The most common question that my clients ask me as a criminal defence lawyer is about penalties.
Majority of people who come before the courts in relation to criminal matters plead guilty to the charge. In recent years, sentencing law has become a specific skill to be utilised by criminal lawyers on behalf of their client. The Parliament of NSW enacted the Crimes (Sentencing Procedure) Act in 1999 and what has followed has been a persistent evolution of complex sentencing law in this State.
This was not always the case, however the days of your friendly neighbourhood solicitor trotting down to the courthouse to appear on behalf of a client for whose family that solicitor also does wills; conveyance work and divorce are perhaps over. That is not to say the friendly neighbourhood solicitor is not capable of doing a good job, however, both magistrates and Judges passing sentence in even common place matters such as drink driving offences make reference to a whole new body of law.
To get the best hearing they can, the client needs to make sure they retain the services of an accredited specialist who appears in criminal cases on a daily basis.
The Crimes (Sentencing Procedure) Act 1999 is the starting point for a court in imposing a sentence on a person who is either found guilty of a criminal offence or has pleaded guilty.
Prior to the Act being introduced into our legal system, the methodology used by courts was what might be called an instinctive one, relying upon principles (in many cases) handed down in higher courts. However there was a question as to whether there was sufficient fairness and uniformity in the process, as human nature provides that different people will interpret the same set of facts in sometimes, vastly different ways.
The purpose of sentencing is clearly set out in the Act:
One of the cornerstones of sentencing law is that part of the reason that we punish people as part of our civilised society is to deter them from committing offences that adversely affect other members of the community.
The court imposing the sentence will be looking to send a message to the person who has actually committed the offence by the penalty imposed, the severity of that message will depend on the seriousness of the offence.
At the same time, general deterrence will be the reason the court hands down a punishment that will send a message to deter others in the community from committing that type of offence.
A classic example of this was the jail sentences handed down to the men involved in the ‘Cronulla Riots'. They wouldn't necessarily have been jailed had it not been for the purpose of sending a message to people involved in that particular type of behaviour.
Whether this approach works or not is a discussion for another web page but nevertheless, it is the law in New South Wales.
The first question for a court to consider is whether or not the seriousness of the offence calls for a custodial sentence to be imposed. The court will then consider whether or not that a full-time custodial sentence needs to be imposed, there should be a 3 stage process undertaken by the Judge or magistrate.
Firstly, the court has to determine that no punishment is appropriate other than a sentence of imprisonment.
Secondly, if a court determines that a sentence of imprisonment must be imposed, the court must first determine the length of the sentence. That determination should be made without regard to the manner in which the sentence is to be served.
Thirdly, the court must then consider whether any of the alternatives to full time imprisonment are available:
The court can impose the following sentences:
This is a quaint old fashioned approach that we don't see too much these days. Upon an offence being proven, the magistrate may consider that coming to court is sufficient punishment. The defendant is sentenced to remain in custody until the rising of the court'. The magistrate would immediately deem the court to have risen.
This is where the magistrate or Judge considers it inexpedient to impose punishment or record a conviction against the defendant.
The most common example of the importance of this for a person before the court is where they are charged with a drink driving offence that carries with it an automatic period of disqualification upon conviction.
If the Court exercises its discretion and does not impose a ‘conviction' then the person will not lose their licence.
The other major reason people become concerned about convictions being recorded against their name is arises out of a legitimate concern over employment checks in the future or travel to certain countries.
The fact is the nature of our society means much more information is recorded on police computer systems than ever before. It will always be there. However, if it is recorded as a non conviction, there is a degree of context.
The sentencing Act sets out some criteria for the court to take into account in considering whether or not a conviction should be imposed:
This list is not exhaustive. There may be many and varied issues that a defence lawyer can put before the court in order to persuade the magistrate or Judge that it is appropriate to exercise the discretion of the Court. If the offence is not trivial, is does not necessarily follow that s. 10 cannot be applied
The Court may either dismiss the case outright or place the person on a good behaviour bond for up to (2) years with the same kind of conditions as mentioned in section 9 bond below.
If the person is placed on a good behaviour and they breach the bond they will (as above) be called back before the magistrate who placed them on the bond. It is hard to imagine the person escaping a conviction on the second occasion.
If the court records a conviction against the defendant it can impose a good behaviour bond under section 9 of the Act. In short, the bond is a conditional release of the person from the court upon them signing an undertaking that they will be of good behaviour for the term of the bond. In the Local Court, the bond can be for up to (2) years. Other conditions might include:
Once the bond has expired, so do the conditions.
However, if the bond is breached, the person may be called back before the magistrate or judge who placed them on the bond to be re-sentenced. This is rarely a good thing for the defendant as the magistrate or Judge may view the breach of a bond as a breach of trust extended by the court. Any ‘new' offence which leads to the bond being breached and called up for re-sentencing will be aggravated because it was committed whilst the person was on conditional liberty, in other words, subject to a good behaviour bond.
Various legislation that creates a criminal offence will prescribe a limit for any fine to be imposed. In working out the fines, it is important to bear in mind that the term 'penalty unit' is currently defined as being $110.
A Community Service Order (CSO) is a direct alternative to a full time custodial sentence. This will be imposed only when the person has been accessed as suitable by the NSW Probation Service. The person's work circumstances, health or family commitments may render the person ineligible.
If the person does not complete the hours of work as directed or does not follow the reasonable directions of the supervising Probation Officer, the Probation Service may issue a breach Notice to the person which will result in the matter being brought back before the magistrate who imposed the order and may result in the imposition of a full time jail sentence.
This is a relatively recent development in government sentencing policy and in essence replaces ‘weekend' or Periodic Detention'.
It is considered to be a more serious direct alternative to full time custody and involves close supervision during the course of the order by the Probation Service including the attendance of training, lifestyle and counselling programs, restrictions on travel and movement together with a community work component.
Like the CSO, the person must first be assessed as suitable by the Probation Service.
However, unlike the CSO, if the person breaches an ICO, that breach is considered by the New South Wales Parole Board and not the sentencing magistrate.
The total sentence must not exceed 2 years otherwise an ICO cannot be imposed. Further, certain types of sexual offences cannot be dealt with by way of an ICO.
Once a person has been sentenced to a term of full time imprisonment by a court, the defendant can request that the court consider assessing the person for home detention. This involves a separate assessment by the Probation Service.
If the person is assessed suitable for home detention the sentencing court will bring the case back before it and confirm the terms of the detention. Sentences for murder, attempted murder, manslaughter, sexual assault, armed robbery; firearms offences, assault occasioning actual bodily harm or stalking cannot be served this way.
A sentence of home detention cannot be imposed if the person has a record for any of the last mentioned offences, or has been convicted of a domestic violence offence or had an AVO made in the past 5 years where the victim lives at the intended address.
A court may defer passing sentence for a period of up to 12 months from the date of conviction to allow the offender to be assessed for rehabilitation, or to demonstrate that rehabilitation has taken place, or for any other purpose: This used to be referred to as a 'Griffiths remand''.
Should the court consider that a custodial sentence is called for in the case, it may impose a jail term un the person but suspend it on the condition the person enter a good behaviour bond.
That good behaviour bond will also have conditions attached to it, the first and foremost being that the person is to be of ‘good behaviour'. They may also have to accept the supervision and direction of the NSW Probation Service.
If the person breaches the s.12 bond, the court must revoke the bond and sentence them to either full time imprisonment, home detention or and Intensive Corrections Order (ICO) unless there is good reason not to revoke the good behaviour bond.
The general approach taken by the Court to sentencing a person to imprisonment is that the Court has to determine that no punishments is appropriate other than a sentence of imprisonment. If the Court determines that a sentence of imprisonment must be imposed, it must first determine the length of the sentence. That determination should be made without regard to the manner in which the sentence is to be served (Suspended sentence, CSO, ICO).
Then, the court must then consider whether any of the alternatives to full time imprisonment are available:
If the Court comes to the conclusion that there is no other alternative other than full time imprisonment, then depending upon the length of the sentence, the Court may set a head sentence '(the total term) then a non parole period (the time spent in custody) and finally an additional term (time spent on parole.
Normally, if the length of the sentence is such that a non parole period has to be set, the length of that non parole period (actual jail time) should be at least 2/3 of the head sentence; unless, the Court makes a finding of special circumstances which allows the sentencing Judge or magistrate to reduce that 2/3 ratio.
The sentencing Act lists specific elements of aggravation (that increase the seriousness of the offence) and mitigating features (which can reduce the penalty).
Each of these factors is subject to challenge and clarification in the NSW Supreme Court and evolves as an area of law.
Accordingly, it is very important that your lawyer is aware of the current law in relation to this ever expanding and increasingly complicated area of the law.
The aggravating factors to be taken into account are:
The following mitigating factors are to be taken into account:
This list is not exhaustive.
Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.
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