Statutory and Judicial Guidelines - Free Band 6 Resource

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

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 no criminal history

Offender is 22, with little criminal history

Offender is 40 with long criminal history

Weapon was a stick Weapon was a knife Weapon was a shotgun

Impulsive (he “just did it” without any planning)

Some planning (the night before)

Weeks of planning and 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 though there wasn’t much chance the prosecution could have proved their case against him).

Decided to plead guilty because the prosecution had a very strong case.

Decided to plead not guilty, leading to a long and expensive trial.

The judge can’t just pick ANY punishment.

There are GUIDELINES.These guidelines come from

two different places:1. Parliament (Statutory)

2. Previous cases (Judicial)

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.


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’.


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 Debus2nd Reading Speech for the

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2003 (NSW)

WHY???


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

2. STANDARD Non-Parole Periods for SOME crimes

3. GUIDELINE judgements for SOME crimes

4. MANDATORY life sentences for SOME crimes

STATUTORY guidelines



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

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.


FACTORS AFFECTING A SENTENCING

DECISION-Aggravating circumstances-Mitigating circumstances

AGGRAVATINGF A C T O R S

MITIGATINGF 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



DISCUSS factors that affect sentencing

decisions, including the purposes of punishment and the role of the victim



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; and2. Most were completely irrelevant



DISCUSS factors that affect sentencing

decisions, including the purposes of punishment and the role of the victim



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!



There are TWO SEPARATE LAWS that the judge has to follow.

The Crimes (Sentencing Procedure) Act tells the judge the ‘STANDARD Non-Parole Period’. This is what parliament says SHOULD be the “standard” minimum punishment.

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


But this isn’t for every crime! Just SOME!!!

From the Crimes Act

From the C(SP) Act


From the Crimes Act

From the C(SP) Act


2. STANDARD Non-Parole Periods for SOME crimesBut 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



35 crimes with SNPPs (set by statute law)


3. GUIDELINE judgements for SOME crimesNot 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.



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:



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


3. GUIDELINE judgements for SOME crimesBut 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




3. GUIDELINE judgements for SOME crimesThe 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”



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!).



So, R v Henry is now a guideline judgement.

“best example” judgement“should be followed” judgement


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.



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

This was popular, but it created serious justice issues:


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)


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.



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).



There are 35 crimes with SNPPs (set by statute law)

There are 7 cases (from common law) that are used as ‘guideline’ judgements

ALL crimes have a maximum punishment (set by statute law)

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)

So, our sentencing system is now:

There are 22 possible aggravating factorsand 13 possible mitigating factors

that have to be looked at

+

SEEMSTUPIDTOYOU?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



The IMPACT of the SNPP sentencing scheme on sentencing patterns in NSW

Judicial Commission of NSW, 2010What 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?

IT DID BOTH!


4. SENTENCING AND PUNISHMENT

EVALUATE the effectiveness of sentencing and punishment as a means of achieving justice


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.


Lucky the NSW Law Reform Commission’s

wrote a 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

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

The big guide to the NSW Law Reform Commission’s 450-page report on Sentencing (Report 139)

Check the Facebook page to see if

the NSW government has

implemented any of these

(it’s unlikely they’ll go with the

sensible, evidence-based ideas

though…)

Education

Statutory and Judicial Guidelines - Free Band 6 Resource