3. STATUTORY AND JUDICIAL
GUIDELINES
• The Crimes (Sentencing Procedure) Act 1999
(NSW) is the primary source of sentencing law
• Maximum and the range of penalties are decided
by parliamentary legislation
• Judicial Discretion - the power of a judge or
magistrate to make a decision within a range of
possibilities
4. • Judicial officers can be
guided by former
judgments where similar
facts have arisen
(precedent)
• Mandatory sentencing -
removal of judicial
discretion, by setting a
minimum or mandatory
sentence for a particular
offence
5. • Crimes and Other Legislation Amendment (Assault and
Intoxication) Act 2014 NSW
• Mandatory minimum 8yr sentence for unlawful fatal
assault (Max 25 yrs) while under influence
• Lockouts, 10pm closing time of bottle shops
• R v Loveridge (Death of Thomas Kelly)
• Death of Daniel Christie
• 7:30 Report
Case Space: Mandatory Sentencing and Alcohol Fueled
Violence
Hint: This is a great case study for law reform, discretion, ethical
standards, balance of rights
8. Hint: These changes were blocked in the legislative council
NSW
Crimes Amendment (Intoxication) Bill 2014
9. Non-Legal Responses
Lobby Campaigns
“Last Drinks” Emergency services campaign, News Ltd “Real
Heroes Walk Away”, Kelly Family Petition
Media
• Major Sydney newspapers ran lengthy campaign labelling the
sentencing as only 4 yrs when in fact it was 7
• Focused on Kings Cross and connected both assaults together
• Commercial media supported reform for tougher laws but as
soon as they were enacted they jumped to defend clubs and
DJ's
News Article 1 News Article 2
11. For Against
Sentences reflect community
standards. Punishment fits the
crime.
lead to injustice due to removal of judge’s
discretion
Reduces crime by being a strong
detterant
Increasing penalties doesn't deter
offenders because they act impulsively not
rationally
Maintaining confidence in the
justice system
Imposes significant costs to the system.
likely to have less guilty please therefore
more trials. Higher prison costs
less severe and less costly can achieve the
same outcome e.g. resources to prevention
programs
Arguments For and Against Mandatory Sentencing
Map of Sydney Entertainment Precinct
12. PURPOSES OF PUNISHMENT
• Specific Deterrence - punishment against an
individual offender aiming to deter them from
committing crime in the future
• General Deterrence - punishment attempting to
make an example of an offender in order to send a
message to the rest of the community
1. Deterrence
15. • Punishment considered to be morally right or
deserved based on the nature of the crime
• This punishment is seen as ‘getting even’ where it
is proportionate to the crime but not done in
violent way
• E.G. Teenager who burnt Australian flag, part of his
punishment was to spend time with RSL members
2. Retribution
16.
17. • an objective of sentencing designed to reform the
offender to prevent them committing offences in
the future
• recidivism - habitual or repeated lapses into crime
• e.g drink driving course, drug rehabilitation
3. Rehabilitation
18. • to make an offender incapable of committing further
offences by restricting their freedom
• Home detention, licence cancellation and
imprisonment (Intensive Correctional Order) are
types of incapacitation
4. Incapacitation
19. FACTORS AFFECTING THE
SENTENCING DECISION
• Aggravating factors - which are circumstances that
make the offence more serious and can lead to an
increased sentence
• gratuitous violence - excessive amount of violence
carried out without reason, cause or excuse
• Mitigating factors - which are circumstances that
make the offence less severe and can lead to a
reduced sentence
20. Mitigating Factors Aggravating Factors
The crime was not planned
The victim was a public
service worker
The offender was provoked by
the victim
The use of threatened violence
using weapons
No previous offences recorded
Record of previous
convictions
The offender is of good character and
unlikely to reoffend
Using gratuitous violence
The offender has show
remorse
The crime was a hate crime
A plea of guilty
Substantial emotional harm to
the victim
The offender assisted the
police
The victim was vulnerable e.g.
Child, disabled
21. • Objective factors -
circumstances of the crime
• Subjective factors - personal
state of mind of the offender
• whether the accused
pleaded guilty
• whether the offender
assisted law enforcement
authorities
• Victim impact statement
from victims of the offence
22. THE ROLE OF THE VICTIM IN
SENTENCING
• Victims can:
• Report the crime
• Testify at the trial and submit a Victim
Impact Statement
Hint: Remember the different roles and involvement the victim
plays in all phases of the criminal justice system
24. • Victims of Crime are recognised under Victims
Rights Act 1996 (NSW)
• Victim Impact Statements are only used for serious
crimes (sexual assault)
25. Positives Negatives
Opportunity for the victim to
express themselves in the
criminal process
can be very subjective yet
have a significant effect on
sentencing
Allows victim to express their
grief and anger publicly
Reduced sentences are given
to offenders in family deaths
because they loved them
Improves the justice of the
victim involved in the crime
Reduces objective factors
from the decision
Hint: This is a classic table to use for the balance of rights regarding
the victim
26. APPEALS
• Appellant - in an appeal case, the party who is
making the appeal
• The crown can also appeal against a conviction or
sentence
27. • Two Types:
• Appeal against conviction
• problems that may have
existed with the
prosecution case
• Sentence appeal
• severity of the
sentence(offender) or
leniency of the sentence
(prosecution) e.g Bilal Skaf
case
28.
29. TYPE OF PENALTIES
• Formal warning without charge issued by police
for less serious offences e.g Young Offenders
Act 1997 (NSW)
• When an offender is charged and found guilty of
the crime but has not been recorded
Caution
No Conviction recorded
31. • Issued by the police outside of
court alleging a criminal
infringement and requiring
payment of a fine
• Compulsory condition imposed
on the offender for a period of
time, which the offender
undertakes to comply with
criminal infringement notice
bond
32. • The most common sentencing option used in
Australia. A fine is a monetary penalty imposed
on an offender and usually applies for less serious
offence
• Specified unit of money used in legislation to
describe the fine payable
Fines
Penalty Units
33.
34. • loss of rights to property or
assets as a penalty for
wrongdoing
• Good behaviour bond where the
offender is released on condition
of good behaviour but placed
under some form of supervision
Forfeiture of Assets
Probation
35. • The offender is sentenced to serve specified
hours of work in the community
• Imprisonment sentence where the offender is
confined to their home under certain conditions
of monitoring
community service order
Home detention
37. • The most severe sentence that
can be imposed in Australia and
is considered a sentence of last
resort
• Imprisonment sentence where
the offender spends a period of
each week or month in prison
and the rest of the time at home
- ceased in 2010
Imprisonment
periodic detention
38.
39.
40. • Strict supervision by Corrective Services NSW for a
period of up to 2 years
• 24/7 electronic monitoring, curfews
• Mandatory testing and rehab programs
Intensive Correction Order (ICO)
41.
42.
43. • Alternative to the traditional court system,
diversionary programs focus on therapeutic
justice and rehabilitation of offenders
diversionary program
Hint: This method is used to deter people away from
correctional facilities
44. ALTERNATIVE METHODS TO
SENTENCING
• Sentencing for some adult Aboriginal
offenders where sentencing is
conducted in a circle of local
community members and a magistrate
• To make it more meaningful to the
offender and improving Aboriginal
confidence in the criminal justice
system (access)
• Aims to reduce recidivism rates
1. Circle Sentencing
46. • Sentencing involving a voluntary conference
between the offender and the victim of the crime
• Offender is given the opportunity to apologise or
make amends for their act
• Highly effective for the rights of the victim and
used through youth justice programs
2. restorative justice
47. POST SENTENCING
CONSIDERATIONS
• When sentenced to imprisonment, offender will be
given a security classification
• Crimes (Administration of Sentences) Act 1999
(NSW)
58. • Provided to offenders who
are suspect from attack
from other prisoners
• offences against
children
• Police officers
• Politicians
• HIV/Aids prisoners
• given information about
other prisoners
2. Protective Custody
61. • Conditional release of a prisoner from custody after the
completion of the minimum term of the sentence
• When released on parole, the parolee needs to meet a parole
officer to maintain their conditions which can include:
• Good Behaviour Bond
• Not Reoffending
• gaining employment
• avoiding company or a specified area
3. Parole
62.
63. • detention of a person in custody without having
committed any offence, in case of some future
harm that they may commit. There are two types:
4. preventative detention
64. • unconstitutional in the High
Court case of Kable v DPP
(1996)
• Terrorism (Police Powers)
Act 2002 (NSW) enacted
legislation
• Decreases the accused
rights
preventative detention without charge
65. • Crimes (Serious Sex Offenders) Act 2006 (NSW)
• Continued detention can be applied by the
attorney general if there is a strong possibility that
they will reoffend
post sentence preventative detention
66. • Established under the Child
Protection (Offenders
Registration) Act 2000 (NSW)
• Minimum 8 years for adult
offenders, 4 years for juveniles
• 2009, there were over 10 500
offenders registered
nationally.
5. sexual offenders registration
67. • Non-Australian citizen who is convicted of a
criminal offence
• Applies to an offender with a sentence of more
than 12 months but has not served more than 10
years
6. Deportation
68. MULTIPLE CHOICE: CRIME
1 Which of the following is true of restorative justice?
a) it brings together the offender and the victim so that the
offender can see the impact they have had on the victim
b) it is the most severe form of punishment
c) it gives the offender the opportunity to confess to the crime
d) it aims to send a message to the rest of society that the law
is serious about crime
69. answer
a it brings together the offender and the victim
so that the offender can see the impact they
have had on the victim
70. 2 The victim’s role in sentencing by
providing a victim impact statement is:
a to tell the offender exactly what they
think
of them
b to influence the judge into giving the
maximum penalty
c to make sure justice is achieved
d to express the effect the crime has had
upon their life
72. 3 Which of the following is not likely to be a
mitigating factor?
a the offender assisted the victim after the
offence
b the offender had experienced similar
treatment in their life
c the offender was under the influence of
alcohol or drugs
d the offender shows contrition or remorse
73. C) the offender was under
the influence of
alcohol or drugs
answer
74. 4 What is the main purpose of the Home Detention
Act 1996 (NSW)?
a to keep certain offenders out of jail while still
severely restricting their lifestyle
b to shame offenders
c to inflict pain and suffering on offenders
d to prevent others from being harmed by
offenders
75. answer a) to keep certain offenders out of
jail while still severely restricting
their lifestyle
76. 5. Imprisonment has been shown to:
a) reduce recidivism
b) reduce reoffending
c) increase reoffending
d) increase rehabilitation
answer
78. 6. Which of the following is not usually grounds for
appeal by the convicted person?
A) Substantial new evidence has become available.
B) The convicted person disagrees with their conviction.
C) There is an error of law that was made by the trial
judge.
D) The judge did not take into account some of the
evidence presented.
80. 7. Which of the following offenders is likely to
be given community service?
A) An offender who commits a minor assault.
B) An offender who has carried out a major
fraud against their employer.
C) An offender who has a second low-range
alcohol driving offence.
D) An offender who has committed a first
break, enter and steal.
81. D) An offender who has
committed a first break, enter
and steal.
answer
82. 8. An alternative method of sentencing utilised
within the NSW criminal justice system is:
a) judges determining sentence
b) circle sentencing
c) restorative injustice
d) juries determining sentences
84. 9. General deterrence involves punishment:
a) against an individual offender aimed at convincing them that
“crime does not pay”
b) considered to be morally right and based on the nature of the
crime
c) that incapacitates offenders from society
d) that attempts to make an example of an offender to send a
message to the community
85. d) that attempts to make an
example of an offender to send a
message to the community
answer
86. 10. Victims may be involved in the criminal justice process
by:
a) reporting the crime
b) providing testimony
c) submitting a victim’s impact statement
d) all of the above
90. 12. Which of the following may be an aggravating
factor when sentencing in a criminal trial?
(A) The offender not being aware of the consequences
of their actions
(B) The offender not planning the crime
(C) The age of the offender
(D) The age of the victim
92. 13. Which of the following is a feature of victim
impact statements in NSW?
(A) They are required by the court.
(B) They are presented at sentencing.
(C) They are used in determining guilt.
(D) They are part of the prosecution case.
94. EXTENDED RESPONSE:CRIME
Evaluate the effectiveness of the criminal
justice system in managing sentencing of
offenders.
To what extent do penalties imposed
during the sentencing process achieve
justice for victims, offenders and society?
