Sentencing and Punishment Flashcards

McCartney v The Queen 2009

This case established important precedents regarding the sentencing powers of the courts concerning mitigating factors and the interpretation of the Act.
General Deterrence: The judge emphasised the importance of sending a message to the community that sexual assault is unacceptable. However, deterrence was not the overriding factor.
Aggravating Factors: The nature and seriousness of the offence, along with the impact on the victim, were significant aggravating factors. The victim impact statement played a crucial role in highlighting the distress caused to the victim.
Mitigating Factors: The offender's young age, lack of criminal history, steady employment, and strong character references were considered mitigating factors. The guilty plea also resulted in a reduced sentence.
Intoxication: The judge firmly stated that intoxication was not a mitigating factor and did not excuse the behaviour, especially since the offender was capable of driving.
Rehabilitation: The offender's consultation with an alcohol counsellor was noted, and the judge suggested further help in this area to assist rehabilitation.
Appeal Dismissal: The Court of Criminal Appeal dismissed the appeal, stating that the judge had not erred in considering the sentencing factors and that the sentence

Drug court of NSW ‘A Prosecutors View’

Former DPP Nicholas Cowdery strongly objected to the concept of deterrence and recommended education and social programs to deter people from crime.
Suggested little evidence that harsher penalties have and deterrent effect and could have a reverse recidivism effect
Suggestions of circle sentencing and Drug court are more effective methods of deterrence.

Sentencing is influenced by ‘The Crimes (Sentencing Procedure) Act 1999)
The act is the primary source of sentencing law
Maximum penalties for a crime differ as on the crime
The maximum penalty for a crime is decided by parliament in statute law and found in the legislation
For example Crimes Act 1900 states that the maximum penalty for murder is life imprisonment
The Sentencing Procedure Act clearly states that the court cannot impose a prison sentence unless no other punishment is appropriate
Judges will determine the most appropriate sentence using their Judicial Discretion
Judicial officers can be guided by the principle of ‘Stare Decisis’. Gives option
Some crimes have to be punished regardless of mitigating factors. Mandatory sentencing is used as a deterrent
Mandatory sentencing carries a mandated punishment of 25 25-year’ non-parole period. Separation of Powers

A deterrent is something that discourages or tries to discourage someone from doing something.
In 1988, the ALRC recommended that deterrence not be included as an objective in sentencing.
As a result deterrence was not included as a purpose in the ‘Crimes Act 1914 (CTH)’
Former DPP Nicholas Cowdery strongly objected to the concept of deterrence and recommended education and social programs to deter people from crime.
Suggested little evidence that harsher penalties have and deterrent effect and could have a reverse recidivism effect
Suggestions of circle sentencing and Drug court are more effective methods of deterrence.
Media report by Drug Court of NSW ‘A Prosecutor’s Views’ that shows Nicholas Cowdery’s view on deterrence

Specific
- Specific deterrence is a punishment that aims to deter a,n individual offender from committing more crimes in the future
General
- General deterrence is a punishment aimed at making an example out of an individual offender to show others that the crime is serious and will be punished. Procedural fairness of the individual does not showing justice
- Does not show procedural fairness

Retribution is an important factor in sentencing as it refers to whether a punishment is morally right or not.
Retribution is related to the concept of ‘getting even’, but is different as it is society getting retribution on behalf of the victim in an impartial manner.
It aims to ensure that the punishment fits the crime but does not harm the offender.
The Crimes Amendment Act was amended to make ‘The Crimes Amendment (Aggravated Sexual Assault in Company) Act’ to enforce harsher penalties and ensure retribution for victims and the community.

Rehabilitation is similar to deterrence as it aims to discourage future offences, but does it by attempting to alter the offender’s views
The main aim is to prevent recidivism and keep people out of the system
Rehabilitation can involve drug programs, alcohol programs, and mental health programs.
Rehabilitation will rarely be the prime focus of consideration for severe offences
Section 3a of the Crime (Sentencing and Procedures) Act states that sentences are not to punish offenders but to help offenders
reintegrate into society successfully, emphasising the importance of social support systems and vocational training in reducing the likelihood of reoffending.

Incapacitation is protecting a community from an offender
Under the Crimes (Sentencing and Procedure) Act 1999, incapacitation prevents an offender from committing further offences
Not always jail (community work, suspended licence)
The purpose is to restrict as much as necessary to reduce the likelihood of the offender committing another similar offence
Due to the severity of incapacitation, the likeliness of reoffending is considered for every offender

When issuing a sentence, the judicial officer takes into account aggravating and mitigating factors.
All factors will be considered, but not all will affect the sentence, especially given the type of offence.
Section 21a of the ‘Crimes (Sentencing Procedure) Act 1999 states that aggravating and mitigating factors need to be taken into account when considering a sentence.
Aggravating factors
- Circumstances that make a crime worse and can increase the sentence of an offender
- Aggravating factors can be: the way the offence was committed (gratuitous violence), the character of the offender (previous offender).
- The three components of aggravating factors are;
  - The offence
  - The victim; if the victim was vulnerable
  - Offender; did the offender abuse a position of power of trust
Mitigating Factors
- Mitigating factors are factors that lessen that can potentially lessen the sentence of the crime
- Circumstances that may work in an offenders favour
- Could be showing the reason behind their crime or that they have good character, and show remorse

Victims can be involved in the criminal trial process in a number of ways, from reporting a crime and assisting police through to testifying at trial as a witness and submitting a victim impact statement.
Victims Rights and Support Act 2013 (NSW). The Act contains a Charter of Victims’ Rights