Sentencing in NSW

Section 21A of the Act says that when sentencing a convicted person (ie a ‘guilty’ person) the Judge must take into account the following things:

• The ‘nature and circumstances of the case’ (ss(2)(a)):more serious offences will, of course, be punished more severely;
• If the offence was one of many such offences committed by the offender, the ‘that course of conduct’ (ss(2)(b)): eg if an Accused committed several serious armed robberies overa short period of time, the Defence would argue that any prison sentence should cover all of the offences. This could result in a shorter prison sentence than if each offence were punished separately;
• The ‘personal circumstances of any victim’ (ss(2)(c)): crimes against very old, very young or disabled people etc will be treated more seriously;
• Any ‘injury, loss or damage resulting from the offence’ (ss(2)(d)): the offence will, of course, be considered more serious id serious injury, loss or damage has occurred;
• The ‘degree to which the offender has shown contrition’ (ss(2)(e)); in other words, how genuinely sorry the offender is. Such ‘contrition’ may be shown by paying back stolenmoneys, returning stolen property or apologising to and helping an injured victim;
• The ‘need to deter the offender or other persons from committing an offence of the same or similar nature’ (ss(2)(f)): in other words, to send a message to the offender (oftencalled ‘specific deterrence’) and to the community generally (called ‘general deterrence’) that such crimes will be severely punished, and thereby deterring (or putting-off, discouraging, scaring) people from engaging in such behaviour. Judges often consider this principle to be very important.
• The ‘need to protect the community from the offender’ (often called ‘protection’) (ss(2)(g): the desire to keep particularly violent or serious offenders ‘off the streets’ and‘away from our kids’ is normally one of the reasons for imposing a prison sentence;
• The ‘need to ensure that the offender is adequately punished for the offence’ (often called ‘restitution’) (ss(2)(h));
• The ‘character, antecedents, cultural background, age, means and physical or mental condition’ (ss(2)(i)): any such personal factors must be considered by the Judge, providedthat they are relevant to the particular offence.
• The ‘prospect of rehabilitation’ (ss(2)(j)): in other words, the likelihood that the offender will change his or her offending ways.

Section 22 of the Sentencing Act

Under section 22 of the Crimes (Sentencing Procedure) Act 1999, a magistrate in the Local Court is required to take into account the fact that a defendant has pleaded guilty, and can reduce the sentence accordingly.

Case law makes clear that a sentence for a case that is finalised in the Local Court can be reduced by up to 25% due to a defendant’s plea of guilty.

It is important to note that this can reduce the length of a sentence (eg reduce a 12 month prison sentence to 9 months) and can also change the type of penalty (eg from a prison sentence to an intensive correction order).

The amount of the reduction will depend on a number of things, including:

• when the plea was entered (a ‘guilty’ plea entered very early in the prosecution will usually be ‘worth more’ than one entered later),
• the strength of the Prosecution case (if the Defence can show that the Prosecution’s case was very weak, the ‘guilty’ plea will usually be worth more),
• the benefit to the community (eg the time and money saved by averting a very long trial), and
• any human suffering averted (eg where a sexual assault victim would have faced the trauma of giving evidence at trial).

For cases that are to be ‘committed’ (referred) the a higher court such as the District or Supreme Court, the situation is different.

The amount of the sentencing discount in these cases is determined by what is known as the Early Appropriate Guilty Plea (or EAGP) process, which prescribes the following:

• Where the guilty plea is entered while the case is still in the Local Court: 25%
• Where the plea of guilty is entered in the higher court at least 14 days before the first scheduled trial date: 10%
• Where the plea of guilty is entered any time thereafter: 5%

The sentencing judge retains discretion to reduce these discounts where he or she considers it to be interests of justice to do so.

Sentencing Discounts for Assisting Authorities & Defence Disclosures

The Judge may also consider a discount where the Defence disclosed some or all of their case to the Prosecution before trial (section 22A), or where the offender assisted police or other

law enforcement officials (eg customs officers) in their investigations; for example, where a ‘drug dealer’ gave information or evidence against others involved in the drug syndicate (s23).

The total of discounts may range from 5% up to around 25-30%, depending on the circumstances.

Making the Sentence Fit the Crime

The principle of ‘totality’ says that when sentencing an offender, the Judge should deal with all of the offender’s criminal behaviour.

For example, if an offender robbed a bank (armed robbery) and, while doing so, assaulted the bank teller (the offence of assault) and caused great fear to the people at the bank (the offence of ‘affray’) the Judge should deal with all of those offences at once, imposing a single sentence (whatever the penalties comprising that sentence may be) which takes into account all three of those offences (ie armed robbery, assault and affray).

Equally, if an offender is convicted of several crimes occurring over a relatively short period (eg 10 armed robberies over 2 weeks), a single sentence should be imposed for all of the crimes.

In NSW, a document called a ‘Form 1’ is often used to ensure ‘totality’; that is, to ensure that all of an offender’s outstanding crimes are dealt with at the one sentencing.

To explain, if a person is to be sentenced for the above three offences (ie armed robbery, assault and affray) but the police intend to later charge and prosecute the offender for several other minor offences (eg minor thefts, break enter & steals etc), then the Prosecution may suggest that the offender admit to those additional offences at this stage rather than be prosecuted for them later.

If the offender accepts that offer, those additional offences are written down on a document called a ‘Form 1’, and the Judge takes them into account when imposing a sentence for the three mentioned offences (ie the armed robbery, assault and affray).

The Judge then imposes a single sentence for all of the offences (ie for the armed robbery, assault, affray + the minor thefts & break enter & steals). This procedure saves the offender from the uncertainty, stress and anxiety of a future prosecution, thereby letting him or her ‘get on with life’.

It also saves police-time, Court-time, and community funds.

Consistency in Punishment

The principle of ‘parity’ (or uniformity, equality) says that similar offences should be punished similarly.

For example, if a person is sentenced to 3 years for the crime described above (ie armed robbery + assault + affray), then others who commit the same sort of crime should get roughly the same penalty.

Similarly, if 3 co-accused are involved a crime – each having similar backgrounds, ages, and an equal involvement in the crime – their sentences should also be roughly the same.

The Supreme Court of NSW has now handed-down ‘Guideline Judgments’ which basically establish the penalties that should be imposed for certain offences.

Those ‘Judgments’ are an attempt to create greater ‘parity’ in sentencing; in other words, to reduce the incidence of similar offenders getting very different penalties.

Similarly, ‘minimum and maximum licence disqualification periods’ for driving offences aim to prevent the situation where one person ‘gets off’ for an offence and another person gets a lengthy disqualification period for the same offence.