Statutory And Judicial Guidelines

Question 1

What is sentencing and punishment

Answer 1

Once a crime is committed, police investigate it and lay a charge/ charges, and the relevant authority prosecutors the case.
If the accused pleads not guilty, the case will be tried in court.
If the accused pleads guilty or a guilty verdict is reached at trial, the accused will be sent for sentencing. It is the responsibility of a judicial officer (magistrate/ judge) to see the most appropriate sentence

Question 2

What is sentencing

Answer 2

What: The sentence is the sanction imposed by the state in relation to the offender’s criminal conduct. It involves judgement about the severity of the offence, the mens rea of the accused and the need for the crime to be punished.

Where: Sentencing occurs in a sentencing hearing, it is where the magistrate or judge hears and considers arguments and evidence about the relevant law and what the most appropriate sentenc ought to be in the matter at hand. The magistrate/ judge will then determine and announce the sentence.

Question 3

What are factors which sentencing consider

Answer 3

All sentences require careful balancing of the interests of all parties concerned. This includes the victims, community, state and the accused.
This is the most difficult role for the judge to perform, it is often that one or more parties will feel discontent.

Question 4

How is a penalty determined

Answer 4

The determination of a sentence involves judicial discretion which recognises that no two offences are committed exactly the same way, and that no circumstances are different.
However, the introduction of guideline judgements and standard non-parole periods have placed boundaries on judicial discretion.

Question 5

What must judges consider

Answer 5

1. Maximum penalties.
   - e.g. life sentences must be given for the worst murderers and drug dealers of heroin and cocaine if certain conditions are made.
   - this is the most important measure of the seriousness
   - LCMID: the Crimes Amendment (Mandatory Life Sentences) Act 1996
2. Standard non-parole periods
   - introduced in 2002
   - intended to provide guidance and structure to judicial discretion and are not intended to be a form of mandatory sentencing
   - LCMID: the Crimes (Sentencing Procedure) Amendment (Standard Minimum sentencing) Act 2002
3. Guideline judgements
   - issued by the NSW Court of Criminal Appeal as a further guide to judicial discretion. These guidelines outline how the task of sentencing should be approached, but they are designed to be indicative only (structure discretion)
   - if a trial judge departs from the sentence range indicated within guidelines, they will explain the departure in the published reasons
4. Established sentencing ranges:
   - overtime a range of appropriate sentences is established for any given offence
   - this means that sentences that are found to be manifestly inadequate or manifestly excessive are corrected
   - again, if a judge departs from the established range they must explain their reasons in decision
5. Sentencing Information System:
   - the SIS has been operation since 1990
   - provides statistical information, in the form of graphs and tables, on the range and frequency of penalties imposed in recent cases of a similar nature
   - specific details of the offences and the offender are entered, and the system that produces information on the ‘going rate’ of sentences imposed on any particular offence

Question 6

Advantages and disadvantages of guideline judgements and standard non-parole periods

Answer 6

Advantages:
- maintaining consistency in sentencing
- greater flexibility in the establishment of judicial guidelines
- public confidence in the sentencing system

Disadvantages:
- granting courts a legislative role
- they are hypothetical only (do not consider the facts)
- lessens judicial discretion