s
e n t e n c i n g
Sentencing
for multiple offences | Sentences of
imprisonment | Non-parole periods |
Suspended
sentences | Other sentences |
Youth
offenders | Appeals |
Articles about sentencing
The
sentencing process in South Australia begins after either a plea of guilty to a
charge or following a criminal trial in which a person has been convicted.
The
sentencing process the courts follow has to a large extent been determined by
Parliament in the Criminal Law
(Sentencing) Act (“the Sentencing Act”). The Sentencing Act sets out a
list of matters to which the Court must have regard when sentencing a convicted
person. These are:
1.
the circumstances of the offence;
2.
other offences that are to be taken into account;
3.
if the offence forms part of a course of conduct consisting of a series
of criminal acts of the same or similar character, that course of conduct;
4.
the personal circumstances of any victim of the offence, for which
purpose a victim impact statement may be read to the court;
5.
any injury, loss or damage resulting from the offence;
6.
in the case of an offence committed by an intruder in the home of
another, the need to give proper effect to what is described as ‘the primary
policy of the criminal law’ to protect the security of the lawful occupants
of the home from intruders;
7.
the degree to which the defendant has shown contrition for the offence
- by taking action to make reparation for any injury, loss or damage resulting
from the offence or in any other way;
8.
if the defendant has pleaded guilty to the offence - that fact;
9.
the degree to which the defendant has cooperated in the investigation
of the offence;
10.
the need to protect the community from the defendant’s criminal acts;
11.
the deterrent effect any sentence may have on the defendant or other
persons;
12.
the need to ensure that the defendant is adequately punished for the
offence;
13.
the nature and extent of any ordered forfeiture of property (other than
that which is a benefit derived from the offence.)
14.
the character, antecedents (prior events), age, means and physical or
mental condition of the defendant;
15.
the rehabilitation of the defendant;
16.
the probable effect of the sentence on dependants of the defendant; and
17.
any other relevant matter.”
As
the list shows the Court must take into account a wide range of factors relating
to the defendant, the victims and the community.
The
court may use pre-sentence reports. These are prepared expressly for that
purpose by professionals, for example, psychiatrists or social workers. They may
interview the victims and their families. The Court also has regard to Victim
Impact Statements.
The
court must also consider the penalty fixed for the offence. An Act of Parliament
usually fixes a maximum penalty for the offence. For example, section 131 of
Criminal Law Consolidation Act sets out the maximum penalty for larceny at five
years imprisonment.
The
sentencing process is complex because so many matters have to be considered.
A lot
of what the court must consider is personal to the defendant, such as prospects
of rehabilitation and personal background, so there can be some variation
between sentences imposed on different people for the same offences. However,
consistency in sentencing practice is ensured by using precedents, that is,
earlier decisions about sentences for the same offence.
Judges
give reasons for the sentences they impose. These record the issues that the
judge took into account in reaching their conclusion regarding a sentence. These
are known generally as “sentencing remarks”.
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The
Sentencing Act states that a sentence of imprisonment
may only be imposed if a sentence of imprisonment is necessary to give
effect to the policy of protection of the security of home occupiers from
intruders or if, “in the opinion of the court -
(i) the defendant has shown a tendency to violence
towards other persons; or
(ii)
the defendant is likely to commit a serious offence if allowed to go at
large; or
(iii)
the defendant has previously been convicted of an offence punishable by
imprisonment; or
(iv)
any other sentence would be inappropriate, having regard to the gravity
or circumstances of the offence.”
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Non-parole
periods
If a
person is sentenced to imprisonment for more than 12 months, a court must also
fix a time before which the offender can not be considered for parole. This is
referred to as a non-parole period. This is the time which the defendant must
serve in prison before he or she can be considered for release on parole into
the community. If the offender, when he or she comes to be sentenced, already
has another non-parole period, that non-parole period is reassessed at the time
of the imposition of the second sentence, and the earlier non-parole period is
extended.
In
fixing the non-parole period, the court considers such matters as the
offender’s age, personal circumstances and rehabilitation prospects.
The
non-parole period is used, as it were, as a sentence to hang over the head of
the offender. An offender is sentenced, for example, to five years’
imprisonment, with three years non-parole. Following the non-parole period the
defendant may apply for parole. The Parole Board of South Australia will make a
decision as to whether or the defendant may be released and on what conditions.
The defendant may be sent back to prison if he or she breaches a condition of
the parole.
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Suspended
sentences
Generally
speaking, imprisonment is reserved for serious crimes, or people who have by
repeated offending, demonstrated that they are poor candidates for
rehabilitation.
The Sentencing
Act states that once the decision has been made to sentence an offender to
imprisonment, the court may consider whether or not it is appropriate in the
particular circumstances to suspend the sentence. Courts throughout Australia
have similar powers. The court may suspend a sentence “if it thinks that good
reason exists for doing so”. The sentence is suspended on condition that the
offender enter into a bond to be of good behaviour and complies with any other
conditions which the court might impose.
Usually
a condition of the bond will be that the offender is placed under the
supervision of a community corrections officer and is obliged to comply with any
directions given by the officer. Common conditions limit who the defendant may
associate with, require abstinence from dugs or alcohol, attendance at
rehabilitation programs and courses, the payment of compensation to the victim
and performance of community service. A suspended sentence is a sentence of
imprisonment. The effect of suspending is only that the sentence will not be
served if the person abides by the bond. A suspended sentence endeavours to
balance the interests of the community in seeing that appropriate punishment has
been meted out against the need to offer a reasonable prospect of rehabilitation
to the offender. Particularly in the case of young or first offenders, the court
attempts to find a sentence short of actual imprisonment.
Though
a sentence of imprisonment is suspended, the sentence of imprisonment may still
become effective. A breach of the terms of the bond may have the effect of
terminating the suspension and the defendant may be required to serve the term
of the imprisonment. A breach of the terms of the bond will necessitate the
offender appearing in court. The court then examines the breach. For non-trivial
breaches of the bond, for example the commission of another offence, this will
result in an order that the gaol sentence then be served.
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Imprisonment
is the most serious punishment that can be imposed under the Sentencing Act.
For
most offences the Court has power to impose a less serious punishment, and for
many offences the most serious punishment that can be imposed is a fine. Less serious offences include a fine, a bond (not
as a condition of a suspended sentence), or an order for the performance of
community service. A community
service order may be made by way of punishment in an appropriate case, or
included as a condition of a bond. A
community service order requires the offender to complete a number of hours of
community service, within a period not exceeding 18 months. The community service is performed under supervision.
Courts also have power to make orders for restitution of property and for
the payment of compensation.
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An
offender under the age of 18 years (“a young offender”) is usually dealt
with by the Youth Court. Special
provisions apply to the sentencing of young offenders.
These provisions are found in the Young
Offenders Act.
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Decisions
imposing sentences and non-parole periods may be appealed to a higher court.
Such appeals are heard in the Supreme Court by the Court of Criminal Appeal.
This Court consists of 3 judges.
A
defendant may appeal against a sentence. To be successful the defendant must
identify some error of fact or law in the decision of the sentencing judge. For
example, such an error may be the incorrect application of sentencing principles
or a sentence that is manifestly excessive having regard to the circumstances of
the offending. The Court of Criminal Appeal may set aside the decision of the
lower Court and impose a new sentence.
The
Director of Public Prosecutions (DPP) may appeal to the Court of Criminal Appeal
against the sentence. Likewise, the DPP must identify some error of law to
justify the courts interference. For example, the Director may identify an error
leading to the sentence being manifestly inadequate.
Click
here for the complete text of the Sentencing Act.
Articles
on the sentencing process
The
sentencing process and appealing a sentence
Suspended sentences
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