Introduction

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

A sentence is a penalty imposed on someone for an offence of which they have been found guilty or to which they have pleaded guilty. Sentencing in the ACT happens in the Magistrates Court (by magistrates) for less serious offences and the Supreme Court (by judges) for more serious offences.

In the ACT, over 90% of people accused of offences either plead guilty or are found guilty of at least some of the charges against them. There is some information on sentencing practices for certain offences (mostly in the Magistrates Court) here: http://www.courts.act.gov.au/magistrates/services2/act_sentencing_database_actsd_and_sentencing_snapshots.

The laws governing sentencing determine how a magistrate or judge imposes a penalty once a person has been convicted of an offence, and what they have to consider when they are deciding the kind of sentence to impose. In the ACT, the main law relating to sentencing is the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The main legislation governing the administration of sentences is the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act). This section is concerned with the sentencing of adults, as well as children and young people.

Sentencing is a complex legal exercise and must be decided on a case-by-case basis, taking into account the maximum penalty for that offence (which is set by the Parliament), current sentencing practices for that offence, the purposes of sentencing, relevant sentencing factors (discussed below) and the range of sentencing options (discussed below).

The purposes of sentencing (in s 7 of the Sentencing Act) are:

• Punishment: imposing a sentence that is appropriate and just in all the circumstances of the case;
• Crime prevention: by discouraging the offender and others from committing the same or similar crimes (this is known as ‘deterrence’);
• Community protection: protecting the community from the offender;
• Rehabilitation: treating/helping the offender to change their behaviour so that they do not reoffend;
• Accountability: making the offender responsible for his or her actions;
• Denunciation: expressing the community’s disapproval of the offender’s behaviour;
• Recognition of harm: recognising the harm done to the victim and the community by the offender’s actions.

When sentencing a young offender, defined as a person who was under 18 when the offence was committed (s 133B of the Sentencing Act), additional/modified purposes and considerations apply under s 133C of the Sentencing Act. A court must consider promoting rehabilitation and may give more weight to that purpose than to other purposes contained in s 7. The court must also focus on the principle of individualised justice to ensure that the sentence is designed to fit the circumstances of the young offender.