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Contents
Sentencing and Penalties......................................................................................................................... 1
Purposes of Sentencing (ALRC)........................................................................................................ 1
NSW Legislative Purposes of Punishment.........................................................................................
Confining !udicial "iscretion..............................................................................................................
Sentencing Principles and #ethodologies................................................................................................ $
%ntuitive s&nthesis or t'o tier(............................................................................................................... $
Sentencing Principles............................................................................................................................ )
Sentencing *ptions............................................................................................................................... )
Sentencing and Penalties
Purposes of Sentencing (ALRC)
Retri+ution
o ,hose 'ho engage in criminal activit& deserve to +e punished
o -&e for an -&e
o !ust "eserts
o Punishment should +e proportionate
o Some commentators have .uestioned 'hether this has lead to punitive principles
"eterrence
o A+solute/ presence of C!S deters criminal activit&
o #arginal01eneral/ severit& of punishment 'ill have a decrease in crime. Assumes rationalit&
of offenders 2 not reall& evident in crimes of passion3 &ouths3 drugs3 etc.
o Specific/ deter offender from reoffending +& sho'ing them conse.uences of offending
Reha+ilitation
o *ffenders driven to offend through ps&chiatric3 ps&chological or social forces +e&ond their
control. Address and eliminate causes of criminal +ehavior. Restore them as a la'/a+iding
citi4en
%ncapacitation
o Render incapa+le of reoffending
o Removal of individual5s freedom
o Collective/ reduce crime +& incapacitating more offenders or 6eeping them for longer. Not
ver& successful.
o Selective/ identif& those offenders li6el& to reoffend3 predict future criminalit&
o ,arget ha+itual offenders3 impose additional punishment
o ALRC/ concluded that it 'as no appropriate +ecause it acts in reference to the future
conduct of an offender/ punishment not lin6ed to crime
"enunciation
o Communicate to offender and communit& that la' can not +e flouted
o Reaffirm moral codes of communit&
Restoration
o ,r& to restore situation to 'hat it 'as +efore crime occurred
o %nvolves reha+ilitative elements
o ,hose involved in and effected +& the criminal act are involved in decision ma6ing process
o %ncrease satisfaction3 encourage responsi+ilit&3 address underl&ing causes of crime
*ther
o #a6e offender accounta+le for actions
o Promote sense of responsi+ilit&
o Recognise victims of offences
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NSW Legislative Purposes of Punishment
S7a of Sentencing (Criminal Procedure) Act 1888
a)Ade.uatel& punished
+)"eterrence (s 9 g)
c) Protect communit&
d)Reha+ilitation
e)#a6e accounta+le for actions
f) "enounce act
g)Recogni4e harm to victim and communit&
Veen (No2) (18::)/ these aims can often overlap or conflict
Restoration is not a listed purpose/ ALRC +elieves it should +e
Confining Judicial Discretion
o Calls +& politicians and pu+lic for ;punitive< punishment
o Suggested that moral cohesion is leads to punitive attitudes as people are dou+tful of a+ilit& of
s&stem to reha+ilitate
o 1eneral moves to tr& and limit discretion of courts/ through mandator& sentencing3 grids3 etc
o Pressure on =udiciar& to +e more responsive to pu+lic sentiment
o Attempts to emplo& =udiciar& 'ho share punitive perspectives
Statistical information
o S: !udicial *fficers Act 18:)
o Pu+lish trends in sentencing for particular crimes
o Promote consistenc&
o Pro+lem/ +ased on past statistics3 not focused on individual
o Bloomfield (188:)/ Spiegelman C!/ said to use caution3 more li6el& to indicate if a sentence
is manifestl& e>cessive or inade.uate3 provide general trends. (1uidelines p1??)
Sentencing councils or commissions
o @ of 'hether the& can give advice or onl& research/ interference 'ith =udiciar&
o Crimes (Sentencing Procedure) Act 1888
o mem+ers of police3 =udiciar&3 victims famil&3 communit& mem+ers3 a+original =ustice matters
o advise and consult 'ith minister regarding matters suita+le for guideline =udgment
o monitoring trends
o preparing research
o du+ious/ these people have agendas0+ias/ not +est people to interfere 'ith =udiciar&
Legislative listing of purposes and factors
o Sentencing principles are ver& +road 9 NSWLRC/ sa&s it should continue to +e3 in order to
preserve discretion of =udiciar&
o Sentencing (Criminal Procedure) Act 1888/ +road. S$/ sa&s to consider imprisonment as last
alternative
o Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 sets
out aggrevating and mitigating factors in sentencing s1A 2 p1?/7
o 1A does not replace other considerations3 merel& additional considerations in determining
sentence
o Common la' principles continue to +e applied (eg Wright (188A) mental disa+ilit&)
o R v de Simoni (18:1)/ BCA said can not ta6e into account factors 'hich could 'arrant a
more serious charge3 that 'ould 'arrant a conviction for a more serious offence.
,ruth in sentencing
o Sentencing Act 18:8 (NSW)
o Addresses terms of imprisonment and parole
o A+olished remissions
o Set fi>ed terms of imprisonment
o Legislative formula for calculating non/parole/ C npD E parole
o A+olished presumption in favour of parole
o #ade parole more difficult to o+tain
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o Lead (along 'ith other factors including policing levels) to an increase in sentence lengths
and prison population
1uideline !udgements
o Jurisic (188:)/ 1uideline =udgements introduced in NSWCCA. Fle>i+le means of advising
lo'er courts appropriate sentences. Aims to improve consistenc& and pu+lic confidence.
Preserves discretion +ut provides a non/+inding guideline.
o After !urisic3 there have +een guidelines forG
o Armed Ro++er&/ Benr& H1888I
o Jrea6 and enter/ Ponfield H1888I
o "rug Couriers/ Wong H1888I 2 +een challenged in BCA (see +elo')
o ,a6ing other offences into account / Attorne& 1eneral Application H??I
o 1uilt& Plea "iscount 2 ,homson and Boulton (???)
o Assualt Police/ Attorne& 1eneral Application H??I
o Bigh Range PCA 2 Attorne& 1eneral Application (??K)
o 1uideline !udgements had desired effect of increasing average prison sentences and
decreasing cro'n appeals. %n PCA/ increased severit& and more uniformit&
o Wong (??1)/ BCA disagreed 'ith guideline =udgements
%nconsistent 'ith the legislation5s aim for individuali4ed punishment +& elevating one
matter for sentencing
%nconsistent 'ith Customs Act
found them to have a legislative .ualit& that is not part of =udicial function/ CCA is a
court vested 'ith Chap 7 po'ers
No clear ratio overthro'ing use of 1uideline =udgments
Would prefer .ualitative guideline rather than numerical
Contrar& to common la' principles 9 proportionalit&
o Political response/ amended Crimes (Sentencing Procedure) Act to protect guideline
=udgements.
o ,hought consistenc& and certaint& to +e important3 esp to pu+lic confidence
o !udicial response/ found that there 'as no need to find their guideline =udgments invalid/ a)
ne' statutor& po'er3 +) guideline =udgments not incompati+le 'ith NSW sentencing
legislation3 c) are not so stated that the& remove discretion +ut rather act as a guide not a
rule3 d) no incompati+ilit& 'ith federal =udicial po'er3 e) numerical guidance is not
incompati+le 'ith principles of sentencing
o Whyte H??I 2 reformulated guideline =udgment to +e less prescriptive
-mphasi4ed need for =udicial discretion and individuali4ed =ustice
Sa&s guidance is needed to ensure consistenc& 2 treat li6e cases ali6e3 unli6e
differentl&
Need to ensure pu+lic confidence +& ma6ing process accounta+le and transparent
o Warner (p11$)/ fle>i+ilit& to ensure individuali4ed =ustice. Superior to legislative guidelines
'hich remove too much discretion. Reinforces pu+lic confidence.
o Ponfield (1888)/ recogni4ed that =udicial decisions have economic conse.uences.
o Social and economic conse.uences of sentencing decisions
Standard Non/Parole Periods
o Attempt to change 'here middle of the road is
o Prescriptive +ut not mandator&
o S$Ka of Crimes (sentencing Procedure) Act 1888 2 increased standard non/parole period
from the statistical average
o Applies to crimes in the middle of the range of o+=ective seriousness
o Way H??KI/ provides a statutor& guidepost
"oesn5t create Lstraight/=ac6et5 for =udges
Provide further guidance to =udiciar&
Applies to middle of the range cases onl&/ 'hat this entails is +est left to discretion of
=udge
Relates to o+=ective circumstances of the offence
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Not appropriate for cases 'here defendant pleads guilt&/ the& should get a s
discount
Affirms intuitive s&nthesis as favoured approach
Not appropriate to start 'ith standard NP and then oscillate up or do'n 'ith
aggrevating and mitigating factors. %t is merel& another consideration.
o Ro+ert Bume summari4ed Way +& sa&ingD
Standard NP does not appl& 'here a) case is not middle of range +) there is a plea of
guilt& c) there is some relevant aggrevating or mitigating factor 'hich 'arrants a
different sentence
Where standard NP does not appl&3 then discretion is unfettered3 +ut the Standard
NP acts as a guide
Standard NP is not a starting point
Ba+itual Criminals Legislation
o Ba+itual criminals Act 18$A
o (K) =udge ma& pronounce convicted person a ha+itual criminal/ if had at least previous
imprisonments3 a+ove $ &rs3 on indictment3 satisfied that the individual needs to +e
imprisoned longer to +e reformed to prevent crime
o ()) sentence to +e imposed 2 not less than $ and not more than 1K
o (8) =udge to consider report of Adult Pro+a+tion service
o Fell into disuse until Strong H??7I
o Riley H18A7I 2 found that the decision to e>tend someone5s sentence under the act should
not +e ta6en lightl&3 +ut 'hen there is reasona+le confidence that the offender 'ill resume
offending at the conclusion of the term of imprisonment
o Strong H??7I 2 in first instance/ no pre sentence report3 nothing presented in defence3 no
ps&ch assessment3 K &ear old reports.
Sully JD found the preconditions of the legislation did not demand strict compliance.
Court loath to interfere 'ith earlier courts discretion3 no pro+lem in his reasoning.
Applied Rile&.
Buddin JD valid legislation 'hich must +e applied. Not an a+solute precondition for a
report to +e produced. Applied Rile&. Considered McGarry !"e #ueen (??1)/ $or
t"e decision to %e made to inde$initely imprison someone& all t"e releant data must
%e presented to 'usti$y remoing li%erty o$ prisoner. Found there 'as a miscarriage
+ecause not all data 'as presented.
Preventative detention 9 Selective incapacitation p1)
o Kable (188))/ struc6 do'n +& BCA/ legislation made =udiciar& act as an e>ecutive arm in a
manner incompati+le 'ith a Chap 7 court. Standard of proof/ Lli6el&5 / J*P. Applied onl& to
one man.
o Fardon (??K) 2 standard of proof 2 high degree of pro+a+ilit&. "irected at more than one
person. !udicial discretion. Rules of evidence. A/1 must meet standard of proof. #cBugh !
'ent on to sa& there 'as ver& little states couldn5t do under the constitution to determine
issues of guilt.
o Courts have upheld other pieces of legislation for detention of unla'ful non/citi4ens (Al 6ate+
(??K)) 9 the mentall& ill0insane (Lim (188)) and other reasons. Courts are usuall& Lcautious5
(#cSherr&) or use Lavoidance tactics5 (Richardson 9 Frei+erg) to avoid compl&ing 'ith
legislation.
o Selective incapacitation/ use of longer prison sentences against particular offenders. Limited
evidence to suggest it 'or6s/ Lgap5 filled +& other offenders3 pro+lem of false positives3
punishes for Lfuture5 offences
#andator& Sentencing
o Removes discretion of =udge in determining sentence
o WA/ three stri6es legislation
o -vidence suggests it does not have a deterrent effect3 did not achieve selective
incapacitation3 lead to imprisonment of people for relativel& trivial offences3 hard core serious
offenders 'ere pic6ed up +& normal process an&'a&
o N,/ had mandator& prison sentences for propert& crimes.
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"iscretion moved from =udges to police0prosecutors
"efence 'ould negotiate 'ith P +ehind the scenes/ less transparent and accounta+le
Local communities tried to develop alternative dispute resolution plans
"ecision to la& charges not determined +& crime3 +ut +& potential sentence
(undercharging or charging 'ith a less appropriate sentence)
Negotiate to tr& and get sentences in one +loc
Less visi+le and accounta+le than in court
Jail +eing refused +ecause of potential for mandator& sentence
Mer& e>pensive
"isproportionatel& targeted A+original people and &oung people for ver& minor
offences
Failed to deter3 selectivel& incapacitate or reduce crime
o Attempts to =ustif& on ;e.ual operation of the la'< grounds
"iscriminates on geographical grounds
"o not e.uall& appl& to all crimes eg 'hite collar crime/ racial +ias in crimes selected
Racial +ias in crimes selected e>aser+ated +& selective police and prosecution
%ne.ual access to diversionar& schemes to indigenous &ouths
-.ual application of la' does not produce e.ual results
o Palling and Corfield (18A?)/ found that mandator& sentences are Lunusual5 Lundesira+le5 +ut
not unconstitutional. No =udicial function invaded 'here the =udge must appl& the penalt&
designated +& la'.
o @ of 'hether it undermines %nternational La' under %CCPR and CR*C
Sentencing Principles and Methodologies
ntuitive s!nthesis or t"o tier#
Williscroft H18A$I 2 instinctive s&nthesis of various aspects of process. Su+=ective3 intuitive =udgment
Veen (No ) (18::) 2 sentencing is not purel& logical3 difficult& in 'eighing various concerns. Purposes
can overlap3 can not +e considered in isolation from one another.
%ntuitive s&nthesis/ sho's reluctance of =udiciar& to give up discretion.
Nntil recentl&/ approach in NSW 'as to loo6 at o+=ective features of offence and su+=ective features of
offender0circumstances of offence0agg 9 mit factors
Wong 'arned against using a t'o/tier approach
Thomson; oulton H???I Spiegalman C! emphasi4ed importance of intuitive s&nthesis3 rather than
t'o/tier to +est ta6e into account the competing considerations in sentencing. States guideline =udgments
should +e seen as an influence in intuitive s&nthesis3 not create t'o tiers.
Cameron (??) Oir+& pointed out lac6 of transparenc&/ defendant can5t find out ho' much discount
received for guilt& plea. %f people don5t 6no' the +enefit3 the& 'ill not +e incentivi4ed to plead guilt&.
!raynor ( Potas p)2*+ +elieve t'o tier is advantageous as it +rea6s the comple> facts and
considerations into managea+le parts. *rgani4es thoughts. Assists appeal courts. Allo's decisions to +e
anal&sed and compared. -nhances accounta+ilit&. See no harm in a t'o tier approach 'here an intuitive
decision can +e fine tuned in regard to other considerations. Renders decision process more open3
accounta+le3 provides reasons and ma6es la' seem less idios&ncratic and m&sterious.
Pro+lems 'ith intuitive s&nthesisD
Mague
%nconsistenc&
Lac6s transparenc&
Nnclear in ho' it applies sentencing discounts and statutor& 9 other guidelines
-mphasises +eing an Lart5/ 'hile in realit& is a social0legal0political process3 dependant on culture
and assumptions of legal profession
Lac6 of pu+lic understanding of process/ gives rise to ;popular punitiveness< as people +elieve
=udiciar& to +e unresponsive to communit& needs
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Sentencing Principles
!"RC
Pro#ortionality$ punishment +e reasona+le and proportionate to the crime. -nsures that penalties are
fair and =ust. Restrains ar+itrar& punishment. Prevents a+surdl& e>cessive or lenient sentences.
Parsimony$ %,e%% -.Sullian& the minimum re.uired to achieve outcomes. -nsures restraint3
concern for "5s rights. #a> not necessar&.
Totality %Mill !"e #ueen&$ limitations on e>cess/ ensure that aggregate sentences are not ;crushing<
Consistency %,ong !"e #ueen&$ li6e cases +e treated as ali6e. 1ross inconsistenc& is a6in to
in=ustice. %nconsistenc& has potential to undermine pu+lic confidence. Parit&/ =oint offenders should
receive similar sentences.
'ndi(idualised Justice %/a%le 0PP& ) +road discretion needed to individualise sentence to ta6e into
account all relevant circumstances
Sentences can +e appealed if there 'as an error of la' or manifestl& inade.uate or e>cessive.
Way H??KI/ Spiegalman commented that appellate courts are important in setting decisions 'hich
ensure consistenc&.
Wong/ 1leeson C!/ often need for appellate guidance
Sentencing $ptions
Rising of the court$ nominal penalt& 'here convict must remain in court til ne>t ad=ourned
*ismissal of charges and conditional discharge ) can dismiss charge and order good
+ehavior +ond or participate in treatment program. S)0 o$ Crimes (Sentencing Procedures) Act
)111
+ood beha(ior bond ) enter into a +ond for good +ehavior (s8$). Aims to promote
reha+ilitation.
,on association and #lace restriction orders ) 1AA order to stop fre.uenting a place or
seeing a person
*eferred Sentence ) s11/ !udge0#agistrates ad=ourns ma6ing sentence3 giving individual
opportunit& to attend a treatment program. *ften used for &oung offenders and "rug Court
participants.
Sus#ended sentence ) s1 prison sentence is suspended3 and person is placed on good
+ehavior +ond. %f the& +ehave for given period of time3 the& 'ill not have to attend gaol.
Fines ) s1A 2 sets out 1 penalt& unit as P11?. Fines can +e addition to a good +ehavior +ond
(s1K) or additional to imprisonment (s1$). Argued the& ine.uita+l& impact the poor. Fines act
188)/ s)/ states that the court should have regard for the defendant5s a+ilit& to pa&. Fine
defaulters ma& have license suspended (ss))9)A)3 have propert& sei4ed (sA)3 +e given a
communit& service order (sA8)3 or finall&3 a prison term if CS* +reached (s:A). Fine defaulters
have a significant proportion in prison s&stem. %mpacts the &oung3 female3 indigenous3
unemplo&ed. Reforms have led to a decrease in num+er of fine defaulters in prison.
Probation ) s8 9 11/ conditional +ondG form of supervised release. *ffender supervised +&
pro+ation. Lac6s a formal statutor& pro+ation service. Pro+ation officer assists offender avoid
offending +ehavior3 ac.uire s6ills and plan. #a& include su+stance treatment or +ehavioural
treatment.
Community Ser(ice -rders ) Community Serices -rders Act 18A8 and C"ildren (CS-) Act
18:A. Np to $?? hours of unpaid communit& 'or6. S:)(1)(a)/ court must +e satisfied the
offender is a suita+le person. Carried out under supervision of pro+ation.
Part $ of Crimes (Adminstration o$ Sentences) Act 1888. #a& +e other conditions attached to
CS*3 eg developmental programs or testing for su+stance a+use (s8?())
%f order is +reached3 'ill +e ordered +ac6 to court.
CS*5s underresourced3 high volume of non/compliance has lead to man& heading to =ail/ net
'idening effect.
Periodic *etention 2 imprisonment for not more than 7 &ears can +e served periodicall&.
Periodic detention Act 18A?. S) of Crimes (sentencing procedure) Act 1888. Alternative to full
time detention. -ligi+ilit& determined +& age over 1: (s))(1)(a))3 suita+le person s))(1)(+)3
accommodation availa+le at a periodic detention center s))(1)(d)3 cant +e served concurrentl&
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'ith another pd order s)A. %f +reached the offender completes the rest of the sentence in full
time custod&. @uestiona+le if this is reall& diverting people from full time custod&. Less li6el& for
lo' soc/ec3 homeless3 &oung3 etc than 'ealth&. Bas +enefit of allo'ing individual to +e
reha+ilitated in communit& and continue 'or6ing.
ome detention 2 2ome 0etention Act 188). Not availa+le for a range of offences including
violence offences sA)3 domestic violence cases or AM*s sAA. #ust +e satisfied is a suita+le
person sA:.13 other residents consent A:.1.c. A:.)/ must not +e used if it is li6el& offender 'ill
offend 'hile in detention. %nvolves electronic monitoring3 phone calls3 electronic tags0+racelets.
Bas huge impact on famil& d&namic/ financial +urden shifted from state to famil&. Weighted
to'ards 'hite collar offenders/ poor 'ith unsta+le housing finding it harder to +e eligi+le. Bas
+enefit of allo'ing individual to +e reha+ilitated in communit& and continue 'or6ing.
Restitution 2 Victims Support and re"a%ilitation Act 188) 9 Mictims compensation tri+unal/
provides compensation for victims. Restitution can +e ordered for propert& crime ie stealing
under Criminal Procedure Act 18:) sK7. Propert& sei4ed under Con$iscation o$ Proceeds o$
Crime Act 18:8
'm#risonment 2 s$ of Crimes (sentencing procedures) Act 1888. Short prison sentences have
+een critici4ed as e>pensive3 ineffective3 counter reha+ilitative3 .uestiona+le utilit&.
Would +e cheaper to a+olish short sentences/Q ho'ever fears magistrates 'ould =ust increase
sentences.
NP set at C of total sentence3 ho'ever formula is not +inding (G03 (188K)).
SK$/ court ma& decline to descri+e a NP period.
SK)/ no NP for sentences under ) months.
Sentences under 7 &ears have automatic parole s$?.1.
Sentences can +e served concurrentl&3 consecutivel&3 or part& concurrentl&0consecutivel&
(s$$.19.).
"iffering classifications of prison under Crimes (Adminsitration o$ Sentences) Act 1888 (p1$1)
Possi+el to gain parole under s17$ of Crimes (Ad o$ S) Act 1888 se 1$1/
"ife 'm#risonment %See p)242& 5 S18A (1) 9()/ mandator& imprisonment for natural life.
Crimes (6i$e sentences) Amendment act )1718 @ of human rights8 routes for life imprisonment
p1$K. Criticised on p1$$/ removes prospects of reha+ilitation3 goals3 morale3 cost/ Petroff
(unrep.1881) 9 *enyer H188$I