The most common question that I get asked as a criminal defence lawyer by my clients is “what do you think I will get"?
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 Purpose of Sentencing
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:
- to ensure that the offender is adequately punished for the offence,
- to prevent crime by deterring the offender and other persons from committing similar offences,
- to protect the community from the offender,
- to promote the rehabilitation of the offender,
- to make the offender accountable for his or her actions,
- to denounce the conduct of the offender,
- to recognize the harm done to the victim of the crime and the community.
Specific and general deterrence
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.
How does the Court Approach the Sentencing Process?
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:
- home detention if the total sentence is under 18 months,
- suspended sentence if the total sentence is under 2 years,
- An Intensive Corrections Order (ICO) if the total sentence is under 3 years.
Types of sentence imposed
The court can impose the following sentences:
- rising of the court,
- dismissal and conditional discharge - Section 10,
- bond - Section.9,
- community service order - CSO,
- intensive correction order - ICO,
- home detention,
- Deferred Sentence (Griffiths Remand),
- suspended sentence - Section.12,
- full time custodial imprisonment.
Rising of the Court
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.
Dismissal or conditional discharge: - Section 10 of the Crimes (Sentencing Procedure) Act 1999.
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:
- the person's character, antecedents, age, health and mental condition,
- the trivial nature of the offence,
- the extenuating circumstances in which the offence was committed,
- any other matter that the court thinks proper to consider.
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.
Conviction and good behaviour bond
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:
- the person appear for sentence back before the magistrate if called upon,
- the person accept the directions or counselling as requested by the Probation Service,
- the person not assault molest or harass another person,
- the person comply with a treatment plan or medication regime of a medical practitioner.
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.
Community Service Order - CSO
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.
Intensive Correction Order - ICO
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.
Deferred Sentence - Section 11
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''.
Suspended Sentence - Section 12
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.
Full time imprisonment
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:
- home detention if the total sentence is under 18 months,
- suspended sentence if the total sentence is under 2 years,
- ICO if the total sentence is under 2 years.
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.
Aggravating and mitigating features
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 victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victims occupation,
- the offence involved the actual or threatened use of violence,
- the offence involved the actual or threatened use of a weapon,
- the offence involved the actual or threatened use of explosives or a chemical or biological agent,
- the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
- the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
- the offence was committed in company,
- the offence was committed in the presence of a child under 18 years of age,
- the offence was committed in the home of the victim or any other person,
- the offence involved gratuitous cruelty,
- the injury, emotional harm, loss or damage caused by the offence was substantial,
- the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
- the offence was committed without regard for public safety,
- the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
- the offence involved a grave risk of death to another person or persons,
- the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
- the offender abused a position of trust or authority in relation to the victim,
- the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant),
- the offence involved multiple victims or a series of criminal acts,
- the offence was part of a planned or organized criminal activity,
- the offence was committed for financial gain.
The following mitigating factors are to be taken into account:
- the injury, emotional harm, loss or damage caused by the offence was not substantial,
- the offence was not part of a planned or organized criminal activity,
- the offender was provoked by the victim,
- the offender was acting under duress,
- the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character,
- the offender is unlikely to re-offend,
- the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
- the remorse shown by the offender for the offence, but only if:
- the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
- the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
- the offender was not fully aware of the consequences of his or her actions because of the offenders age or any disability,
- a plea of guilty by the offender (as provided by section 22),
- the degree of pre-trial disclosure by the defence (as provided by section 22A),
- assistance by the offender to law enforcement authorities (as provided by section 23).
This list is not exhaustive.
Contact Sharon Ramsden on firstname.lastname@example.org or phone (02) 4626 5077.