HOTTOPICS. 10 Sentencing Options Custodial penalties non-custodial penalties other ways of dealing with offenders.

Transcription

1 HOTTOPICS 2005 > TOPICS 55 LEGAL ISSUES IN PLAIN LANGUAGE This is the fifty-fifth in the series Hot Topics: legal issues in plain language, published by the Legal Information Access Centre (LIAC). Hot Topics aims to give an accessible introduction to an area of law that is the subject of change or public debate. AUTHORS: Jason Keane, Criminal Law Review Division, NSW Attorney-General s Department. This issue is based on Hot Topics 28: Sentencing, written by Honor Figgis. EDITOR: Cathy Hammer DESIGN: Bodoni Studio ACKNOWLEDGEMENT: The publisher would like to thank the NSW Attorney-General s Department for their assistance with this Hot Topics issue. Sentencing 1 The Criminal Justice System 3 Sentencing Terminology 6 The Purposes of Sentencing Adequate punishment deterrence protection of the community rehabilitation accountability denunciation recognition of harm done. 10 Sentencing Options Custodial penalties non-custodial penalties other ways of dealing with offenders. 15 How is a Penalty Determined? Maximum penalty standard non-parole periods guideline judgments established sentencing ranges and sentencing practice Sentencing Information System. State Library of NSW Cataloguing-in-publication data 1. Sentences (Criminal procedure) New South Wales. I. Keane, Jason. II. Hammer, Cathy. III. Legal Information Access Centre. (Series: Hot topics (Sydney, N.S.W.) ; no. 55) Hot Topics, ISSN , No. 55 Library Council of New South Wales All rights reserved. Copyright in Hot Topics is owned by the Library Council of New South Wales (the governing body of the State Library of New South Wales). Apart from any use permitted by the Copyright Act (including fair dealing for research or study) this publication may not be reproduced without written permission from the Legal Information Access Centre. 17 Imposing a Sentence Aggravating factors mitigating factors sentencing discounts for guilty pleas reasons for the sentence victim impact statements. 22 Offenders with a Mental Illness Fitness to be tried the defence of mental illness sentencing and mental illness. 24 Sentencing Aboriginal Offenders 26 Appeals Appeals against conviction appeals against severity of sentence Crown appeals. 28 Contacts and further reading Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst the Legal Information Access Centre attempts to provide up-to-date and accurate information, it makes no warranty or representation about the accuracy or currency of the information it provides and excludes, to the maximum extent permitted by law, any liability which may arise as a result of the use of this information. If you are looking for more information on an area of the law, the Legal Information Access Centre can help see back cover for contact details. If you want legal advice, you will need to consult a lawyer.

2 The Criminal Justice System Most aspects of our lives are affected by the law, which develops and establishes rules about relationships both between individual people, and between individuals and society. The Australian legal system can be divided into civil and criminal law. Criminal law provides a means for society to judge whether people have committed crimes, and to punish those people found guilty. In contrast, civil law generally deals not with punishment but with ensuring that the legal entitlements and obligations of people to each other are upheld, for example through the law of contract. Criminal liability only arises if the person charged is found by a court to be guilty beyond reasonable doubt. The standard of proof for civil matters is different: civil liability may arise if the defendant is found on the balance of probabilities to have acted wrongly. MAJORITY VERDICTS The requirement that an accused can only be convicted if twelve of their peers are each satisfied beyond reasonable doubt of their guilt or innocence is a long-standing principle of the law. The question of whether unanimous verdicts in criminal trials should be preserved or amended has occupied the minds of the legal community and the general public for a long time. It is a debate in which both sides have legitimate and reasonable arguments. There have been reports, however, of rogue jurors unreasonably derailing long and complex trials and these cases generate questions in the community about the effectiveness and fairness of the justice system. On this basis, in 2005 the State Government in NSW announced that it will introduce a majority verdict system that will allow a finding of guilt where eleven of the twelve jurors are of the opinion that the accused is guilty. Majority verdict systems have operated for decades in most other Australian jurisdictions including, South Australia (since 1927), Tasmania (1936), Western Australia (1960) the Northern Territory (1963) and Victoria (1994) and also in the United Kingdom. Laws that make specified acts into criminal offences are enforced through the criminal justice system. This system is made up of a number of processes that work together to ensure that breaches of the law are detected and dealt with. The elements of the criminal justice system include investigation by the police, arrest, interrogation, bail, trial, sentencing and the administration of sentences (such as fines or imprisonment). In Australia, criminal law, including sentencing, mainly operates at the state level, although efforts have been made to design and draft a national criminal code. Federal laws provide for offences in certain areas (such as drug importation). In New South Wales, the main legislation dealing with sentencing is found in: > the Crimes (Sentencing Procedure) Act 1999 (which provides for the sentencing options available to courts, and the imposition of sentences by courts), and As a safeguard, majority verdicts will not be permitted from the outset of the deliberations. A jury will only be able enter a majority verdict after it has deliberated for an acceptable length of time and is unable to come to a unanimous verdict. image unavailable Bruce Burrell, accused of kidnapping and murdering Kerry Whelan, leaves the Supreme Court of NSW in Sydney, 2 November Burrell will face court again in 2006 as the jurors were unable to reach a verdict. AAP Image, Paul Miller. The Criminal Justice System 1

3 > the Crimes (Administration of Sentences) Act 1999 (which provides for the management of sentences by the Department of Corrective Services), and > the Mental Health (Criminal Procedure) Act 1990 (which deals with persons charged with an offence who are mentally ill or affected by other mental conditions). Where a person is found guilty of an offence at trial (or pleads guilty to an offence), it is the role of the courts to sentence the person. If the offence falls within the range of less serious offences, it is dealt with by a magistrate in a Local Court. More serious offences are dealt with by a judge of the District Court or, in the most serious cases, one or more judges of the Supreme Court. Once a sentence is imposed, it is implemented and administered through the Department of Corrective Services, which is responsible for prisons and the Probation and Parole Service. Although criminal justice and sentencing laws are essentially a matter for each state and territory, these laws are shaped by international standards and principles about human rights. Australia is a party to a range of international conventions which deal with sentencing and punishment, such as the International Covenant on Civil and Political Rights, which came into force for Australia in November The Covenant discourages the use of capital punishment (the death penalty) and prohibits it for minors. It also prohibits torture and cruel, inhuman or degrading treatment or punishment. Full text of the Covenant is available from menu3/b/a_ccpr.htm or other/dfat/treaties/1980/23.html HOT TIP Local Courts and the Children s Court are the lower courts and proceedings in these courts are heard by a magistrate. Most criminal matters are dealt with in the Local Court. The Children s Court hears criminal charges against people under the age of 18. District Court proceedings are presided over by a District Court judge. The District Court hears trials, sentencing matters and appeals against decisions made in the Local Court. Supreme Court proceedings are presided over by a Supreme Court judge. Only the most serious offences are tried in the Supreme Court, such as murder. The Court of Criminal Appeal hears appeals against sentence and conviction from the District and Supreme Courts. An appeal is conducted by three Supreme Court judges. The High Court hears appeals against decisions made by the Court of Criminal Appeal. It is the highest court in Australia and there can be no appeals against High Court decisions. The Drug Court is a specialist court that deal with offenders who are dependent on drugs. The Drug Court of New South Wales (NSW) was the first of its kind in Australia, beginning operation in The Court has Local Court and District Court jurisdiction. This Court establishes a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. It is hoped that reducing a person s dependency on drugs will also reduce the person s need to resort to criminal activity to support that dependency and should also increase the person s ability to function as a law abiding citizen. See the Drug Court Act The Land and Environment Court is a specialised court that deals with environmental, development, building and planning disputes. The Court has a criminal jurisdiction which prosecutes a wide range of environmental offences. Prosecutions are usually brought by the Environment Protection Authority (EPA), but can also be brought by local councils. The jurisdiction is summary, which means that the judge hears the case without a jury. See the Land and Environment Court Act HOT TOPICS 55 > Sentencing

4 Sentencing Terminology TERM Accused: DESCRIPTION A person or defendant who has been committed for trial in the District or Supreme Court for an indictable offence is referred to as the accused. Acquittal: When a person charged with an indictable offence is found not guilty by a judge or jury. Arraignment: When a defendant who is committed for trial after a committal hearing is called to the court to be read the indictment and to be asked whether he or she pleads guilty or not guilty. Bail: The release of an accused person pending committal or trial, usually after the person has given a monetary security to ensure that he or she will reappear at court. Charge: An alleged offender may be arrested and taken to a police station to be charged, that is, officially accused of the offence. Details of the person and the offence are entered in a charge book and the accused person is fingerprinted. The person may be kept in custody until the court hearing or may be released on bail. Charge negotiation: Negotiation between the prosecution and the defence as to the charges to be laid and the defendant s willingness to enter a guilty plea to particular offences. Committal hearing: A hearing by a magistrate in a Local Court to determine whether a person charged with an indictable offence should be tried for the offence. The magistrate only has to decide whether there is a case against the defendant, not whether the defendant is guilty or is likely to be convicted. Conviction: The formal order made by a court after an accused person has been found guilty of a criminal offence. Court attendance notice: An order to attend court issued by the court at the request of the informant. The notice specifies the alleged offence and the time and place where the case is to be heard. A court attendance notice (previously called a summons ) is usually used for minor offences. It may be served in person or through the mail. Sentencing Terminology 3

5 TERM Crown prosecutor: DESCRIPTION A barrister appointed to conduct criminal proceedings in the District and Supreme Courts on behalf of the Director of Public Prosecutions. Crown prosecutors also appear in appeal matters. Custodial sentence: A sentence involving detention, especially incarceration in a prison. Defence: The defendant to a criminal prosecution and his or her legal representatives. Defendant: A person who has been charged by the police with a criminal offence. Director of Public Prosecutions: A statutory office responsible for the prosecution of indictable offences in the District Court and the Supreme Court. The DPP is independent of the State Government, which means that the criminal prosecution process is not subject to the political priorities of the government of the day. The DPP determines whether a prosecution should continue after a person has been committed for trial by a magistrate. The DPP can also commence or take over proceedings for indictable offences and for most summary offences in the Local Court. Indictable offence: Relatively serious offences are classified as indictable under the Criminal Procedure Act These are offences such as murder, armed robbery, sexual assault, arson and drug trafficking. The prosecution specifies the charges in an indictment. Indictable offences are usually dealt with by a judge or a judge and jury. However, some indictable offences are dealt with summarily by a magistrate in the Local Court unless the prosecution or the defendant, choose to have the offence dealt with on indictment in the District Court. Examples of these offences are break, enter and steal, motor vehicle theft and malicious wounding. Information: A written allegation that someone has committed a crime. Any person can lay an information before a court, but it is almost always done by the police. Judicial officer: A magistrate in the Local Court and a judge in the Supreme or District Court. The role of the judicial officer is to preside over the trial and to rule on questions of law. If there is no jury, the judge or magistrate also decides questions of fact. In a jury trial, the judge explains the law to the jury and at the end of the trial summarises the facts of the case for the jury. If the jury returns a verdict of guilty, the judge then determines an appropriate sentence. Jury: Twelve people selected from the jury roll, which is compiled from electoral rolls. The task of the jury is to decide on the facts of a particular case, and on the basis of the facts to determine whether or not the accused person is guilty. Jury decisions were previously required to be unanimous, but now a decision of 11 to one is accepted in NSW, see majority verdicts p 1. If the jury cannot agree on the verdict, the judge will discharge the jury and the matter may be retried before a new jury if the Director of Public Prosecutions decides to pursue the prosecution. Offence: A crime either under legislation or the common law made by the courts. Offender: A person who has been found guilty of committing a crime. 4 HOT TOPICS 55 > Sentencing

6 TERM Parole: DESCRIPTION Part of a custodial sentence that is served outside prison and may be subject to various conditions, supervision and reporting requirements. Plea bargaining: see Charge Negotiation Police prosecutor: A police officer who appears in Local Courts and Children s Courts, with the consent of the magistrate, as the representative of the police informant and to conduct the prosecution. If the offence is an indictable offence that may be dealt with summarily in the Local Court, the police prosecutor assesses whether it should be dealt with summarily or on indictment. If the police prosecutor decides that the offender should be indicted, the matter will be transferred to the Director of Public Prosecutions. Probation: A non-custodial sanction involving certain conditions and supervision. Prosecution: The legal representative of the Crown who conducts the case against a defendant. A prosecutor may be an officer of the Police Service (a police prosecutor) or of the Director of Public Prosecutions. Remand: An accused person who is required to appear before a court for further proceedings may be detained pending those proceedings (known as remanded in custody ) rather than released on bail. Standard non-parole period: A non-parole period specified by legislation as being appropriate for an offence in the middle range of objective seriousness for certain listed offences: Crimes (Sentencing Procedure) Act 1999, Part 4, Div 1A. Summary offence: A relatively minor offence, usually dealt with by a magistrate in the Local Court. There is no jury trial for a summary offence. Most offences are summary offences. (See also indictable offence). Victim Impact Statement: A statement that may be read in court in which the victim of a crime may inform the sentencing court of the personal harm and consequences of they have suffered as a result of the offence: Crimes (Sentencing Procedure) Act 1999, sections 26 30A. Sentencing Terminology 5

7 The Purposes of Sentencing The main aims of the criminal justice system are to punish and prevent crime. Sentencing, along with other elements of the criminal justice system such as policing practices and crime prevention strategies all play a part in achieving these aims. Sentencing occurs only when an offender has been found guilty and convicted of an offence. As such, its main effect is directly against the person convicted. However, the importance of sentencing goes beyond the punishment of a particular offender. Sentencing is a highly symbolic and public declaration of how society regards the offence [and] the offender 1 and is designed to denounce criminal conduct and deter other people from committing similar offences. This is why sentencing is usually conducted in open court, allowing the community to see how justice is administered in each particular case. This dual function can be seen in s 3A of the Crimes (Sentencing Procedure) Act 1999 which describes the purposes of sentencing: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. The Crimes (Sentencing Procedure) Act (NSW) does not set out any primary object of sentencing, or place the objectives of sentencing in a hierarchy. When imposing a sentence, a judge or magistrate is required to consider all seven purposes and address the relevance and importance of each purpose. This involves weighing and balancing various facts and issues in each case. In most cases one or two of the purposes of sentencing are found to be more important or relevant than the others depending on the nature of the case and the features of the offender. These purposes are not always consistent with each other, and it is an important part of the discretionary nature of sentencing that a judge or magistrate is free to attach greater weight to some purposes to reflect the unique circumstances of each case. To understand how the purposes of sentencing work, each is explained below: ADEQUATE PUNISHMENT The concept that an offender should suffer a punishment that corresponds with his or her culpability, taking into account the seriousness of the offender s wrongdoing and his or her individual circumstances. This just deserts approach is said to satisfy the fundamental, intuitive desire of victims and the community to see an offender punished in proportion to the harm that he or she has done. This concept also acts as a limitation on punishment, ensuring that punishment is not excessive. image unavailable As can be seen, some of the purposes are designed to specifically address the offender s conduct, while others address the public or symbolic functions of sentencing. Eamon Gallagher, The Age, Melbourne. 1. Findlay, Odgers and Yeo, Australian Criminal Justice 3rd ed 2005 p HOT TOPICS 55 > Sentencing

8 DISCRETION IN THE CRIMINAL JUSTICE SYSTEM Discretion is the power of a decision maker to choose between available alternatives. Discretionary decisionmaking is exercised at all levels of the criminal justice system. For example, a police officer observing criminal behaviour may issue a caution or warning rather than make an arrest. This decision will depend on many factors including the nature of the conduct and the officer s experience and judgment. Similarly, when criminal matters have been investigated by police and a suspect arrested and charged, the matter may be referred to the DPP, who is independent of the police. The DPP must make a decision whether the information supplied by the police is sufficient for the DPP to proceed with the prosecution of the suspect. This is also a discretionary decision, one based on the DPP s knowledge of criminal law and the law of evidence, the likelihood of the prosecution being successful, and the range of penalty that might be imposed if the prosecution were to succeed. Discretionary decisions are also guided by a range of practical consideration such as resources, time and expense, as well as notions of fairness, justice and public interest and expectation. At whatever stage discretion is exercised, the general principle is that no one option is the only correct option. A discretionary decision is not wrong merely because another course of action was available, or because another decision-maker faced with similar facts may have acted differently. A discretionary decision is generally only reviewable (that is it ought to be set aide or altered) where relevant factors were ignored, irrelevant factors were considered, some Act or rule of law was ignored or misapplied, or the decision is unreasonable. Judicial discretion Judicial discretion simply means discretion exercised in carrying out judicial functions. It is not exercised arbitrarily, but in accordance with established judicial methods and practice. It involves the weighing and balancing of various often competing or contradictory factors in order to reach an outcome which is lawful, fair and in the best interests of justice and the community. Discretion in sentencing recognises that every case is unique. No two offences are committed in exactly the same set of circumstances, and no two offenders will have the same background or history. The existence of a broad sentencing discretion allows each case to be judged on its own facts. The importance of discretion in sentencing was summed up by the High Court, which said the discretion which the law commits to the sentencing judges is of vital importance to the administration of justice see Lowndes v The Queen (1999) 195 CLR 665 at p , available at 29.html The introduction of measures such as guideline judgments and standard non-parole periods in recent years has been an attempt to help guide and shape the use of sentencing discretion. Even though these new rules may be seen as imposing limits on the traditional breadth of the sentencing discretion, the discretion remains at the very heart of the sentencing exercise. See How is a Penalty Determined? p 15. When the Act which created standard non-parole periods, the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, was introduced into Parliament in NSW, many people thought that the Act would impose great restrictions on judicial discretion. However, the Attorney General of NSW, in his speech introducing the Act to Parliament made it clear that this was not the case. The Attorney General said the standard non-parole periods were designed to provide further guidance and structure to judicial discretion. The Attorney General went on to say: These reforms are primarily aimed at promoting consistency and transparency in sentencing and also promoting public understanding of the sentencing process. By preserving judicial discretion we ensure that the criminal justice system is able to recognise and assess the facts of an individual case. This is the mark of a criminal justice system in a civilised society. By preserving judicial discretion we ensure that when, in an individual case, extenuating circumstances call for considerations of mercy, considerations of mercy may be given. 2 Operation of sentencing discretion The sentence imposed by a judge or magistrate must be appropriately severe to reflect the seriousness of the offence, yet not be excessive or unduly harsh. Between those two extremes there will be an appropriate range of sentences. The judge or magistrate will make many discretionary decisions in arriving at the sentence. For example, the type of punishment is discretionary. Imprisonment is used only where no other form of punishment is appropriate, and bonds, fines or community service may be selected as the appropriate form of punishment. For less serious offences, there is the discretionary option of recording no conviction, effectively resulting in no punishment (see Sentencing Options, p 10). 2. The Hon R Debus, Attorney-General, second reading speech, Crimes (Sentencing Procedure) (Standard Minimum Sentencing) Bill, New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 23 October 2002, p 5813 The Purposes of Sentencing 7

9 Where imprisonment is decided on as the only appropriate mode of punishment, there are still more discretionary options available. For instance, a term of imprisonment can be suspended, or in the case of young offenders the term may be ordered to be served in a juvenile detention centre rather than in an adult prison. When the mode of sentence has been selected, the length of sentence must also be determined. Again, this is discretionary, although limited by the available maximum penalty. Further discretionary decisions involve the length of the non-parole period compared to the total term of sentence, and whether sentences should be concurrent or cumulative where there has been more than one offence. All of these decisions are guided by the judge or magistrate s knowledge of relevant laws and principles and experience of similar cases. The lawyers representing the offender and the prosecution also make submissions on how they think the discretion ought to be exercised, each pointing out what they believe to be relevant principles and informing the judge or magistrate of the sentences handed down in cases which share similar features to the present case. Ultimately, the exercise of the discretion rests with the judge or magistrate, who will explain how and why particular decisions were reached when he or she hands down the reasons for the sentence. The nature of the discretionary system means that in any case a number of equally correct outcomes could have been reached. The decision that a court makes in a particular case may not be one that Parliament, or the victim, or the offender, expected. Judges and magistrates are not all the same they can have different attitudes and reactions, and can reach different decisions about similar matters. What is important however is that all the relevant facts have been considered and the correct legal principles applied. A decision is not wrong merely because some, or even most people would have reached a different conclusion. A system of appeals and reviews exists to correct sentences that are outside the appropriate range. This system is based on the identification of errors, and appeal courts do not intervene just because they feel they would have reached a different conclusion if they had been handing down the original sentence (see Appeals, p 26). DETERRENCE The objective of preventing future criminal activities by persuading either the individual offender or other potential offenders that punishment outweighs the benefits of crime is known as deterrence. Deterrence aimed at the individual who is being sentenced is known as specific or personal deterrence, while deterrence aimed at others is known as general deterrence. Deterrence as a concept depends on offenders rationally weighing up the benefits and disadvantages of crime, the likelihood of being caught, and the likely punishment. However, much crime (especially by juveniles) is impulsive and opportunistic, not a rational, considered decision. Similarly, where an offender suffers from a mental illness or other cognitive condition, deterrence will play a reduced role in sentencing. PROTECTION OF THE COMMUNITY In some cases it is necessary to protect the community from future criminal acts that may be committed by an offender. This may be necessary where the offender has a record of repeated offences, where the offence committed was particularly violent or heinous or where the offender is considered unlikely to be rehabilitated or reformed. While protection of the community will tend towards NSW LOCAL CRIMINAL COURT STATISTICS Persons found guilty in local court appearances finalised By principal offence* and penalty ASOC^ Homicide and related offences Acts intended to cause injury Sexual assault and related offences Dangerous and negligent acts endangering persons Abduction and related offences Robbery, extortion and related offences Unlawful entry with intent/burglary, break and enter Theft and related offences Deception and related offences Illicit drug offences Weapons and explosives offences Property damage and environmental pollution Public order offences Road traffic and motor vehicle regulatory offences Offences against justice procedures, government security and government operations Miscellaneous offences Total * A person s principal offence is the offence for which he/she receives their most serious penalty ^ Australian Standard Offence Classification, a national standard maintained by the Australian Bureau of Statistics Source: NSW Bureau of Crime Statistics and Research (sew ) 8 HOT TOPICS 55 > Sentencing

10 longer sentences, the aim of protecting society should not lead to the imposition of a sentence that is disproportionate or excessive: Veen (No 2) (1988) 164 CLR 465 at 472. REHABILITATION The idea that an offender s behaviour can be changed by using sentencing as an opportunity to address the particular social, psychological, psychiatric or other factors which influenced the offender to commit the crime is known as rehabilitation. Examples of rehabilitation-based sentencing include drug or alcohol programs, or anger management programs, or deferring sentencing to give the offender a chance to obtain employment or show an improvement in behaviour. Rehabilitation is particularly important in sentencing young persons. ACCOUNTABILITY An additional element to sentencing which has developed since the 1960s, is reparation, or offenders making good the harm they have done to the victim. This most often takes the form of financial compensation, but it can also involve other methods such as an apology, or physical assistance. DENUNCIATION A sentence can serve to make a public statement, that the behaviour constituting the offence will not be tolerated by society. This is an important symbolic function and is often used to reflect community outrage and disapproval, for instance in domestic violence or child sexual assault offences. Denunciation can be achieved through imposing a relatively severe sentence on the offender, and also through the comments and remarks made by the judge or magistrate in imposing the sentence. RECOGNITION OF HARM DONE This purpose seeks to symbolically redress the loss caused to victims of crime and the community at large. This is often achieved by the court receiving a Victim Impact Statement (VIS) in which the victim can express his or her feelings about the crime and its effects on their life and well-being. Although a VIS is not evidence and cannot be used as grounds for increasing a sentence, it is thought that allowing victims the opportunity to voice their feelings assists the justice system generally by increasing awareness of the effects of crime and also by providing victims with a greater sense of involvement thus helping victims to feel that justice has been done Imprisonment Home Detention Periodic detention Suspended sentence with supervision Suspended sentence without supervision Community service order Bond with supervision Bond without supervision Fine Nominal sentence/ rising of the court Bond without conviction Dismissed without conviction Missing/Unknown Total The Purposes of Sentencing 9

11 Sentencing Options When most people think about sentencing, the first thing that comes to mind is imprisonment. However, imprisonment is only one of a wide range of sentencing options available to the courts. As a general concept, imprisonment is regarded as an option of last resort, to be used only when no lesser form of punishment would be appropriate: Crimes (Sentencing Procedure) Act, s 5 (1). As many minor offences do not even allow for imprisonment as an option, it is only used in a small proportion of criminal cases. Generally, any particular offence will have a maximum penalty specified by legislation. There is no minimum penalty specified, therefore the discretion remains to impose any sentence that does not exceed the maximum. So, a major element of the discretionary system of sentencing is the choice of sentencing options. An offence may, for example, specify a maximum penalty of two years imprisonment but be dealt with by the imposition of a fine or a community service order rather than imprisonment. The Crimes (Sentencing Procedure) Act 1999 sets out the range of penalties that may be imposed. These can be divided into two classes: custodial and non-custodial. CUSTODIAL PENALTIES Custodial penalties require the offender to be deprived of liberty in some way. The Crimes (Sentencing Procedure) Act 1999 states in section 5 (1) that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The forms of custodial penalties are imprisonment, periodic detention and home detention. Imprisonment When a court sentences an offender to a term of imprisonment, the sentence is generally divided into two components. The first of these is the non-parole period which is the minimum period for which the offender must be kept in detention. Where a non-parole period is set, the Court must also nominate the balance of the term of the sentence, which commences when the non-parole period expires. These two terms form the total term of sentence. A court that sentences an offender to a term of imprisonment for less than three years with a non-parole period must order that the offender is to be released on parole at the end of the non-parole period. If the offender is sentenced to a term of imprisonment for more than three years with a non-parole period, the offender is eligible to apply for parole after he or she has served the non-parole part of the sentence. If parole is granted, the period of the parole will expire when the balance of the term expires. Where parole is denied, the prisoner will continue to be imprisoned, with the right to apply for parole again in 12 months. This process continues until either the prisoner is paroled, or the balance of the term expires, in which case the prisoner has an absolute right to be released. There are exceptions to these procedures, for example a Court may decline to set a non-parole period (and so require the offender to serve the whole term in prison) if it appears this is appropriate. There is also no power to impose a non-parole period where a life sentence is imposed, and no power to set a non-parole period where the total term of imprisonment is less than six months. Sentences without a non-parole period are known as fixed terms of imprisonment. Parole This is the period of a sentence of imprisonment which can be served outside prison. Strict conditions are attached to release on parole, such as supervision by a parole officer. Parole is part of the custodial sanction, but is also designed to assist the offender to re-integrate into mainstream society. If the offender breaches any conditions of parole, the parole can be revoked and the offender returned to prison to serve the remainder of the sentence. Parole is not strictly a type of punishment but rather a variation of custody. In deciding whether to grant parole, the State Parole Authority takes into account a number of factors, but must have regard for the principle that the public interest is of primary importance. Different parole provisions apply to offenders who are classified as a serious offender. The State Parole 10 HOT TOPICS 55 > Sentencing

12 Authority receives reports and advice from the Serious Offenders Review Council about the release on parole of a serious offender. The Parole Board must notify any victims of the offender who are listed in the Victims Register of a preliminary intention to grant parole to the offender. The victims may make submissions to the Parole Board about whether parole should be granted. Concurrent and consecutive sentences If the offender receives sentences for more than one offence, the sentences may be ordered to be served concurrently (that is, the sentences are served at the same time) or consecutively (each sentence commencing at the termination of the preceding sentence) or partly consecutively (by use of staggered commencement dates). Where an offender is sentenced for more than one offence, the guiding principles are that the sentence for each individual offence must be appropriate for that offence, and the aggregate sentence (that is the accumulated weight of all the sentences) must not be excessive or crushing. This is known as the principle of totality. Periodic detention A court that has sentenced an offender to a term of imprisonment of three years or less, may order that the sentence be served by way of periodic detention. Periodic detention generally involves the offender being detained in a detention centre for weekly two-day detention periods (such as weekends), and being at liberty the rest of the time. An offender on periodic detention may be required to carry out community service work or to participate in any activity that is conducive to the offender s welfare or training. Home detention A court that has sentenced an offender to imprisonment for 18 months or less may direct that the sentence be served by way of home detention. Home detention involves the offender being required to stay inside his or her residence at specified times (for example, from 7pm to 7am). The detention may be monitored by an electronic device attached to the offender, or by random visits and calls to the residence. There are a number of precautions to prevent violent (or potentially violent) offenders being allowed to serve a sentence by way of home detention, in order to protect both members of the community and those likely to share the residence where the offender is detained. Home detention is only available for a limited range of offences, and it may not be ordered for offenders with a certain criminal history (such as a person who has at any time been convicted of sexual assault; or who has, within the last five years, been convicted of a domestic violence offence against any person with whom the offender is likely to live if a home detention order were made). image unavailable A personal identification device worn around the ankle, pictured with a site monitor that relays information from the offender s home to a central position. Craig Abraham, The Age, Melbourne. Sentencing Options 11

13 NON-CUSTODIAL PENALTIES The non-custodial penalties available under the Crimes (Sentencing Procedure) Act 1999 are community service orders, good behaviour bonds, dismissal of the charge, conditional discharge of the offender, deferral of sentencing, suspended sentences and fines. Community service orders: s 8 A court may sentence an offender to community service work if the offender undertakes to comply with the order and if the offender is assessed as suitable for community service work by the Probation and Parole Service. The maximum number of hours of community service that may be ordered is 500. The kind of community service work to be performed is determined by the probation and parole officer supervising the offender. The court making the community service order may recommend that the community service work to be performed should include the removal or obliteration of graffiti and the restoration of buildings, vehicles etc following the removal or obliteration of graffiti. Good behaviour bonds: s 9 A court may make an order directing an offender to enter into a good behaviour bond for a term of up to five years. A person under a good behaviour bond must comply with the conditions of the bond imposed by the court, must be of good behaviour and must keep the court informed of any changes in the person s residential address. If the person doesn t enter into the bond as required, the court may re-sentence the offender for the original offence. Dismissal of charge and conditional discharge: s10 In certain circumstances a court may find a person guilty, but opt to dismiss the charge without recording a conviction. Dismissal of charge is generally used by the courts for trivial offences, or where the age, character, prior criminal record or mental condition of the offender indicates that only a nominal sentence should be imposed. It is seen as a way of giving people who make a mistake or error of judgement a second chance without being burdened by gaining a criminal record. A court may also make a similar order for conditional discharge of the offence, in which case no conviction is recorded but the offender is required to be of good behaviour for a period of up to two years. If this bond is breached the court may convict and sentence the offender for the original offence. Deferral of sentencing: s 11 A court that convicts an offender may adjourn the case and grant conditional bail to the offender for the purpose of assessing the offender s capacity to undergo rehabilitation (such as a drug or alcohol program or finding employment). The case can be adjourned for up to 12 months. When the proceedings are recommenced, the court can, taking into account the outcome of the rehabilitation, impose no sentence or sentence the offender for the original offence. Suspended sentence: s 12 A court that imposes a sentence of up to two years imprisonment on an offender may make an order suspending execution of the sentence for up to two years, and directing that the offender be released from custody on condition that the offender enters into a good behaviour bond. If the offender breaches the good behaviour bond, the court may revoke the bond and the offender must serve the sentence of imprisonment originally imposed. Theoretically, this is actually a form of custodial sentence, as the judge or magistrate is first required to impose the term of imprisonment before proceeding to consider whether the sentence ought to be suspended. Fines A court may impose a monetary penalty on an offender instead of, or in addition to any other penalty. The maximum fine that can be imposed for an offence is generally set out in the legislation creating the offence, and is usually expressed in penalty units. The amount of a penalty unit is set by section 17 of the Crimes (Sentencing Procedure) Act 1999; currently it is $110. For example, if the maximum penalty for an offence is 1000 penalty units, the heaviest sentence that may be imposed is a fine of $ The court is required to take into account the offender s ability to pay when determining the amount of a fine (Fines Act 1996 s 6). If a fine is not paid, the driver s licence and vehicle registration of the fine defaulter can be cancelled. If the fine remains unpaid (or the fine defaulter does not have a driver s licence or motor vehicle), the fine defaulter s property can be seized, or payment of the fine from the defaulter s wages or salary can be arranged without the defaulter s consent. If the fine still remains unpaid, a community service order can be imposed on the defaulter. If the defaulter does not comply with the community service order, the defaulter can be imprisoned (but may be able to serve the sentence by way of periodic detention). 12 HOT TOPICS 55 > Sentencing

14 OTHER WAYS OF DEALING WITH OFFENDERS The process of convicting and sentencing offenders through the courts is time-consuming and expensive for governments as well as defendants. In some cases, it is thought that the best long-term solution for dealing with certain offenders is through means other than traditional sentencing. A range of diversionary schemes and restorative justice programs exist in New South Wales which aim to address the causes of offending behaviour and provide offenders with a pathway to rehabilitation so that they can avoid further contact with the criminal justice system. These schemes often are designed to meet the needs of a particular group of people (such as young persons or Aboriginals), address certain types of offending (eg drug and traffic offences) or provide assistance in overcome certain conditions that are thought to lead to offending (eg drug and alcohol dependency). Young Offenders Act 1997 The Young Offenders Act 1997 (NSW) establishes a scheme of police warnings, cautions and youth justice conferences for certain offences committed by children aged 10 to 18 years. Offences that cause the death of a person, sexual assault offences, traffic offences where the child is old enough to hold a permit or a licence, breaches of apprehended violence orders, and most drug offences are all excluded from the scheme. Police apprehending a young offender may apply a given set of criteria before deciding whether this child should be cautioned, referred to a youth justice conference, or charged. The criteria include: > seriousness of the offence, > degree of violence involved, > harm caused to any victim, > the child s previous offending history, > number of times the child has previously been cautioned or participated in a youth justice conference. Families, extended families, victims and their supporters, police, and the child s lawyer are all entitled to attend a youth justice conference. Others, such as respected community elders, interpreters and skilled professionals may be invited to attend where appropriate. The object of the conference is to agree on an outcome plan for the young offender. The plan is designed to reflect the interests of the victim, the offender and the community. The outcome plan encourages the offender to take responsibility for his or her actions, and provide means of education and rehabilitation designed to divert the child from further criminal behaviour. See: htm Circle Sentencing Circle Sentencing is a restorative justice initiative established to meet the needs of Aboriginal offenders: see also Sentencing Aboriginal offenders, p 24. The scheme was introduced in February 2002 at Nowra Local Court and has now been extended to selected other areas of the state. Offenders are brought before a circle which includes the victim and the victim s family, community elders and other affected community members as well as the offender s lawyer, a prosecutor and a presiding magistrate. While the program is designed to meet the needs of Aboriginal offenders and the procedures are different to those of a usual Local Court sitting, it must be remembered that Circle Sentencing is still a court procedure, and any punishment handed down has the same effect as a sentence imposed by traditional court means. A circle discussion occurs in which the prosecutor, offender, victim and community representatives are all provided with an opportunity to speak. The discussion covers matters such as the offence itself and its impact on the victim and the community, how the damage or harm done may be redressed, and what measures can be taken to assist the victim and the offender in the future. The circle seeks consensus on a range of issues, but is guided by the magistrate who must ensure that the outcome (sentence) is within an acceptable range. Circle Sentencing aims to 3 : > reduce the cultural barriers between courts and Aboriginal people, > improve the level of support for Aboriginal offenders, > incorporate support for victims, > promote healing and reconciliation, image unavailable Young offenders being supervised on community service at Bacchus Marsh Racecourse reserve, Mario Borg, The Age, Melbourne. 3. See Circle Sentencing in NSW, a review and evaluation, by the Judicial Commission of NSW, and the NSW Aboriginal Justice Advisory Council, Sentencing Options 13

15 > increase Aboriginal people s confidence in the legal system, > promote the empowerment of Aboriginal people in the community, > introduce more relevant and meaningful sentencing options for Aboriginal offenders, with the help of respected community members, > help break the cycle of recidivism or repeat offending. A report published after the first twelve month trial of Circle Sentencing in Nowra showed that the penalties imposed by the circle are no less severe than those imposed for similar offences in conventional courts. But importantly, since the circle procedure is less formal, the offender is more likely to recognise and appreciate the harm caused to the victim. It is hoped that this acceptance of responsibility will form a good basis for rehabilitation of offenders. The report also included a survey which found a high level of satisfaction with circle sentencing among those involved including offenders, victims, lawyers, community representatives and support persons. See Circle Sentencing in NSW, a review and evaluation, by the Judicial Commission of NSW and the NSW Aboriginal Justice Advisory Council, Available at click on the link to open the report. Magistrates Early Referral into Treatment Program (MERIT) The Magistrates Early Referral into Treatment Program (MERIT) is a court-controlled program which aims to reduce drug-related crime by providing treatment and rehabilitation services to eligible adult drug offenders. MERIT is different to the other programs discussed here because it operates before an offender enters a plea and can be sentenced. A person who successfully completes the program will have that fact taken into account when he or she returns to court. Successful completion of the program will show the magistrate that the offender is willing to take responsibility for his or her actions and is making positive steps towards rehabilitation. However, because the program is voluntary, failure to complete the program does not incur any additional punishment. See: screenmerit.pdf An offender who is eligible is assessed, and if accepted into the program, will appear before the Drug Court where he or she enters a guilty plea. An initial sentence is imposed but suspended to allow the offender to undergo a treatment program which may involve entry to a residential rehabilitation centre and other treatment such as methadone, buprenorphine and naltrexone programs, psychiatric treatment and counselling. A program will last for at least twelve months unless it is terminated sooner, for instance if the Court decides that the participant has substantially complied with the program or if the offender applies to have the program terminated. When a program is terminated or completed, the Court reconsiders the initial sentence. If the offender has complied with the treatment program, a non-custodial sentence is often substituted for the original sentence. The Court also awards certificates of graduation and of achievement to successful participants. Where an offender fails to successfully complete the treatment program, the initial sentence cannot be increased. Appeals against a final sentence imposed after a sentence is terminated can be made to the Court of Criminal Appeal. See: An evaluation by the Bureau of Crime Statistics and Research, published in 2002: bocsar Youth Drug and Alcohol Court This court deals with eligible young offenders, and has a similar aim of giving young offenders an opportunity to participate in an intensive program of rehabilitation before being sentenced. A program lasts six months and involves detoxification and rehabilitation, educational and vocational courses, and regular appearances throughout that period before the Youth Drug and Alcohol Court. The Court is established under the Children s (Criminal Proceedings) Act For more information see gov.au/lawlink/drug_court/ll_drugcourt.nsf/pages/ ydrgcrt_aboutus Other diversionary schemes include the cannabis cautioning scheme, the Traffic Offenders Program (TOPS) and the Sober Driver Program. The Drug Court The Drug Court of NSW was instituted in 1999 as an alternative to traditional criminal justice approaches to provide long-term solutions to the cycle of drug use and crime. Drug Courts aim to assist drug-dependent offenders to overcome both their drug dependence and their criminal offending. The program diverts offenders into programs designed to eliminate, or at least reduce, their dependency on drugs. 14 HOT TOPICS 55 > Sentencing

16 How is a Penalty Determined? When a person has been found guilty and convicted of a criminal offence, it is then the judge or magistrate s role to sentence the offender. In NSW, the jury has no role in the sentencing process. Sentencing in NSW is a discretionary system (see p 7 for more detail), that is the individual judge or magistrate can impose a wide range of penalties, as opposed to some legal systems which use mandatory penalties. While the sentencing discretion is generally quite broad, it is limited and guided by a number of factors. Some of these factors are discussed following. MAXIMUM PENALTY The penalty imposed for a particular offence can not exceed the maximum as defined by the relevant legislation. This may also preclude certain penalty options. For example, if the maximum penalty is a fine of 1000 penalty units, options such as imprisonment cannot be used. The maximum penalty is the single most important measure of the seriousness with which Parliament and the community regards a particular offence. STANDARD NON-PAROLE PERIODS Some offences are listed as having standard non-parole periods: see Crimes (Sentencing Procedure) Act, Part 4 Div 1A. When sentencing an offender to a term of imprisonment for any of these offences, the judge or magistrate must refer to the listed standard non-parole period which is to be applied for an offence in the middle of the range of objective seriousness unless the court determines that there are reasons for setting a longer or shorter non-parole period. In practice, there are a wide variety of reasons for departing from the standard period. The introduction of the concept of standard non-parole periods, which occurred in 2002 was intended to provide guidance and structure to judicial discretion and is not intended to be seen as a form of mandatory sentencing. GUIDELINE JUDGMENTS Guideline judgments are issued by courts as a further guide to judicial discretion. However, unlike standard non-parole periods which were made by Parliament, guideline judgments in NSW are issued by the Court of Criminal Appeal. As this is the highest court of criminal jurisdiction in the state, its rulings are binding on the lower criminal courts in which sentences are commonly being determined and imposed. The first guideline judgment was issued in 1998, and several more have been issued since. Guideline judgments outline how the task of sentencing for specified offences and circumstances should be approached. Guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were binding rules; guideline judgments are a mechanism for structuring discretion, rather than restricting discretion. If a trial judge departs from the sentence range indicated by the guideline judgment, the judge will explain the departure in their published reasons for the decision. Guidelines for particular offences Guideline judgments have been issued relating to particular offences (and also outlining how particular matters are to be dealt with regardless of the offence being sentenced (for example the quantification of discount for guilty plea). > R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259: guideline on the offence of dangerous driving causing grievous bodily harm or death. This was the first guideline judgment in NSW; available at html The guideline has since been modified and re-stated in the case of R v Whyte [2002] NSWCCA 343; available at html How is a Penalty Determined? 15

17 > R v Wong and Leung [1999] NSWCCA 420: offence of drug importation under the Commonwealth Customs Act 1901, s 233B. This guideline was overruled by the High Court of Australia in the case Wong v The Queen; Leung v The Queen [2001] HCA 64; available at CCA/1999/287.html > Attorney General s Application (No 1), R v Ponfield & Ors [1999] NSWCCA 435: guideline on the offence of break, enter and steal under the Crimes Act 1900, s 112(1); available at NSWCCA/1999/435.html > R v Henry & Ors [1999] NSWCCA 111: offence of armed robbery under the Crimes Act 1900, s 97; available at CCA/1999/111.html > Application by Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303: offence of High Range PCA (drink-driving) under the Road Transport (Safety and Traffic Management) Act 1999 s 9(4); available at CCA/2004/303.html Because of its long name, this case is commonly referred to as the PCA guideline or similar. Other guidelines > R v Thomson and Houlton [2000] NSWCCA 309: guideline for sentencing discounts for guilty pleas in accordance with the (Crimes (Sentencing Procedure) Act 1999, s 22; available at cases/nsw/nswcca/2000/309.html > Attorney General s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518: guideline for sentencing in cases involving Form 1 offences. (A person guilty of an offence may admit that he is guilty of other offences, and these offences are listed on a Form 1. When being sentenced, these additional matters will be taken into account as an aggravating factor leading to an increased sentence by giving greater weight to personal deterrence and retribution. The use of Form 1 is thought to be beneficial both in terms of clearing up a large number of offences, saving time and money, and promoting rehabilitation since the offender who admits other offences will have a clean slate and cannot be subsequently punished for those offences.) Available at html ESTABLISHED SENTENCING RANGES Over time a range of appropriate sentences is established for any given offence. This shared knowledge and experience guides the sentencing judge or magistrate in deciding what types of sentence are generally available for a particular offence, and what range of sentence is typically imposed. For instance, there is no rule that says for the offence of murder the only available option is a full-time sentence of imprisonment. However, in practice, this is the only option used for murder sentences. Similarly, for any given offence a sentencing range develops over time. This indicates the severity of sentences imposed over time. Most sentences are well below the maximum available penalty. The system of appeals available in NSW means that sentences that are found to be manifestly inadequate or manifestly excessive are corrected, thus providing further guidance as to the permissible range of sentences for any given offence. The nature of the judicial discretion allows the judge or magistrate to depart from the established range if he or she sees fit, so long as the sentence does not exceed the allowable maximum. Particularly lenient or unusually severe sentences may be imposed where the judge or magistrate sees fit. However the sentencing judge or magistrate must carefully and fully explain the reasons for imposing that sentence. THE SENTENCING INFORMATION SYSTEM To improve the efficiency and consistency of sentencing practices in New South Wales, statistical information on sentencing has been made available to sentencing judges in an online system developed by the Judicial Commission of New South Wales. This Sentencing Information System has been operating since The system 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 offence and the offender (age, prior record, bail status, plea, etc) are entered, and the system then produces information on the going rate or range of sentences imposed for any particular offence. The statistical information is derived from data that is generated by the courts and collected by the New South Wales Bureau of Crime Statistics and Research. Graphs from the Sentencing Information System are often submitted both by the defence and the prosecution to help illustrate the established range of sentences for a particular offence. For more information on the Sentencing Information System see main.html 16 HOT TOPICS 55 > Sentencing

18 Imposing a Sentence Arriving at an appropriate sentence can be a very difficult exercise. Many factors must be considered, some of which may seem to indicate that a lesser sentence should be imposed; others that a harsher sentence ought to be imposed. All the competing factors must be examined, weighed and explained in order to arrive at a single result. In addition to matters such as the maximum penalty or a guideline judgment mentioned above, there are a range of other matters that must be taken into account. Those factors which are favourable to the offender, lessening culpability and tending to lessen the sentence that may be imposed are called mitigating factors. Factors which tend to increase the seriousness of the offence and the offender s culpability (or blameworthiness) are called aggravating factors. There are few limits on what may constitute an aggravating or mitigating circumstance. The aggravating and mitigating factors that must be considered are listed in section 21A of the Crimes (Sentencing Procedure) Act, but this list is not exhaustive. Any other factor that affects the relative seriousness of the offence may also be taken into account: s 21A (1) (c). AGGRAVATING FACTORS The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: > if the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim s occupation, > the offence involved the actual or threatened use of violence, > the offence involved the actual or threatened use of a weapon, > the offender has a record of previous conviction, > the offence was committed in company, > the offence involved gratuitous cruelty, > the injury, emotional harm, loss or damage caused by the offence was substantial, > the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), > the offence was committed without regard for public safety, > the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, > the offender abused a position of trust or authority in relation to the victim, > the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim s occupation (such as a taxi driver, bank teller or service station attendant), > the offence involved multiple victims or a series of criminal acts, > the offence was part of a planned or organised criminal activity. The court will not take any such aggravating factor into account in sentencing if it is an element of the offence. For example, in the offence of armed robbery it is an element of the offence that the offender was armed with some type of weapon, therefore being armed should not be considered as an additional aggravating feature. MITIGATING FACTORS The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: > the injury, emotional harm, loss or damage caused by the offence was not substantial, > the offence was not part of a planned or organised criminal activity, > the offender was provoked by the victim, > the offender was acting under duress, Imposing a Sentence 17

19 > the offender does not have any record (or any significant record) of previous convictions, > the offender was a person of good character, > the offender is unlikely to re-offend, > the offender has good prospects of rehabilitation, whether by reason of the offender s age or otherwise, > the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, > the offender was not fully aware of the consequences of his or her actions because of the offender s age or any disability, > a plea of guilty by the offender (section 22), > the degree of pre-trial disclosure by the defence (section 22A), > assistance provided by the offender to law enforcement authorities (section 23). Those factors relating to the nature of the offence itself, for example whether the offender was armed or in company, or threatened or used violence or has inflicted great or slight injury, loss or damage are known as objective factors. The factors which are particular to the offender, for example age, prior record, plea or disability, are know as subjective features. There is almost no limit on what may constitute a relevant subjective feature of an offender s case. CHARGE NEGOTIATION (OR PLEA BARGAINING) A plea of guilty is considered to have a practical or utilitarian value to the criminal justice system, with the greatest benefit being in cases where a guilty plea is entered at the earliest available time. Prosecutors are actively encouraged to facilitate guilty pleas from those charged with offences. One of the ways in which this is done is through the process of charge negotiation. This involves discussion between the prosecution and the defence as to what, if any, charges the defendant would be prepared to plead guilty to. There are a great number of criminal offences, many of which are quite similar. The difference between one offence and another may be quite subtle and involve the presence or absence of just one factor or element of the offence. Charge negotiation is the process by which the prosecution agrees to charge the less serious of two or more alternative offences, in exchange for the defendant s plea of guilty. This is done to avoid a long and costly trial in which one or two uncertain elements are argued over at great length. Examples may include the presence or absence of a weapon in an assault or robbery, or the precise age of a child victim in a sexual offence. Often the charge negotiation process is initiated where it is clear that an offence has been committed, but the contentious element (eg the weapon or victim s age) cannot be precisely determined due to lack of evidence, contradictory evidence or some other reason. Charge negotiation may also occur in cases where an offender is charged with multiple offences. In those cases some charges may be withdrawn with the defendant pleading guilty to one or some of the remaining charges. However, the process of charge negotiation is not unlimited, and expedience or utilitarian value is not the only factor that must be considered. Prosecutors working for the Office of the DPP are bound to operate within the guidelines set down by the Director. These provide that a plea of guilty must only be accepted if it is in the public interest. It must be considered whether: > the alternative charge adequately reflects the essential criminality of the conduct and the plea provides adequate scope for sentencing, > the evidence available to support the prosecution case is weak in any material respect, > the saving of cost and time weighed against the likely outcome of the matter if it proceeded to trial is substantial; and/or > it will save a witness, particularly a victim or other vulnerable witness, from the stress of testifying in a trial. (Prosecution Guideline 20) In addition, the views of both the police officer-in-charge of the investigation and the victim must be sought at the beginning of discussions. According to DPP Guideline 20, this means that a plea will not be considered where its acceptance would produce a distortion of the facts and create an artificial basis for sentencing, or where facts essential to establishing the criminality of the conduct would not be able to be relied upon, or where the accused person intimates that he or she is not guilty of any offence. The benefits of charge negotiation are: > that it spares victims and witnesses the trauma of having to testify and be cross-examined at a trial, particularly for children and sexual assault complainants; > the State will be saved the expense of a trial; > court backlogs and delays are alleviated if more defendants plead guilty; > the Crown case may not be sufficiently strong to obtain a conviction if the matter proceeds to trial on the higher charge. By allowing the offender to plead guilty to a lesser charge, at least the offender is penalised to some extent for their actions. 18 HOT TOPICS 55 > Sentencing

20 The disadvantages of charge negotiation are: > it can be regarded as effectively rewarding guilty people, or as punishing those who earnestly plead not guilty but are subsequently convicted and receive no discount; > negotiations take place in private, contrary to expectations that justice should be conducted in public whenever possible. To non-lawyers, the process may seem like a deal done between the prosecution and defence lawyers to save them time, effort or resources; > plea bargaining detracts from traditional sentencing principles like deterrence. Offenders are dealt with more leniently and therefore may not be sufficiently deterred from re-offending; > victims often feel that their suffering has been trivialised when fact summaries and witness statements are edited as part of a plea bargain; > the right to silence is undermined if police refer to incentives such as sentencing discounts to encourage a confession; > the prospect of a discount may induce some defendants to plead guilty if the case against them looks strong, even though they did not commit the crime or a conviction is not appropriate. Utilitarian value facts and figures In a report written by The Hon. Gordon Samuels, AC CVO QC, published in 2002, it was estimated that in the period from January 1998 to September 2001 > in the District Court for the period January 1998 to 30 September 2001, of the 1890 cases committed for trial, 591 cases (32%) were negotiated as pleas of guilty through charge negotiation. This saved an estimated 2509 days of court sittings. > The estimated cost of a single day of District Court sitting in a criminal trial (excluding the cost of Legal Aid, Public Defenders, Corrective Services, Crown Prosecutors, Legal Counsel and police) is $4526. > The saving to the community by eliminating the approximately 2500 sitting days was in the District Court was $ ; and much more when the excluded items are factored back in. See Recent Development in Sentencing, N Cowdery a speech given at the Criminal Law Conference, Sept 2004, which discusses plea bargaining at length, with case examples. public/ doc SUBMISSION ON SENTENCE In court at the sentencing hearing, both the defence and the prosecution will have the opportunity make a submission on sentence to the judge or magistrate. In this submission the defence and the prosecution will outline what they believe are the most important objective and subjective matters in the case and present an argument on how those factors should be viewed. Both the defence and the prosecution may refer to or submit examples of other cases which they believe are of a similar nature in order to demonstrate an appropriate range of sentences. The prosecution informs the court about any aggravating circumstances of the offence, and the defence informs the court about any mitigating circumstances. The court may also be presented with information such as psychiatric reports. A court may request that a pre-sentence report on the offender be prepared, providing information on the social background of the offender, and setting out the views of other people such as a psychologist or psychiatrist. The judge or magistrate will hear the submissions, and these submissions will guide the exercise of his or her discretion. An important rule in assessing these factors is that any factors adverse to the prisoner must be accepted as beyond a reasonable doubt, whereas factors favourable to the prisoner need only be established on the balance of probability (that is, that they are more likely to be true than not true). This makes it easier for the defence to establish mitigating factors than it is for the prosecution to establish aggravating factors. This rule is an important safeguard in the criminal justice system designed to protect individuals from being unduly punished. SENTENCING DISCOUNTS FOR GUILTY PLEAS The majority of criminal offenders, when charged with an offence, choose to plead guilty. When this happens, a conviction may be entered without the need for a trial. One of the main reasons that offenders choose to plead guilty is to reduce the sentence they would otherwise receive if they were tried and found guilty. A plea of guilty has traditionally been viewed as a mitigating factor as is demonstrates a degree of remorse or contrition on the part of the offender, and it is listed in section 21A of the Crimes (Sentencing Procedure) Act as one of the mitigating factors that must be referred to in all relevant cases. Imposing a Sentence 19