Sentencing & Punishment Flashcards
Who is responsible to set the most appropriate sentence?
Magistrate/judge
What is a sentencing hearing?
The magistrate or judge hears arguments and evidence about relevant law and the most appropriate sentence
* They will then determine and announce the sentence
What factors are judged when sentencing?
- Mens rea of the accused
- Severity of the offence
- Need for a crime to be punished
What is Mandatory Minimum Sentencing and its intended purpose?
Having a minimum sentence for certain crimes –> 8 years MMS for ‘one-punch’ offenders
Three Strikes Policy
Part of MMS and involves offenders being mandatorily imprisoned if convicted three times for certain offences
Challenges regarding Mandatory Minimum Sentecing
- Removes the ability fro a judge to have discretion and consider individual circumstances
- Targeted persecution of minority groups
- Over represented in Indiginous and is impacted by current politics
Statistics for Mandatory Minimum Sentencing
- ALRC states that MMS are not an effective deterrent & instead contribute to higher rates of reoffending
- “Perpetuate mass incarceration”
List all the Purposes of Punishment
- Deterrence
- Retribution
- Rehabilitation
- Incapacitation
What is deterrence
Discouraging an individual from doing something by passing a higher sentence in hopes that the fear of punishment might help prevent future offences
What are the types of deterrences?
- General deterrence
- Specific deterrence
What is specific deterrence?
- Punishment against an individual offender which aims to prevent them from committing future crimes by showing that crime doesn’t pay
What is general deterrence?
Making an example out of an offender to send a message to the rest of society that the law is serious about punishing people for that offence
Challenges regarding deterrence
- Little evidence to show that individual crime sentences are effective deterrent
- Evidence that a lower reconviction rate occurs with individuals who were given lesser sentences
Deterrence CLMS
ALRC
Stats:
1988 ALRC recommened that deterrence shouldn’t be included as a sentencing objective and sentences should only be in relation to the seriousness of the offence
Case:
Lilliana Goodson [2024]
- Woman tried to smuggle a 24 carat gold plated gun into Australia claiming she was unaware
- Magistrate said that there was a strong need to prevent similar cases from occurring so Goodson was sentenced to 12 months of imprionment and a $1000 fine
What is retribution?
- Concept that the punishment should be considered morally right because of the crime as some good comes from inflicting hardship on the offender because of their crime
- Society seeks retribution on behal of the victim in an impartial manner and returns the effect the crime has had on the victims and family
- Often occurs to reflect the opinion of society
Retribution CLMS
Legislation:
R v AEM [2002]
- Three teenagers were originally given a shorter sentence after the luring and gang rape of two teenage girls but was later changed because of public outrage
- Creation of the aggravated sexual assault in company law
What is rehabilitation?
Aims to discourage future offences by attempting to alter the views of the offender
- Encourages offenders to eliminate factors that contributed to the conduct and helping criminals choose not to return to the same pattern or behaviour that lead to the lifestyle in the first place
- More successful for less serious offences
- Drug counselling, rehab programs, anger management courses etc
What is incapacitation?
Making the offender incapable of committing further offences –> more on protecting the community than behavioural reform
- Community work/license cancellation and imprisonment
What are the factors affecting a sentencing decision?
- Aggravating factors: circumstances that make the offence more serious and can lead to an increased sentence
- Mitigating factors: circumstances that make the offence less severe and can lead to a reduced sentence
- Objective and subjective factors - subjective factors regarding things like state of mind & circumstances of the accused
- Whether or not the accused plead guilty
- Whether or not the offender cooperated and assisted law enforcement
Do all aggravating or mitigating factors automatically mean an increased or reduced sentence?
No, sometimes in young offender cases personal circumstances are important for rehab concerns but are outweighed for really serious or extreme offences
What are aggravating factors?
The way the offence was committed, characteristics of the victim(s), or characteristics of the offender
- Generally make the crime less excusable in some way
- Sorted in offence, victim and offender
Aggravating factors classifications
Offence:
- If the offence involved violence, weapons or the threatened use of weapons
- Caused any injury, harm or damage
- Motivated by hate or prejudice
- Committed in company or involved in some sort of organised crime
Victim:
- If the victim was vulnerable (old, disabled, young) or targeted because of their occupation (nurse, doctor, police)
- If there were multiple victims
Offender:
- If the offender abused a position of authority when committing the offence
- If they are a reoffender or had any prior convictions
What are mitigating factors?
Circumstances that explain the offenders cause of conduct
- Showing that they regret their actions or generally have really good character
- Usually subjective factors relating to the offenders state or mind or their behaviour
- Youthful, inexperienced and easily led
- Pleaded guilty and assisted police
- Provoked/acting under duress
Role of the Victim in Sentencing Legislation
Victim Rights and Support Act [2013]
Dictated by the Charter of Victims’ Rights:
- Requires the victim’s dignity
- Protection of identity
- Access to certain inofrmation and assistance during the CIP
What are victim impact statements?
- Allows the victim to participate in the criminal trial process by letting the court know how the crime has impacted them
- Only permitted for serious offences involving violence, death, physical harm to a person and if the court finds it appropriate
- Presented after the offender is found guilty but before sentencing is passed
Arguments for Victim Impact Statements
- If the offenders personal circumstances are taken into consideration when determining guilt then the victim’s should be when determining sentencing
- Creates a confronting experience for the offender and allows them to face the effects of their actions
Arguments against Victim Impact Statements
- Can be thought to remove the impartiality from the jduge’s process
- Especially in victim death cases the judge may hand down different sentences depending on whether the victim was more or less loved by the family
What are the types of appeals AND what must be proven?
- Appeals against conviction
- Sentence appeal
Both appeals to the Court of Criminal Appeal will only succeed if the person can show that there was a legal error
Appeals against conviction
Appellant argues that they didn’t commit they offence they were charged guilty with
- Required proof that there was some error in the handling/prosecution of their case –> admitted evidence or jury instructions
- Successful appeals are acquitted or given a retrial
Sentence Appeal
Appeals by the offender against the severity of their sentence/leniency by the prosecution
- Can be made alone or alongside an appeal against conviction
Judge can:
- Set aside the sentence
- Vary the sentence ( can increase or reduce)
- Dismiss the appeal
What are the types of penalties?
- Caution
- Criminal Infringement Notice
- Conviction or No Conviction Recorded
- Fines
- Forefeiture of Assets
- Conditional Release Orders
- Community Correction Orders
- Imprisonment
- Intensive Correction Order
- Diversionary Programs
