How the court decides on a sentence

Contributed by Lorana Bartels and Anthony Hopkins. Current to November 2021.

In deciding on the appropriate penalty that meets the various purposes of punishment, a sentencing magistrate or judge must consider all of the relevant circumstances of the offence and the offender that are known to the court.

A list of relevant considerations is contained in s 33(1) of the Sentencing Act.

Whether or not a particular factor is relevant or important will depend on the facts of the case and what information is before the court about that factor. Some examples of factors contained in s 33(1) are:

• Injury, loss or damage resulting from the offence;
• Effect on victims;
• Plea of guilty;
• Assistance given in administration of justice and to law enforcement authorities;
• The offender's cultural background, character, previous criminal record, age, physical or mental condition and financial circumstances;
• Whether the offender is voluntarily seeking treatment;
• The reason/s for the offence;
• Any remorse;
• Current sentencing practice.

Where the court is sentencing a young offender, additional matters must be considered under s 133D of the Sentencing Act, including the young offender’s past and present family circumstances, state of development and culpability for the offence, having regard to their maturity.

The requirement that the magistrate or judge take into account ‘current sentencing practice’ is designed to ensure that there is consistency in sentencing. This means that an offender who commits the same offence in similar circumstances will receive a similar sentence, assuming their personal circumstances are also similar. In more serious cases, the magistrate or judge will often consider sentences imposed on other offenders in the past to help them decide on the appropriate sentence. In less serious cases, magistrates and judges may simply rely on their own experience.

Where an offender pleads guilty, or assists in the administration of justice or assists law enforcement authorities, they will generally receive a reduced sentence (ss 35, 35A and 36 Sentencing Act). These reductions can be very significant, depending on the timing of the plea or the nature of the assistance given. For example, if an offender pleads guilty at an early opportunity, then they will likely receive a reduction in the penalty that would otherwise be imposed of around 25%. Similar reductions can be given by a court where an offender has provided evidence against other offenders with respect to related or unrelated offending. These reductions reflect the community interest in sparing victims the trauma of having to give evidence, saving the cost of court time, preventing crime and prosecuting those who commit them.

Section 34 of the Sentencing Act sets out considerations or factors that cannot be taken into account to increase a sentence. These include:

• the offender’s behaviour in court;
• the fact that the offender pleaded not guilty; and
• that an offender did not comply with a treatment order.

So, for example, though pleading guilty will be a matter which will typically lead to a reduced penalty, pleading not guilty will not lead to an increase in penalty.

Finally, where a magistrate or judge is sentencing an offender in relation to more than one offence, they will have to determine whether sentences should be simply added onto one another or whether there should be an overall reduction so that the penalty imposed is appropriate for the ‘totality’ of the offending conduct. Simply adding sentences together without regard for the total sentence can produce a crushing sentence that does not hold out sufficient hope or inducement for reform.