Punishment and Sentencing

Sentencing and PunishmentSection 4 - Crime

1Monday, 13 August 2012

Main Syllabus Points

Statutory and Judicial Guidelines

The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law

Maximum penalties are decided by parliamentary legislation

Judicial Discretion - the power of a judge or magistrate to make a decision within a range of possibilities

Judicial officers can be guided by former judgments where similar facts have arisen

Mandatory sentencing - removal of judicial discretion, by setting a minimum or mandatory sentence for a particular offence

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

DETERRENCE

KELLI LANE SENTENCING

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

1. RETRIBUTION

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

2. REHABILITATION

to make an offender incapable of committing further offences by restricting their freedom

Home detention, licence cancellation and imprisonment are types of incapacitation

3. INCAPACITATION

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

remorse - deep regret or sorrow for one’s wrongdoing

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

The Role of the Victim in Sentencing

Victims can:

Report the crime

Testify at the trial and submit a Victim Impact Statement

Victims of Crime are recognised under Victims Rights Act 1996 (NSW)

Victim Impact Statements are only used for serious crimes (sexual assault)

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

Appeals

Appellant - in an appeal case, the party who is making the appeal

The crown can also appeal against a conviction or sentence

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

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

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

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

PENALTY UNITS

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

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

HINCH HOME DETENTION

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

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)

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

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

Alternative Methods to Sentencing

1. CIRCLE SENTENCING

CIRCLE SENTENCING NSW27Monday, 13 August 2012

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

When sentenced to imprisonment, offender will be given a security classification

Crimes (Administration of Sentences) Act 1999 (NSW)

Post Sentencing Considerations

SUPERMAX DETENTION CENTRE GOULBURN

4 classifications:

Supermax security - Goulburn

8 maximum security - Goulburn (males), Silverwater (females)

13 medium security - Tamworth

10 minimum security

1. SECURITY CLASSIFICATION

NSW PRISON POPULATION

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

FIRST DAY IN PRISON

Conditional release of a prisoner from custody after the completion of the minimum term of the sentence

When releases 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

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

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

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

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

Non-Australian citizen who is convicted of a criminal offence

applies to an offender with a sentence of more than 12months but has not served more then 10 years

6. DEPORTATION

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

ANSWER

a it brings together the offender and the victim so that the offender can see the impact they have

had on the victim

2 The victim’s role in sentencing by providing a victim impact statement is:

a to tell the offender exactly what they thinkof them

b to influence the judge into giving themaximum penalty

c to make sure justice is achieved

d to express the effect the crime has hadupon their life

ANSWER

d to express the effect the crime has hadupon their life

3 Which of the following is not likely to be a mitigating factor?

a the offender assisted the victim after theoffence

b the offender had experienced similartreatment in their life

c the offender was under the influence ofalcohol or drugs

d the offender shows contrition or remorse

C) the offender was under the influence ofalcohol or drugs

ANSWER

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 byoffenders

ANSWERa) to keep certain offenders out of jail while still severely restricting

their lifestyle

5. Imprisonment has been shown to:

a) reduce recidivism b) reduce reoffending c) increase reoffending d) increase rehabilitation

ANSWER

c) increase reoffending

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.

B) The convicted person disagrees with their conviction.

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.

D) An offender who has committed a first break, enter

and steal.

ANSWER

8. An alternative method of sentencing utilised within the NSW criminal justice system is:

a) judges determining sentenceb) circle sentencing

c) restorative injusticed) juries determining sentences

b) circle sentencing

ANSWER

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 crimec) that incapacitates offenders from societyd) that attempts to make an example of an offender to send a message to the community

d) that attempts to make an example of an offender to send a

message to the community

ANSWER

10. Victims may be involved in the criminal justice process by:

a) reporting the crimeb) providing testimony

c) submitting a victim’s impact statementd) all of the above

d) all of the above

ANSWER

11. What is the aim of a diversionary program?

(A) Imprisonment (B) Incapacitation (C) Rehabilitation

(D) Retribution

(C) Rehabilitation

ANSWER

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

(D) The age of the victim

ANSWER

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.

(B) They are presented at sentencing.

ANSWER

Extended Response:CrimeEvaluate 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?

Punishment and Sentencing

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