punishment and sentencing
TRANSCRIPT
Sentencing and PunishmentSection 4 - Crime
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Main Syllabus Points
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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
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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
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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
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KELLI LANE SENTENCING
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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
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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
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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
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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
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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
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The Role of the Victim in Sentencing
Victims can:
Report the crime
Testify at the trial and submit a Victim Impact Statement
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Victims of Crime are recognised under Victims Rights Act 1996 (NSW)
Victim Impact Statements are only used for serious crimes (sexual assault)
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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
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Appeals
Appellant - in an appeal case, the party who is making the appeal
The crown can also appeal against a conviction or sentence
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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
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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
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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
BOND
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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
FINES
PENALTY UNITS
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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
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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
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HINCH HOME DETENTION
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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
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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)
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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
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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
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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
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When sentenced to imprisonment, offender will be given a security classification
Crimes (Administration of Sentences) Act 1999 (NSW)
Post Sentencing Considerations
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SUPERMAX DETENTION CENTRE GOULBURN
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SUPERMAX DETENTION CENTRE GOULBURN
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4 classifications:
Supermax security - Goulburn
8 maximum security - Goulburn (males), Silverwater (females)
13 medium security - Tamworth
10 minimum security
1. SECURITY CLASSIFICATION
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NSW PRISON POPULATION
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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
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FIRST DAY IN PRISON
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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
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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
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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
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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
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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
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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
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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
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ANSWER
a it brings together the offender and the victim so that the offender can see the impact they have
had on the victim
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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
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ANSWER
d to express the effect the crime has hadupon their life
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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
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C) the offender was under the influence ofalcohol or drugs
ANSWER
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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
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ANSWERa) to keep certain offenders out of jail while still severely restricting
their lifestyle
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5. Imprisonment has been shown to:
a) reduce recidivism b) reduce reoffending c) increase reoffending d) increase rehabilitation
ANSWER
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c) increase reoffending
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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.
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B) The convicted person disagrees with their conviction.
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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.
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D) An offender who has committed a first break, enter
and steal.
ANSWER
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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
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b) circle sentencing
ANSWER
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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
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d) that attempts to make an example of an offender to send a
message to the community
ANSWER
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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
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d) all of the above
ANSWER
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11. What is the aim of a diversionary program?
(A) Imprisonment (B) Incapacitation (C) Rehabilitation
(D) Retribution
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(C) Rehabilitation
ANSWER
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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
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(D) The age of the victim
ANSWER
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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.
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(B) They are presented at sentencing.
ANSWER
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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?
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