Topic 2 -- Sentencing Flashcards
Sentencing examples
Imprisonment
Fines
CCOs
Treatment and rehab
Curfew
Non-association orders
Restriction of residence
General principles of sentencing
- severity should be proportionate to the seriousness of the crime
- totality (relates to proportionality): court must have regard to overall effect of the sentences imposed
- parsimony
Statutes with sentencing powers
- Crimes Act 1958 (Vic); creates offences, max penalties
- Sentencing Act 1991 (Vic); centralises guidelines in 1 Act, statutory guidance
- Children, Youth and Families Act 2005 (Vic); rules for sentencing children
Sources of sentencing powers
- Statutes
- Guiding judgments
- Statistical info
s 60 Criminal Procedure Act 2009 (Vic)
Court may give sentence indication at any time during a hearing (summary/indictable heard summarily)
s 61 Criminal Procedure Act 2009 (Vic)
Effect of sentence indication
- MC can’t impose more severe sentence than indicated if accused pleads guilty straight away
- if given, and doesn’t plead G, different M prevails
- not binding on other hearings w different Ms
- decision to give/not give one is conclusive
- applying isn’t admissible evidence
- right to appeal sentence not affected
s 207 Criminal Procedure Act 2009
Court may give sentence indication
- any time after indictment but before the trial starts
- likely type or a specified max total effective sentence
s 208 Criminal Procedure Act 2009 (Vic)
Application for sentence indication
- accused must apply
- court can refuse
s 209 Criminal Procedure Act 2009 (Vic)
Effect of sentence indication
- same as s61
Sentencing powers – Guiding judgments
- from Court of Appeal (since 2003)
- go beyond details of the present case
- eg Boulton v The Queen (2014)
Sentencing powers – Statistical info
Victorian Sentencing Council – stats on a wide range of offences
Duties of counsel in sentencing hearings
Must not:
- mislead
- cast unjustified attacks
- withhold docs/authorities that detract from client’s case
- remain silent in the face of irregularity
- fail to check max penalty for an offence
Role of the prosecution in sentencing hearings
- inform court of relevant sentencing laws, gravity and case of the offence (helpful or unhelpful)
- correcting any matters believed to be erroneous
- assisting the court to avoid appealable error
Role of defence in sentencing hearings
- obtain the least punitive sentence
- identify relevant sentencing factors
- advance argument
- ID and canvas all open sentencing alternatives
- consider whether to make submissions on sentencing
VIS content
- impact of offence on the victim
- any injury, loss or damage as a direct result of the offending
- may contain photos, drawings, poems, medical reports etc
Overall purpose of sentencing (hearing?)
fully inform the judge, so their decision reflects the nature of the offence and the circumstances of the offender
How to work out the appropriate sentence
- governing principles in legislation
- max penalty for the offence
- current sentencing practices
- nature and gravity of the offence
- victim impact
- guilty plea
- previous character
- aggravating/mitigating factors
Difficulties of sentencing
- not purely logical: ‘instinctive synthesis’
- issues like poverty/mental health etc make it difficult to impose sentence that reflects the purposes
s 5(1) Sentencing Act 1991 (Vic)
Purposes
- just punishment
- deterrence
- rehab
- denunciation
- community protection
- any combo
s 5(2) Sentencing Act 1991 (Vic)
Court must have regard for:
- max penalty
- standard sentence (if any)
- current sentencing practices
- nature and gravity
- motivations
- victim impact
injury, loss or damage
- guilty plea
- previous character
- aggravating/mitigating factors
s 6 Sentencing Act 1991 (Vic)
Factors to be considered in determining offender’s character
- number, seriousness, date, relavance and nature of prior convictions/findings of guilt
- general reputation
- significant community contributions
1 penalty unit
$197.59
Custodial sentences
Special orders (incl drug and alcohol treatment order)
Imprisonment
Dismissal
offender found G, no conviction recorded
Discharge
offender found G, conviction recorded with no sanctions
- may be un/conditional
Core conditions of CCOs
- s 45 Sentencing Act
- no reoffending
- not leaving Vic without permission
- reporting to a community corrections centre
- complying with written directions from the Secretary (to the Department of Justice and Community Safety)
s 109 Sentencing Act 1991 (Vic)
Penalty scale
Penalty scale for imprisonment
Level 1 = life
Level 2 = 25 yrs
Level 3 = 20 yrs
Level 4 = 15 yrs
Level 5 = 10 yrs
Level 6 = 5 yrs
Level 7 = 2yrs
Level 8 = 1 yr
Level 9 = 6 months
Penalty scale for fines
Level 1 = –
Level 2 = 3000
Level 3 = 2400
Level 4 = 1800
Level 5 = 1200
Level 6 = 600
Level 7 = 240
Level 8 = 120
Level 9 = 60
Level 10 = 10
Level 11 = 5
Level 12 = 1
s 5(3) Sentencing Act 1991 (Vic)
- court mustn’t impose a sentence more severe than necessary to achieve the relevant purposes
idea of PARSIMONY
s 5(6) Sentencing Act 1991 (Vic)
A court must not impose a community correction order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by imposing a fine
s 5(7) Sentencing Act 1991 (Vic)
A court must not impose a fine unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a dismissal, discharge or adjournment
Additional conditions for CCOs (at least 1)
- s 47 Sentencing Act
Such as:
- medical treatment/other rehab
- unpaid community work up to 600h
- supervision by corrections worker
Thresholds for CCOs
- offence must be punishable by more than a fine of 5 penalty units
- court has received a pre-sentence report
- accused consents
Strengths of sentence indications
Weaknesses of sentence indications
Instinctive synthesis
