This is a sample for the HSC Legal Studies Crime package by HSC Apps. Just click Download and it's all yours to do what you want with it! All of the resources have been updated for 2014-15 to include the latest laws, cases and media reports. You'll see that this presentation includes the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, ‘Mandatory minimum sentences are a legal and judicial muddle’ (SMH, 2014), Lessons from the Kieran Loveridge Sentence (SMH, 2014), the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 and much more. To order, download the order form from our facebook page or contact us at info@hsclegalstudies.com.

1. ‘Sentencing’ is when a
judge decides on a punishment.

2. Think of how hard it would be to be a judge and decide on a punishment for
someone…
How would you decide the punishments for these three armed robbery cases:
Less Serious Armed Robbery “Average” Armed Robbery More Serious Armed Robbery
Offender just turned 18, with
Offender is 22, with little
Offender is 40 with long
no criminal history
criminal history
criminal history
Weapon was a stick Weapon was a knife Weapon was a shotgun
Impulsive (he “just did it”
Some planning (the night
Weeks of planning and
without any planning)
before)
organising
Threatened violence, but
didn’t actually hurt anyone
Pushed someone over Shot someone
Victim was an armed guard Victim was a shopkeeper Victims included elderly
women
Only $10 taken $150 taken $5,000 taken
Decided to plead guilty (even
Decided to plead guilty
though there wasn’t much
because the prosecution had a
chance the prosecution could
very strong case.
have proved their case against
him).
Decided to plead not guilty,
leading to a long and
expensive trial.

3. The judge
STATUTORY AND
JUDICIAL GUIDELINES
can’t just pick ANY punishment.
There are GUIDELINES.
These guidelines come from
two different places:
1. Parliament (Statutory)
2. Previous cases (Judicial)

4. STATUTORY AND
JUDICIAL GUIDELINES
The really OLD way of choosing a sentence…
Judges used to hand down MASSIVE prison sentences that seemed
tough (e.g. 25 years), but then the offender would only serve 4 or 5
years.
This caused public and media outrage.

5. STATUTORY AND
JUDICIAL GUIDELINES
And THEN we had…
The NSW parliament passed the Sentencing Act 1989 (NSW) which
required people sentenced with imprisonment to serve a minimum
percentage (75%) of their sentence without getting parole. This was
called ‘truth in sentencing’.

6. STATUTORY AND
JUDICIAL GUIDELINES
And NOW we’ve got…
The Crimes (Sentencing Procedure) Act 1999 (NSW), which was
amended in 2003 to give us a very different, complicated system.
NSW Attorney-General Bob Debus
2nd Reading Speech for the
WHY???
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2003 (NSW)

7. STATUTORY AND
JUDICIAL GUIDELINES
And NOW we’ve got…
The Crimes (Sentencing Procedure) Act 1999 (NSW), which was
amended in 2003 to give us a very different, complicated system.
1. MAXIMUM sentences for ALL crimes
STATUTORY guidelines
1. STANDARD Non-Parole Periods for SOME crimes
STATUTORY guidelines
1. GUIDELINE judgements for SOME crimes
JUDICIAL guidelines
1. MANDATORY life sentences for SOME crimes
STATUTORY guidelines

8. STATUTORY AND
JUDICIAL GUIDELINES
1. MAXIMUM sentences for ALL crimes
All crimes have a maximum
punishment.
Most of the crimes and their
maximum sentences are in the Crimes
Act 1900 (NSW)
Armed Robbery
maximum
= 25 years

9. STATUTORY AND
JUDICIAL GUIDELINES
But a judge isn’t just going to give the
MAXIMUM sentence ALL the time!
Every case is going to be different.
Some will be more serious.
Some will be less serious.

10. FACTORS AFFECTING
A SENTENCING
DECISION
-Aggravating circumstances
-Mitigating circumstances
F A C T O R S F A C T O R S
Looks at the actual CRIME/OFFENCE
Can make the punishment more
severe
e.g. The offence involved violence, the victim was
a police officer (or teacher…) who was doing their
job, etc
Looks more at the OFFENDER
Can make the punishment less
severe
e.g. The person is unlikely to re-offend, the
person is of good character, the person has
shown that he has taken responsibility for his
actions, etc

11. FACTORS AFFECTING
A SENTENCING
DECISION
-Aggravating circumstances
-Mitigating circumstances
DISCUSS factors that
affect sentencing
decisions, including the
purposes of punishment
and the role of the victim
FACTORS AFFECTING
A SENTENCING
DECISION
-Aggravating circumstances
-Mitigating circumstances
Discuss the issues
involved with having
aggravating and
mitigating factors
The NSW Law Reform Commission Report
139 – Sentencing looked into the problems
with having a big list of aggravating and
mitigating factors.
They found that s.21A (where the aggravating
and mitigating factors are listed) was
confusing a lot of judges.
There were:
1. Too many factors to consider; and
2. Most were completely irrelevant

12. FACTORS AFFECTING
A SENTENCING
DECISION
-Aggravating circumstances
-Mitigating circumstances
DISCUSS factors that
affect sentencing
decisions, including the
purposes of punishment
and the role of the victim
FACTORS AFFECTING
A SENTENCING
DECISION
-Aggravating circumstances
-Mitigating circumstances
Discuss the issues
involved with having
aggravating and
mitigating factors
Also, some crimes (like sexual
offences under the Crimes
Amendment (Serious Sexual
Offences) Act 2008) have NO
POSSIBLE MITIGATING FACTORS - it
doesn't matter if it's your first
offence, or you’re usually a good
person  you're getting the
STANDARD NPP AS A MINIMUM!

13. STATUTORY AND
JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
There are TWO SEPARATE LAWS that the judge has to follow.
The Crimes Act tells the judge the MAXIMUM punishment.
e.g. 25 years max for Armed Robbery
e.g. 7 years SNPP for Armed Robbery
The Crimes (Sentencing Procedure) Act
tells the judge the ‘STANDARD Non-
Parole Period’. This is what parliament
says SHOULD be the “standard”
minimum punishment.

14. STATUTORY AND
JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
From the
Crimes Act
From the
C(SP) Act
But this isn’t for every crime! Just SOME!!!
From the
Crimes Act
From the
C(SP) Act

15. STATUTORY AND
JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
But do judges HAVE TO give these
‘standard’ non-parole periods?
NO!
Judges always thought they had to START from the SNPP
and then go up and down from there (based on the
aggravating factors and mitigating factors).
But the High Court decided in 2011 that
the SNPP for a crime is just a
‘guidepost’ or ‘marker’
(Muldrock (2011)).
So, the SNPP for a crime just gives the judge SOME DIRECTION

16. STATUTORY AND
JUDICIAL GUIDELINES
2. STANDARD Non-Parole Periods for SOME crimes
35 crimes with SNPPs
(set by statute law)

17. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
Not all judges think the same way.
They are humans, with their own ideas of what is important.
What’s the most important in choosing a partner? Sense of humour? Intelligence? Body?
Different people give different weight to different aspects.

18. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
To normal people, a judge’s
REASONS for deciding to give
someone 5 years in jail will look
like this (x 20 pages)
But other judges see it like this:

19. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
So, for 3 Armed Robbery cases, 3 different judges will come up with 3
different decisions with 3 different personal “systems” deciding what is
(and isn’t) important in working out a punishment.
Sentence: 5 years Sentence: 3 years Sentence: 8 years

20. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
But WE DON’T REALLY WANT THIS.
We want CONSISTENCY in our legal system (judges should be roughly
thinking the same way; giving the same amount of weight to the same
issues). We want the process to be PREDICTABLE.
Sentence: 5 years Sentence: 3 years Sentence: 8 years

21. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes

22. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
The NSW Sentencing Council looks at
the way different sentencing
decisions have been made by judges.
They focus on the REASONING of the
judge in deciding on a specific
sentence.
They decide for some cases, on ONE
JUDGEMENT as being “the
CORRECT way to work out
the sentence in (this type
of) case”

23. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
e.g. The NSW Sentencing Council has
decided that the case R v Henry
(1999) was an excellent example of
how a judge SHOULD decide on the
punishment for someone in an
Armed Robbery case.
So NOW, every judge in an Armed
Robbery case MUST follow what the
judge did in R v Henry (or at least
provide good reasons why he/she
didn’t!).

24. STATUTORY AND
JUDICIAL GUIDELINES
3. GUIDELINE judgements for SOME crimes
So, R v Henry is now a
guideline judgement.
“best example” judgement
“should be followed” judgement

25. STATUTORY AND
JUDICIAL GUIDELINES
4. MANDATORY life sentences for SOME crimes
The NSW government passed the
Crimes Amendment (Murder of Police
Officers) Act 2011.
This means that if a person is found
guilty (by a jury) of murdering a police
officer, the judge has NO DISCRETION in
sentencing the defendant – the judge
must hand down a mandatory LIFE
SENTENCE.

26. STATUTORY AND
JUDICIAL GUIDELINES
4. MANDATORY life sentences for SOME crimes
This was popular, but it created serious justice issues:
1. ‘Is a policeman’s life worth more?’, SMH (2011)
2. Parliaments are not legally allowed to take over the
role of the courts (e.g. by setting an exact sentence,
rather than a range). Get-tough laws erode functions
of justice, SMH, 2011
And in Queensland, they brought in mandatory life sentences for
repeated child sex offenders, which they deserve, but might give the
paedophile an incentive to kill their victim (to prevent being caught and
sent to prison for life).
Queensland child-sex law 'may lead to murder’, The Australian (2012)

27. STATUTORY AND
JUDICIAL GUIDELINES
4. MANDATORY life sentences for SOME crimes
A lot of people argued that this would lead to more mandatory sentences in the future.
They were right.
After the death of Thomas Kelly, and the inadequate sentence given for his killing (R v Loveridge (2013), 4
years non-parole, increased to 7 on appeal), the NSW government passed the Crimes and Other Legislation
Amendment (Assault and Intoxication) Act 2014 to force a mandatory minimum sentence for assaults
causing death while the defendant is intoxicated.
There were supposed to be 9 more offences with mandatory minimums, but the government brought it back
to 6, then the Premier got busted for that wine, so it kind of got lost there in the whole transition (the Bill
was called the Crimes Amendment (Intoxication) Bill 2014, though some version might have passed
whenever you’re reading this).
But it’ll make a comeback any day now, keep checking the facebook page…
Anyway, there are SO many reasons why mandatory sentences are ridiculous, ESPECIALLY those given to
people who are heavily intoxicated and wouldn’t be thinking about the s25B(1) of the Crimes Act at the
time. The government just gave in to public pressure and made permanent changes without even waiting for
the Loveridge appeal. And the law was announced, written and passed in a week because they specifically
wanted the law to apply that weekend. And now we’re stuck with it.

28. STATUTORY AND
JUDICIAL GUIDELINES
4. MANDATORY life sentences for SOME crimes
Success Tip 1 (out of 1): quote Nicholas Cowdery.
Nick Cowdery used to be the DPP in NSW and now he’s a regular commentator for the SMH and
the Legal Studies Association, so all the markers know who he is.
He’s particularly passionate about how shit the idea of mandatory sentencing is, so he’s done
lots of speeches and written lots of articles about it.
So, if you’d like an incredibly in-depth look at mandatory sentencing, and you want to impress
the markers, just find any (or all) of these articles (or just quote the names and say you read
them…):
‘Mandatory Sentencing’, Sydney Law School Distinguished Speakers Program (2014)
Lessons from the Kieran Loveridge Sentence (SMH, 2014)
There’s also an article you can quote from Richard Ackland called ‘Mandatory minimum
sentences are a legal and judicial muddle’ (SMH, 2014).

29. STATUTORY AND
JUDICIAL GUIDELINES
So, our sentencing system is now:
ALL crimes have a maximum punishment (set by statute law)
There are 35 crimes with SNPPs (set by statute law)
There are 22 possible aggravating factors
and 13 possible mitigating factors
that have to be looked at
There are 7 cases (from common law)
that are used as ‘guideline’ judgements
There are some crimes with a mandatory sentence (set by statute
law) (life imprisonment for murdering a police officer + 8 years for
assault causing death while intoxicated)
+

30. SEEM
STUPID
TO
YOU?
Judges
agree!
“You’re almost inviting judges to run the court
like a checklist, ‘Oh, he’s got one, two, three,
four aggravating factors there – he’s only got
three mitigating ones’”
Justice Conlon
‘Putting the Truth into Sentencing’, SMH, 2010
“The gradual increase in ‘law and order’
measures have forced judges to impose higher
sentences for some crimes”
‘Putting the Truth into Sentencing’, SMH, 2010
The legislation setting standard non-parole
periods should be overturned
Justice Reg Blanch
‘Putting the Truth into Sentencing’, SMH, 2010
STATUTORY AND
JUDICIAL GUIDELINES

31. STATUTORY AND
JUDICIAL GUIDELINES
The IMPACT of the SNPP sentencing scheme
on sentencing patterns in NSW
Judicial Commission of NSW, 2010
What effect has this new sentencing system (since 2003) had on
sentencing in NSW?
Did it REALLY make sentencing more consistent?
Or did it just INCREASE penalties?

32. STATUTORY AND
JUDICIAL GUIDELINES
4. SENTENCING AND PUNISHMENT
EVALUATE the effectiveness of sentencing and punishment as a means of achieving justice
STATUTORY AND
JUDICIAL GUIDELINES
Is the system of having SNPPs and guideline judgements for
certain crimes (an increasing number of crimes – increasing each
time a terrible individual crime happens and is on the news) the
best way to achieve justice?
You should have a very good answer for this, because it is a
good tip for the exam.

33. STATUTORY AND
JUDICIAL GUIDELINES
Lucky the NSW Law
Reform Commission’s
wrote a 450-page
report on Sentencing
(Report 139)

34. The big guide to the NSW Law Reform Commission’s 450-page report on Sentencing (Report 139)
The Crimes (Sentencing Procedure) Act 1999 NSWLRC’s recommendations for a NEW Crimes (Sentencing) Act
There are 22 aggravating and 13 mitigating factors in s.21A (difficult to apply
properly; leads to lots of mistakes)
Just have 6 GENERAL factors that the court should look at (e.g. the nature,
circumstances and serious of the offence; the extent of the harm caused; the
offenders character, background and offending history; the extent of any
remorse shown; and the offender’s prospects of rehabilitation)
We have discounts for guilty pleas Keep the discounts and make sure the judge says exactly how much of a
discount was applied
We have a completely ridiculous process for deciding how long someone
should be imprisoned
Go back to the “top down” approach (set the TOTAL sentence first and THEN
decide on the non-parole period, which should be presumed to be 2/3 of the
total sentence – this is like the old ‘Truth in Sentencing’ law from 1989!).
We use standard non-parole periods (which has been controversial, because
they’ve been pretty inconsistent, especially as a % of the maximum sentence
available)
Keep the system of SNPPs, but add more offences (according to which offences
the community wants included)
Short sentences (six months or less) are a pain in the arse because they often
increase re-offending and don’t have any rehabilitative value.
… but we should keep them (???). However, the courts should try to use
community based options instead of imprisonment
A ‘life’ sentence means ‘FOR LIFE’ (no parole ever) We should ALLOW judges (but not require them) to set non-parole periods for
people who get life sentences (just in case they change dramatically). THIS
HAS ALREADY BEEN RULED OUT BY THE ATTORNEY-GENERAL.
‘Home Detention’ and ‘Intensive Correction Orders’ (the things that replaced
period/weekend detention) are underused.
Replace these with a NEW ‘Community Detention Order’ (like a mix between a
good behaviour bond, community service order, treatment/counselling and
possible home detention).
‘Suspended Sentences’ are shit. Replace these with a NEW ‘Community Detention Order’
People are sometimes struggling to pay fines and end up with more serious
penalties because of this
We should allow for ‘suspended fines’.
There are over 10,000 people in NSW prisons We should use imprisonment as a last resort
Aboriginal people are massively overrepresented in Australian prisons Courts should consider whether the person’s Aboriginality is something that
should be taken into account (Talkback radio hosts like Ray Hadley have
already lost their shit about this idea)
We have guideline judgements for a couple of offences The NSW Sentencing Council should be better funded so it can decide on more
guideline judgements

35. The big guide to the NSW Law Reform Commission’s 450-page report on Sentencing (Report 139)
The Crimes (Sentencing Procedure) Act 1999 NSWLRC’s recommendations for a NEW Crimes (Sentencing) Act
There are 22 aggravating and 13 mitigating factors in s.21A (difficult to apply
properly; leads to lots of mistakes)
Just have 6 GENERAL factors that the court should look at (e.g. the nature,
circumstances and serious of the offence; the extent of the harm caused; the
offenders character, background and offending history; the extent of any
remorse shown; and the offender’s prospects of rehabilitation)
We have discounts for guilty pleas Keep the discounts and make sure the judge says exactly how much of a
discount was applied
We have a completely ridiculous process for deciding how long someone
should be imprisoned
Go back to the “top down” approach (set the TOTAL sentence first and THEN
decide on the non-parole period, which should be presumed to be 2/3 of the
total sentence – this is like the old ‘Truth in Sentencing’ law from 1989!).
We use standard non-parole periods (which has been controversial, because
they’ve been pretty inconsistent, especially as a % of the maximum sentence
available)
Keep the system of SNPPs, but add more offences (according to which offences
the community wants included)
Short sentences (six months or less) are a pain in the arse because they often
increase re-offending and don’t have any rehabilitative value.
… but we should keep them (???). However, the courts should try to use
community based options instead of imprisonment
A ‘life’ sentence means ‘FOR LIFE’ (no parole ever) We should ALLOW judges (but not require them) to set non-parole periods for
people who get life sentences (just in case they change dramatically). THIS
HAS ALREADY BEEN RULED OUT BY THE ATTORNEY-GENERAL.
‘Home Detention’ and ‘Intensive Correction Orders’ (the things that replaced
period/weekend detention) are underused.
Replace these with a NEW ‘Community Detention Order’ (like a mix between a
good behaviour bond, community service order, treatment/counselling and
possible home detention).
‘Suspended Sentences’ are shit. Replace these with a NEW ‘Community Detention Order’
People are sometimes struggling to pay fines and end up with more serious
penalties because of this
We should allow for ‘suspended fines’.
There are over 10,000 people in NSW prisons We should use imprisonment as a last resort
Aboriginal people are massively overrepresented in Australian prisons Courts should consider whether the person’s Aboriginality is something that
should be taken into account (Talkback radio hosts like Ray Hadley have
already lost their shit about this idea)
We have guideline judgements for a couple of offences The NSW Sentencing Council should be better funded so it can decide on more
guideline judgements