LAW1114- CRIMINAL LAW TEST 1- SENTENCING

INSTINCTIVE SYNTHESIS

- where a court identifies ALL relevant factors, discusses their significance, and at the end of the process makes a value judgment as to the appropriate sentence given its synthesis of the factors

- It is a discretionary exercise and weight cannot be allocated to the factors in advance.

SENTENCE INDICATION

a statement made by a judge to an accused about the LIKELY sentence they could face (BOTH TIME AND TYPE) if they plead guilty to an offence

SENTENCING

the legal process through which the court determines the appropriate punishment for a person who has pleaded or been found guilty of a criminal offence

- for the general public, sentencing informs their understanding of the criminal justice system and whether its outcomes are fair

Who is responsible for enacting criminal laws and prescribing maximum prison terms?

parliament-

WHAT HAPPENS IN SENTENCING?

- prosecutor and defence counsel make submissions (arguments) about what an appropriate sentence should be in the case

- a magistrate (summary or indictable tried summarily) OR judge (indictable) then makes a decision using 'intuitive/instinctive synthesis' to take many factors into consideration

- COMES TO A CONCLUSION/ FINAL SENTENCE FOR THE GUILTY PERSON

WHAT DOES A SENTENCING HEARING INVOLVE?

- Agreed facts

- Opening is read: features highlighted by prosecutor

- defence submissions: exhibits, witnesses, comparable cases

- prosecution response, including sentencing submission

- lower courts sentenced then and there, higher courts can be days/weeks/months

- often occurs on the same day as the plea hearing

sentencing balances the need for...?

- sentencing balances the need for individualised justice with the expectations of society for punishment -->although society's expectations often skew towards harsher penalties

WHAT FACTORS MAKE SENTENCING DEMANDING FOR JUDGES AND MAGISTRATES?

- sentencing involves punishment which can inflict suffering on the offender

- sentencing is complex and there may be conflicting factors which need to be considered

sentencing requires a large amount of discretion as it is influenced by...?

... the circumstances of the particular case

... how morally blameworthy the offenders actions are according to the sentencer

in victoria where can you find statute-based information relevant to sentencing?

- sentencing act 1991

- crimes act 1958 (e.g. section 3: punishment for murder- 'level 1 imprisonment (life) or imprisonment for such other term as is fixed by the court, as the court determines)

AIM OF SENTENCING ACT (1991) + WHAT IS INCLUDED IN THE ACT

to bring the main powers of courts in relation to sentencing adults under one act and provide statutory guidance for sentencing

INCLUDES:

- the permissible purposes of sentencing

- factors to be taken into accout in sentencing

- types of sentence available

- ranking of the sentences in terms of severity

GUIDELINE JUDGEMENT

since 2003, court of appeal has the ability to give these judgement that go beyond the details of a particular case and suggest more general criteria aimed at ensuring greater clarity and consistency in sentencing

BOLTON V THE QUEEN 2014

-provided the most important judgement about the use of ccos (guideline judgement)

- judgement do not fetter a judge's discretion, but are intended to assist them is applying the law

STATISTICAL INFORMATION AND THE COURTS IN SENTENCING

- can inform the courts assessments of current sentencing practices

- victorian sentencing council publishes a wide variety of statistics on various offenses

- although sentencing can be guided by these, sentencing involves high levels of discretion being fundamentally shaped by the sentencers perception of the moral blameworthiness of the offenders actions/circumstances of the case

when and under what conditions a court may give a sentence indication?

and

what are the effects of a sentence indication?

higher courts:

- an accused can apply for a sentence indication at any point in the proceedings after filing of an indictment (written charges)

- this is only possible if the prosecution consents

in the magistrates' court:

- a sentence indication may be given at any time during proceedings

EFFECT:

clarifies the defendant's prospects on their prospective sentence and dispels any concerns that might be causing the defendant to defer the decision to plead guilty... thereby encouraging an early guilty plea

what are the differences between summary and indictable offences?

summary:

- less serious offences

-heard in magistrates court

- heard by judge

-can be heard without the accused present

indictable:

-more serious offence

-heard in a higher court such as county and supreme courts

- carry higher maximum penalties

- heard by judge and jury

- accused must be present at hearing in court

advantages & disadvantages of sentence indications:

...

informing the court fully is particularly important when...?

...the accused or defendant pleads guilty

--> this is because the full details of the case may not have been heard previously by the judge or magistrate

in sentencing hearings, the role of the prosecution is to...?

- inform the court about the offenders prior convictions

- inform the court of any victim impact statements

- share info that helps the court understand the circumstances of the crime

- make submission that draws on sentencing principles aiming to inform the court of matters necessary to consider in arriving at an appropriate sentence

- can also submit any evidence on current sentencing practices or sentencing for similarly comparable cases

in the sentencing hearings, the role of the counsel for the offender is to...?

MITIGATE THE SENTENCE FOR THE OFFENDER

- give details regarding the good character of the defendant

- persuade the court to pass a less severe sentence

- show that the offender has good future prospects at rehabilitation into society

HOW ARE VICTIM IMPACT STATEMENT MADE?

...

WHAT DO VICTIM IMPACT STATEMENTS INCLUDE?

they include primarily significant negative impacts + evidence of these impacts to the emotional, physical, financial and social areas of the victims life

- things like a letter, poem, drawing, photo or other attachments such as a medical report to support the statements you make about the impact of the crime may be included

PLEA HEARING, WHAT AND WHY?

hearing of the plea in mitigation

- the parties, particularly the offender make submissions in an effort to influence their sentence

WHY?

- it is important that the court is fully informed before passing sentence on the offender

WHAT ARE THE PURPOSES OF SENTENCING?

D- denunciation (of the crime/act itself)

R- rehabilitation (of offender)

D- detterence (of offender + wider community e.g. general/specific)

P- punishment (of offender)

P- protection (of community)

SENTENCING PRINCIPLES THAT MUST BE TAKEN INTO ACCOUNT;

- parsimony

- parity

- mercy

- proportionality

-totality

-concurrence

CONSIDERATIONS TAKEN WHEN SENTENCING

-maximum penalty prescribed for the offence

- current sentencing practices

- nature and gravity of the offence

- impact on the victim

- whether the offender has plead guilty

- offenders previous character

- aggravating & mitigating factors

information about sentencing options for adult offenders in descending order can be found in which document?

section 7 of the sentencing act

why is imprisonment considered to be the last resort for courts?

- it makes rehabilitation much less likely

- it alienates and damages people by taking away their freedom

DISCHARGE ON ADJOURNMENT

where an offender is released with or without a conviction, but must observe certain conditions for a specified period of time

- considered a lower sentence

the principle of parsimony reflects the idea that...?

a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose of sentencing

DISCHARGE AND DISMISSAL

discharge

- section 73 sentencing Act 1991

- sentencer releases the offender with no conditions

- conviction is recorded

dismissal

- section 76 sentencing Act 1991

- sentencer releases the offender with no conditions

- conviction is not recorded

both dismissals and discharges can be unconditional...?

without any further conditions attached

TOTALITY

sentencer must consider the totality of the sentence when an offender is sentenced for several offences arising out of the same set of actions

PROPORTIONATE

Severity of the sentence must be proportionate to the seriousness of the crime

ADJOURNMENT

- The court adjourns proceedings for up to 5 years

- offender is released on special conditions

- at the end of the adjournment period the offender, If the offender has observed all of the conditions then they will be discharged and the matter is considered closed

--> section 72 sentencing Act 1991: conviction is recorded

--> section 75 sentencing Act 1991: conviction is not recorded

DEFERRAL

section 83A sentencing act 1991

- sentencing deferred for up to 12 months to allow offenders to demonstrate rehabilitation

- offender is released (on bail or an undertaking) with no conviction recorded at this time

- at the end of the deferral period the offender returns to court for sentencing, and the sentencer takes into consideration the actions of the offender during this time

- only available in the Magistrates and County Courts

FINES

section 5(7) sentencing act 1991:

'a court must not impose a fine unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a dismissal, discharge or adjournment’

- sections 49-51 sentencing Act 1991

- fines are prescribed as penalty units

•In Victoria, one penalty unit currently equals $192.31

- fines can be imposed with or without recording a conviction

- aggregate fines may be imposed

COMMUNITY CORRECTION ORDERS (CCOs)

section 5(6) sentencing act 1991:

‘a court must not impose a community correction order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by imposing a fine’

- CCOs were introduced in victoria in 2012 and are governed by part 3A of the sentencing act

- in 2014 the DPP asked the Victorian Supreme Court for a guideline judgment on CCOs to aid courts in imposing these new sentencing options in order to promote;

- consistency in their use

- public confidence in the system

- ensure the scheme was operating as intended

THRESHOLD FOR IMPOSING CCOs

1. the offender has been found guilty (with or without a conviction) of an offence punishable by more than a fine of 5 penalty units

2.the court has received a pre-sentence report on the offender

3. the offender has consented to the order (section 37)

IMPRISONMENT

governed by part 3 (div 2) of the sentencing act 1991

- sentencers may (or in some cases must) impose a term of imprisonment

- if the offender is under 21 they may be detained in a youth justice centre

- conviction must be recorded

- non-parole period may be imposed

- single term of imprisonment may be imposed if more than one offence arising from the same facts

- indefinite sentences may be imposed in exceptional circumstances for serious offences (reviewed every three years) pt 3, div 2, subdiv 1A sentencing act

- suspended sentences have been abolished in vic

- last resort

SENTENCING HIERARCHY

1. IMPRISONMENT: parsimony principle = the sentence of last resort

2. DRUG TREATMENT ORDER

3. COMMUNITY CORRECTION ORDER (CCO) – Expanded (Boulton 2014) s.37

4. FINE: ss.49-51

5. ADJOURNMENT Undertaking (good behaviour bond): ss.72 & 75

6. DISMISSAL/DISCHARGE ss.73 & 76

7. DIVERSION