If a person accused of a criminal offence pleads guilty, or is found guilty after a hearing, then the matter will proceed to sentencing. The sentence is determined by a judge or magistrate, who will decide what sentence is most appropriate after hearing submissions from both the prosecution and defence.
What happens at sentencing?
An offender will be sentenced in the Local Court if he or she pleads guilty to, or is found guilty of, a summary offence.
Sentencing will take place in the District or Supreme Court if the offender pleads guilty to, or is found guilty of, an offence heard on indictment.
Generally, the prosecutor will give the magistrate or judge the facts of the offence, the offender’s criminal record, and information about the applicable law and sentencing statistics. The prosecutor may suggest an appropriate sentence and challenge evidence put forward by the defence.
The accused, or their legal representative, can make submissions which aim to mitigate the level of punishment received. Evidence should be provided to support these claims, including character references and psychiatric or psychological reports.
Sometimes it will be necessary to seek an adjournment to make sure that references and reports are ready, or to give the client time to attend a program, such as the Traffic Offender Intervention Program, counselling, or a drug/alcohol rehabilitation program. The court might also order a Sentencing Assessment Report to assist in determining the most appropriate sentence option.
The court can impose a range of punishments including fines, conditional release orders, community correction orders, intensive correction orders, and full-time imprisonment. For driving offences, the court can order that your vehicle be fitted with an alcohol interlock device and/or disqualify your licence. It is possible for no conviction to be recorded under section 10 of the Crimes (Sentencing Procedure) Act and for the matter to be dismissed.
You can learn more about the types of penalties available here.
Although offences may carry lengthy maximum terms of imprisonment, the maximum penalties are only imposed in the most serious cases. In order for a judge to impose a maximum penalty, he or she must be satisfied that the offender’s behaviour was at the highest end of objective seriousness and that the case can be categorised as being one of the “worst cases” of that kind.
In determining the sentence, a court will consider the objective seriousness of the offence, subjective circumstances of the offender, and the purposes of sentencing.
Objective seriousness of the offence
The objective seriousness is determined by factors specific to each offence. These factors may include:
- Whether weapons were used.
- The degree of violence.
- Whether the offence involved a breach of trust.
- The degree of premeditation and planning.
- For drug-related offences, the quantity and purity of the drug.
- The suffering of the victim.
Subjective circumstances of the offender
The court will also consider the subjective circumstances of the offender, including:
- Mental health issues.
- Family and personal background.
- Age and character.
- Any remorse shown.
- Efforts at rehabilitation.
- Early guilty pleas.
Under the Crimes (Sentencing Procedure) Act 1999, the court must also consider aggravating and mitigating factors. An example of an aggravating factor is that the victim was a police officer. An example of a mitigating factor is that the offender is unlikely to re-offend, and has good prospects of rehabilitation.
Purposes of sentencing
In addition to the objective seriousness of the offence and the subjective circumstances of the offender, when determining what penalty to impose, the judge must consider the following purposes of sentencing:
- To ensure that the offender is adequately punished.
- To prevent crime by deterring the offender and others 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 recognise the harm done to the victim of the crime, and the community.
Sentencing discounts for indictable offences
Entering a plea of guilty for an indictable offence can automatically reduce the sentence. This is called the “utilitarian discount”, and applies because the accused is said to have contributed to the efficiency of the criminal justice system by not taking their matter to trial. The size of the reduction depends on when the accused pled guilty.
The discounts are:
- 25% if the plea is entered in the Local Court before the end of the committal process.
- 10% if the plea is entered up to 14 days before the trial is scheduled to begin.
- 5% if the plea is entered less than 14 days before the trial is scheduled to begin, or during the trial.