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Flashcards in Sentencing and Punishment Deck (58)
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What is the primary source of sentencing law in NSW

  • 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


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

  • 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)`


Where are most maximum sentences found

  • 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’


How do judges use maxiumum sentences

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


What do maximum sentences reflect

  • 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.


What are guideline judgements

  • 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.


Are guidelines binding

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


What is purpose of guidelines

  • 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


How must judges use judicial discretion with regard to sentencing

  • 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


What is mandatory sentences

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


What is exmaple of mandatory sentencing

  • 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)


What are arguments against mandatory sentencing

  • 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


What are the purposes of punishment

  • Deterrence
  • Retribution
  • Rehabilitation
  • Incapacitaion


What is example of rehabiliation

  • 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’


What are factors affecting sentencing decisions

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


Which act contains victims rights

  • 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


How are victim impact statements incorporated into sentencing

  • 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


What are arguments against VIS

  • 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)


What are arguments for VIS

  • 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


What act outlines sentencing guidelines

  • Crimes (Sentencing Procedure) Act 1999 NSW


What are aggravating factors

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


What are mitigating factors

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



What are examples of mitigating circumstances

  • 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.


What are two types of appeals

  • Appeal against conviction
  • Sentence appeal 


What is an appeal against conviction

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


What is an appeal against sentence

  • 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)


Example of appeal case

R v Loveridge 2014 (NSWCCA)


What are the main types of penalties

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


What is a caution

  • 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