The Sentencing Process

What is a sentence?

A sentence is the penalty for committing a crime.
In South Australia, sentencing is the task of a sentencing judge or magistrate in a
 
  • Magistrates Court
  • Youth Court
  • Supreme Court
  • District Court
  • Environment, Resources and Development Court.
 

How do courts decide on a sentence?

Courts cannot simply impose what they think is a fair sentence or do what the public may want. They must follow precedents, and laws set by State Parliament such as the Sentencing Act. They may also consult reports and victim impact statements.
  
Image showing the Sentencing Process 

Precedent

Precedents are decisions made in past trials for similar crimes. They create sentencing principles which courts must follow.
 

Laws

Particular laws may need to be followed depending on the nature of the case. For example the Environment Protection Act may apply in a case involving environmental crime.  
 
Often the court will refer to the Commonwealth Crimes Act or the Criminal Law Consolidation Act. Maximum penalties are fixed by various Acts for particular crimes. For example, there are certain penalties attached to offences committed under the Fisheries Act.
 

Reports

The court may ask for pre-sentence reports from the Department for Correctional Services, a psychologist or psychiatrist, or a specialist in a particular field. Those preparing the report will usually interview the offender, the offender’s family, the victim, employers and others who might be relevant to provide the court with the information it requires. Prosecutors and defence lawyers may also seek pre-sentence reports to present to the court before the court decides on the sentence.
 

Victim Impact Statement

Victims of an offence may present a written statement about the effects of the crime on them. The victim or his/her nominee may read the statement out in court.
 

Sentencing Act

The Court must give equal weight to each part of the Criminal Law (Sentencing) Act.
Only then can the sentence be delivered, with imprisonment as a last resort.
 
 
 
 
Criminal Law (Sentencing) Act
The court must give equal weight to each part of the Act
 
  • the circumstances of the offence
  • other offences that are to be taken into account
  • whether or not the offence is part of a pattern of behaviour of similar criminal acts
  • the personal circumstances of any victim 
  • any injury, loss or damage resulting from the offence
  • the degree to which the offender has shown contrition or made reparation for the offence
  • whether or not the offender has pleaded guilty to the offence
  • the degree to which the offender has cooperated in the investigation of the offence
  • the need to protect the community from the offender's criminal acts
  • the deterrent effect that a sentence may have on the offender or other people
  • the need to ensure that the offender is adequately punished for the offence
  • the character, past history, age, financial situation and physical or mental condition of the offender
  • the rehabilitation of the offender
  • the probable effect of the sentence on dependants of the offender
  • any other relevant matter.
 
 

What sentences are possible? 

Judges and magistrates are trained to be independent. They listen to the prosecution and to the defence and choose from a range of sentences.
 

Imprisonment

Under the Sentencing Act imprisonment is not an option unless the offender has shown violent behaviour towards people, is likely to commit another serious offence, has previously been convicted of an offence punishable by imprisonment, or the offence is so serious that no other punishment would fit the crime.
 
Parole is the release of a prisoner on certain conditions for the remainder of his/her sentence. If the offender is sentenced to imprisonment, the court will set a non-parole period. A non-parole period is the amount of time the offender must serve before being considered for release on parole. At the end of the non-parole period the Parole Board decides whether an offender will be released on parole. The Board considers the prisoner’s behaviour and prospects of rehabilitation.
 
Sometimes, as in the case of a very violent crime, a non-parole period is not set and the person must remain in gaol for the entire prison sentence.
 

Suspended sentence and bond

If the sentence is imprisonment, the court will decide if there is a good reason to suspend the sentence. This might be the case for young first time offenders with reasonable prospects of rehabilitation.
 
Offenders then sign a bond under which they promise to be of good behaviour for a set period of time and to comply with the conditions set out in the bond or promise. They are released, usually under the supervision of a probation officer. If they keep their promise during this time they do not have to go to prison.  If a person breaks the promise he or she is guilty of the offence of breaching the bond. He or she usually has to return to prison, serve out the rest of the original sentence and do extra time for breaching the bond.
 

Fine

A fine is a sum of money that a court orders an offender to pay.
 

Compensation/Confiscation

Compensation is a payment designed to make amends for personal injury, death, or damage to or loss of property. Confiscation is the seizure of goods from an offender eg private property, drugs.
 

What if the court gets it wrong?

If the court makes an error of law or if the sentence is considered to be too high or too low, an appeal can be made against the decision to another court.
 

Sentencing remarks on-line

Judges’ sentencing remarks from the Supreme Court and the District Court are available on-line at www.courts.sa.gov.au (look for the quick link on the home page). The judge’s reasons for the sentence are given in his/her sentencing remarks. These are usually read out to the offender in court. The remarks are then put on the offender’s file. They are usually available within 24 hours of delivery, where possible. Since 2001, sentencing remarks have been published on the courts’ website, where they remain for four weeks.
 
 

This program for schools has been developed through a partnership between the Department for Education and Child Development (DECD) Outreach Education and the Adelaide Magistrates Court. Outreach Education is a team of seconded teachers based in public organisations.

© All Rights Reserved in the State of South Australia.  Adelaide 2012