that anybody found guilty of assault occasioning actual bodily harm ‘shall be liable to 5 years in prison’
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4
Q

How do judges use maxiumum sentences

A
  • When deciding sentences judges start at the maximum sentence and then work backwards due to other factors
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5
Q

What do maximum sentences reflect

A
  • Maximum sentences reflect how society views the crime i.e. max sentence for homicide is life in prison as that is deemed one of the worst possible crimes that can be committed against another human.
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6
Q

What are guideline judgements

A
  • The legislation in Crimes (Sentencing and Procedure) Act 1999 NSW also allows for the NSW Attorney-General to apply to the Court of Criminal Appeal for guideline judgements on sentencing for particular offences.
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7
Q

Are guidelines binding

A

Yes as guidelines are issued by highest court of criminal jurisdiction in the state its rulings will be binding on lower courts to be used in determining future sentences

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8
Q

What is purpose of guidelines

A
  • Guidelines are intended to be indicative only.
  • They are not intended to be applied to every case as if they were binding rules.
  • They are a mechanism for structuring discretion, rather than restricting discretion
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9
Q

How must judges use judicial discretion with regard to sentencing

A
  • Judges must use their judicial discretion to determine the most appropriate sentence to impose on a case-by-case basis à requires careful balancing of the victim’s interests, the accused’s interests and the community/state’s interests
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10
Q

What is mandatory sentences

A
  • Mandatory sentences are an automatic sentence set by parliament that must be imposed for particular offences
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11
Q

What is exmaple of mandatory sentencing

A
  • January 2014 NSW parliament passed new laws to combat street violence including mandatory minimum sentences for fatal alcohol and drug-fuelled assaults
  • à those convicted of fatal one-punch assaults while intoxicated or on steroids will be subject to the minimum 8-year mandatory jail term. Crimes and other Legislation Amendment (Assault & Intoxication) Act 2014 (NSW)
  • à Law was introduced following community outrage after Thomas Kelly was fatally punched by Kieran Loveridge à mandatory sentencing influences by society’s changing values/ethics
  • Loveridge was found guilty of manslaughter and sentenced to 6 years with a 4-year non-parole period. à It was subsequently found to be manifestly inadequate on appeal and failed to take into account the need for general deterrence, and increased to 10.5 years with a non-parole period of 7 (R v Loveridge 2013)
  • Sentence increased on appeal and not in response to new legislation (legislation cannot be retrospective)
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12
Q

What are arguments against mandatory sentencing

A
  • Reduces the common law principle that ‘punishment should fit the crime’ à The judge must exercise their learned discretion and weigh up the mitigating and aggravating factors to reach a sentence or punishment that fits the crime. à A mandatory minimum sentence of 8 years in prison arguably removes this essential process in sentencing and hence limits just outcomes for the accused
  • SMH article ‘Debate needed to consider ramifications of Mandatory Sentencing’ Nov, 2013, it was proposed that mandatory sentencing may actually reduce the incentive to plead guilty à which will result in additional costs on the justice system and more trauma on victims and their families and witnesses who give evidence at trial
  • Offenders will go to prison for a longer time which itself is costly for society à not resource efficient
  • There is no general deterrence resulting from mandatory sentencing à there will be no effect on people’s behaviour as they will not have the power of reason when heavily intoxicated in any event à high visibility policing (situational crime prevention) has reduced alcohol linked injuries not mandatory sentencing
  • Decision of the Court of Criminal Appeal to increase Loveridge’s sentence from five to 10 years showed mandatory sentencing is not needed ‘Booze-linked injuries fall sharply’ – Sun Herald 6.7.14
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13
Q

What are the purposes of punishment

A
  • Deterrence
  • Retribution
  • Rehabilitation
  • Incapacitaion
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14
Q

What is example of rehabiliation

A
  • Programs such as drug/alcohol rehabilitation, anger management and educational skills or courses à e.g. NSW Drug Court (the Drug Court Act 1998 (NSW)), Four Corners ‘Backing Bourke’
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15
Q

What are factors affecting sentencing decisions

A
  • Maximum penalty
  • Statute and judicial guidelines
  • Purposes of punishment
  • Aggravating circumstances
  • Mitigating circumstances
  • Victim impact statements (VIS)
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16
Q

Which act contains victims rights

A
  • Victims’ Rights and Support Act 2013 (NSW)
  • Act includes charter of victim’s rights à which includes rights, such as:
  • Respect for a victim’s dignity
  • Victim’s compensation
  • Protection from the accused
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17
Q

How are victim impact statements incorporated into sentencing

A
  • The Crimes (Sentencing Procedure) Act 1999 included ‘victim impact statements’ in the sentencing process for serious offences involving violence (actual or threatened) such as aggravated sexual assault.
  • Victim impact statement outlines the full effect of the crime on the victim
  • The weight given to a VIS is matter for the court’s discretion
  • _Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014,_This act amended the Crimes (Sentencing Procedure) Act 1999 to make further provision for the consideration of family member victim impact statements in sentencing in manslaughter and murder cases
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18
Q

What are arguments against VIS

A
  • Can lead to different sentences in cases where victim has died based on whether the victim was more or less loved by his/her family
  • Can be difficult for a victim (or family member if the victim has died) to make a VIS. Also, some victims may not be able to express the impact (may be less educated)
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19
Q

What are arguments for VIS

A
  • Provide an important opportunity for victims to express themselves.
  • If the offender is able to submit personal circumstances in mitigation of their sentence, then the victim’s personal circumstances should also be able to be considered (issue of equality before the law – both victim and accused)
  • Can be a confronting experience for the offender and may assist in rehabilitation of the offender as they hear about the impact of their offending
  • ‘NSW cabinet backs laws to allow family of homicide victims to have say in killer’s sentencing’ SMH 2014
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20
Q

What act outlines sentencing guidelines

A
  • Crimes (Sentencing Procedure) Act 1999 NSW
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21
Q

What are aggravating factors

A

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

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22
Q

What are mitigating factors

A
  • Mitigating factors are circumstances that make the offence less severe and can lead to a reduced sentence
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23
Q
A
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24
Q

What are examples of mitigating circumstances

A
  • The offender is youthful or inexperienced or easily led.
  • The offender pleaded guilty or assisted police
  • The offender has shown honest remorse or has good prospects of rehabilitation and is unlikely to reoffend
  • The offender was provoked or acting under duress (partial defences)
  • The offender is of good character (character references from teachers/employers) or does not have prior convictions.
25
Q

What are two types of appeals

A
  • Appeal against conviction
  • Sentence appeal
26
Q

What is an appeal against conviction

A
  • Appellant argues that they did not commit the offence for which they were found guilty
27
Q

What is an appeal against sentence

A
  • Can be appeals by the offender against the severity of the sentence (manifestly excessive)
  • or by the prosecutor against the leniency of the sentence (manifestly inadequate)
28
Q

Example of appeal case

A

R v Loveridge 2014 (NSWCCA)

29
Q

What are the main types of penalties

A
  • Caution
  • Criminal Infringement notice
  • Conditional Release Order
  • Fine
  • Bond
  • Probation
  • Community Correction Order
  • Home detention
  • Intensive Correction Order
  • Forfeiture of assets
  • Imprisonment
  • Diversionary programs
30
Q

What is a caution

A
  • A caution is a formal warning, issued for less serious offences as a way to avoid the court system
  • Hope offender has learnt lesson and will not reoffend
31
Q

What is a criminal infringement notice

A
  • Introduced in NSW in 2007 (law reform)
  • It allows police to issue on the spot fines for certain offences such as offensive behaviour or language and obstructing traffic.
32
Q

What is a conitional release order

A
  • Replaced ‘no conviction recorded’
  • Most lenient penalty available that a Judge or Magistrate can give for any criminal or traffic offence in NSW
  • Must comply with the conditions laid out in order, failure to do so results in severe penalties
  • Benefit of getting a conditional release order is that offender won’t get a criminal conviction recorded against their name
33
Q

What is a fine

A
  • Most common sentencing option in Australia and applies for less serious offences, e.g. driving offences or breaches of local laws
  • Issued by the police or local law enforcement officers, e.g. council parking officers (responsive, timely, adequate)
  • Maximum fine is set out in legislation and will be based on ‘penalty units’
34
Q

What is a bond

A
  • A bond is a compulsory condition for a period of time, imposed on the offender and the offender agrees to comply with the bond in return for a more lenient sentence
35
Q

What is 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
  • Imposed by the court where there is a higher danger of reoffending but where an order for detention is considered too severe
36
Q

What is a community correction order

A
  • Replaced community service order
  • Community correction order is a type of penalty imposing conditions and a criminal conviction that a Magistrate or Judge in court can give for any NSW criminal or traffic offence.
  • Considered a less serious type of penalty than an intensive correction order (ICO)
  • Requires the offender to not commit any further offences and attend court if called on to do at any time during CCO
  • Additional conditions can be added such as attendance to a rehabilitation program
37
Q

What is home detention

A
  • Used for certain non-violent offences where the offender is sentenced for 18 months or less
  • Offender can apply for home detention and will need to be assessed for suitability
  • Compliance supervised by electronic monitoring and a probation and parole officer monitor the order and conduct random visits
  • Certain conditions may be added e.g. Offender can go to work
38
Q

What is an intensive correction order (ICO)

A
  • Introduced in 2010 under Amendment to the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010(NSW)
  • ICO’s are available for offenders sentenced to a maximum term of 2 years.
  • Involves strict conditions (similar to bail conditions), if breached thye become liable for a full-time custodial sentence.
  • Expanded in Oct 2017, to allow a magistrate or judge to impose more conditions that the previous ICO
39
Q

What is forefeiture of assets

A
  • Where an offender has obtained money/property through their criminal activities, a court may order for it to be recovered in addition to any other form of punishment
  • Covered in Criminal Assets Recovery Act 1990 (NSW).
  • Important in relation to organised crime as sentencing alone is not enough to deter people from committing crime due to financial reasons
40
Q

What is imprisonment

A
  • The most severe sentence and considered a sentence of last resort, as stated in Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Judicial officer must consider the purposes of sentencing as well as all relevant facts of the case
  • If imprisonment is appropriate, a total sentence as well as a non-parole period is announced
  • The non-parole period is the minimum time the offender is kept imprisoned before eligible for release on parole
41
Q

What are the main forms of imprisonment

A
  • Full time imprisonment at a correctional centre or working farm
  • ICO
  • Home detention
42
Q

What are diversionary programs

A
  • Diversionary programs are aimed at diverting certain offenders away from traditional criminal processes in the hope they can be rehabilitated and encouraged not to reoffend
  • Usually involves a magistrate adjourning a case while the offender attends rehabilitation
  • The Drug Court is one of the most important diversionary programs
43
Q

What are the two alternative methods of sentencing

A
  • Circle sentencing
  • Restorative justice
44
Q

What does circle sentencing involve

A
  • CS is based on aboriginal customary law and involves a circle of community members (elders) and a magistrate sitting in a circle to discuss the crime and tailor the most appropriate sentence for the offender. The victim is also included in the circle and the sentencing process
45
Q

What are benefits of circle sentencing

A
  • Has full sentencing powers of the court
  • Accessibility to justice potentially improved as the process is more meaningful and culturally relevant to both victim and offender.
  • Also, the accused must hear from the victim directly, potentially beneficial for victim and offender
  • Youth Koori Court aimed at diverting young Aboriginal and Torres Strait Islanders offenders from prison by diverting youth from the CJS
46
Q

Whaat is restorative justice

A
  • Alternative to traditional sentencing which aims to bring the offender and the victim together
  • Can be confronting and difficult for both parties
  • Voluntary and will usually accompany another form of traditional sentencing. Must admit their guilt
47
Q

What is an example of restorative justice

A
  • The Young Offenders Act 1997 (NSW) (“YOA”) established an alternate regime of dealing with young persons who commit certain offences by diverting them from the Children’s Court. à It provides the legislative framework for the giving of warnings, cautions and youth justice conferences (“YJC”).
  • YJC reduce reoffending by 15-20% and BOCSAR report show victim satisfaction is higher after YJC compared with traditional court process
48
Q

What are main post sentencing considerations

A
  • Security classification
  • Protective custody
  • Parole
  • Preventative detention/continued detention
  • Sexual offenders registration
  • Deportation
49
Q

What are three types of security classification

A
  • Maximum
  • Medium
  • Minimum
50
Q

What is protective custody

A
  • Refers to the need to protect those prisoners who are vulnerable to attack from fellow inmates
  • Prisoners in protective custody are segregated from the mainstream prison population and are isolated in a particular wing of a prison, e.g. child sex offenders and police serving prison terms
  • Prisoners can apply to be put into protective custody if they feel they are in danger, correctional authorities have duty of care for offender’s safety (protection of rights of the offender)
51
Q

What is parole

A
  • Parole refers to the conditional release of a prisoner from custody after the completion of the minimum term of the sentence
  • Aim of parole is to encourage prisoners to make the most of opportunities for rehabilitation
  • When released on parole, the offender is put under direct supervision of a parole officer and the parolee must report to this officer as directed
52
Q

What are two types of preventative detention

A
  • Preventative detention without charge
  • Post sentence preventative detention
53
Q

What is preventative detention without charge

A
  • Introduced due to ‘war on terror’ since 2001
  • Part 2A of the Terrorism (Police Powers) Act 2002 NSW empowers police to detain a person, without charge, for a period of up to 14 days to prevent a terrorist attack or to preserve evidence relating to such an attack.
54
Q

What is post sentence preventative detention

A
  • under the Crimes (High Risk Offenders) Act 2006 (NSW) that allows for the continued detention of offenders serving a sentence for a serious sexual offence. The Attorney-General can apply to the Supreme Court for continued detention of the offender if satisfied to a high degree of probability that the offender is likely to commit another offence
  • Purpose is to secure the safety of the community and to facilitate rehabilitation
55
Q

What are issues of preventative detention

A
  • Legislation arguably erodes some fundamental rights such as:
  • The presumption of innocence
  • The right of an offender only to be punished for crimes for which they have been convicted by a court of law rather than being punished for crimes that might have been committed
56
Q

What is latest legisation surrounding preventative detention

A
  • Crimes (Serious Crime Prevention Orders) Act 2016 , latest move in NSW to crack down on organised crime and bikie gangs, placing significant restrictions on a person’s liberty after they have served a prison sentence for a serious criminal offence
  • The Police Commissioner or the DPP can apply for an order and it may contain any prohibitions, restrictions or obligations that the court considers appropriate
  • Conditions could involve requiring the person to report regularly to a police station, obey a curfew, wear an electronic monitoring bracelet or comply with restrictions on where they can go and who they can communicate with
  • Maximum order can be imposed for 5 years
  • Issues of this legislation are it applies to a wide range of crimes and reduces presumption of innocence
57
Q

What is the sexual offenders’ registration

A
  • The names of serious sex offenders are placed on a register to which police have access, 8 years for adult offenders and 4 years for juvenile offenders
  • Governed by the Child Protection (Offenders Registration) Act 2000 NSW
  • Supporters argue that they protect the community however they are contentious, as they target offenders long beyond the period of sentence, they have served à balance of interests of the community and the offender
58
Q

What is deportation

A
  • Under the Migration Act 1958 (Cth) if non-citizens resident in Australia receive a custodial sentence of 12 months or more and they have been in Australia for less than 10 years they may be deported from Australia by the Minister for Immigration à on the basis they fail the character test prescribed by Migration Act
  • This is controversial as this treats a person as a problem that can be resolved by being moved elsewhere

Yr12 Legal Studies (9 decks)

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