Sentencing

Contributed by Marcus Hassall, Blackburn Chambers and current to March 2022.

According to statistics, more than half of those accused of committing offences end up either pleading to, or being found guilty of, at least some of the charges brought against them. Once this occurs, sentencing law determines what punishment should be imposed. In the ACT, the law relating to criminal sentencing is contained in the Crimes (Sentencing) Act 2005 ("Sentencing Act") and the Crimes (Sentence Administration) Act 2005 ("Sentence Administration Act").

Some Acts, such as the Road Transport (Alcohol and Drugs) Act 1977, contain their own types of penalties (e.g. driver's licence disqualification periods). Special laws relating to the sentencing of young people are contained in Chapter 8A of the Sentencing Act. This chapter deals only with the sentencing of adults.

The sentencing process

The way the sentencing process begins depends on whether an offender has pleaded guilty or not guilty to an offence.

Where the offender has entered a plea of not guilty, but the court, after hearing all the evidence, finds the offence proved, the magistrate or judge decides what penalty should be imposed. Because the 'facts' of the case were presented during the trial, the court does not need to hear them again to determine the sentence.

Presenting the 'facts'

Where an offender admits to committing an offence, a trial or hearing is not necessary, so to obtain the information needed to set an appropriate sentence, the judge calls on the prosecutor to outline its facts. A prosecutor generally makes these facts available before the court session begins.

Before these facts are read in court or given in evidence, they should be checked for accuracy by the offender or their lawyer. If the offender seriously disputes the facts asserted by the prosecution, a plea of guilty may be inappropriate. An offender can indicate to the court that he or she wishes to plead guilty to the offence, but that he or does not agree with some or all of the prosecution facts. If the dispute about the facts is not trivial or irrelevant, the court will order a hearing on the facts.

Informing the court of any prior convictions

A prosecutor then informs the court of any prior convictions recorded against the offender. This includes not only convictions in the ACT, but in other Australian States and Territories, and (if the information is relevant and available) overseas. The offender, or his or her lawyer, should check that any record of prior convictions is accurate, as mistakes do sometimes occur.

Plea in mitigation

Once the court has heard the 'facts' of the case, either during the trial or from the prosecutor after a guilty plea, the judge asks the offender or the offender's lawyer to present any evidence to mitigate (lessen) the offence. This is usually referred to as a plea.

The offender or his or her lawyer may call witnesses to testify as to the offender's good character, or to explain the circumstances that led the offender to commit the offence. This includes the offender, who may wish to explain why he or she committed the offence, and/or to express remorse. The offender's lawyer may also hand the judge references as to the offender's character. A referee can be called on to give evidence. The offender's lawyer may also hand to the sentencing officer any relevant reports from experts, such as medical or psychiatric reports. The offender's lawyer will then address the court to seek to persuade it to impose a lesser penalty (or, in rare instances, no penalty at all).

Pre-sentence reports

Sometimes the sentencing court will call for a pre-sentence report from Corrective Services to help determine an offender's sentence or to assess an offender's suitability for certain types of penalties, such as community service. A person has to plead guilty or be found guilty before a pre-sentence report can be ordered. If a pre-sentence report is called for, the case will usually be adjourned for around six weeks to enable it to be prepared.

Handing down the sentence

Finally, the sentencing officer will pronounce the sentence which she or he has decided should be imposed. Sometimes this will occur immediately after the offender's lawyer and the prosecutor have made their submissions to the court. On other occasions, involving more complex matters, the judge or magistrate may take a few hours or several days to consider the appropriate sentence.

What does the court take into account?

Most criminal offences carry a maximum penalty. Some carry a minimum penalty. When deciding what penalty to impose, the court may not exceed the maximum penalty allowable under the Act that created the offence. In addition, the courts will, when determining a sentence, attempt to achieve the following purposes (s 7 Sentencing Act):

• to ensure that the offender is adequately punished for the offence;
• to prevent crime by deterring the offender and other people from committing similar offences;
• to protect the community from the offender;
• to promote the rehabilitation of the offender;
• to make the offender accountable for his or her actions;
• to denounce the conduct of the offender; and
• to recognise the harm done to the victim of the crime and the community.

The court must also have regard to a range of factors set out in legislation, some of which include (s 33(1) Sentencing Act):

• the nature and circumstances of the offence;
• the cultural background, character, antecedents, age and physical or mental condition, and financial circumstances of the offender;
• the degree of responsibility of the offender for the commission of the offence;
• a plea of guilty by the offender;
• any injury, loss or damage resulting from the offence and any action the offender may have taken to make reparation for such injury, loss or damage;
• the effect of the offence on the victims of the offence, the victims’ families and anyone else, and the personal circumstances of any victim of the offence which were known to the offender when the offence was committed;
• the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants; and
• whether the offender was affected by alcohol or a controlled drug when the offence was committed.

Victim impact statements

A person who is a victim of an offence (or a close family member of a victim) can proivde a victim impact statement to the court during sentencing (Part 4.3 Sentencing Act). A victim impact statement seeks to explain the physical and psychological damage or injury, as well as any economic loss or other harm, suffered by the victim as a result of the crime. A statement by or for a victim can be given verbally or in writing (s 50 Sentencing Act). The court is required to take into account any victim impact statement when sentencing an offender (s 53 Sentencing Act).

"Back up" charges and related offences

A person who performs one action can commit more than one offence. For example, a person who breaks the cheekbone of a victim by punching them commits two offences: assault and assault occasioning actual bodily harm. Police may initially charge the offender with both offences, but under the legal principle of double jeopardy the offender can only be penalised for one of the offences. When the case reaches court, the prosecutor will decide, based on the evidence, which charge to proceed with and any "back-up" charges will be discontinued.

Sometimes, one incident results in a series of connected offences. For example, a person who breaks into a house and steals property has committed at least two offences: burglary, and theft. In such a case, where an offender is convicted of separate but related offences, several convictions are recorded and a sentence is determined for each offence. Often, however, the court will order that the sentences be served either wholly or partly at the same time (concurrently).

Minimum penalties

Some legislation sets out mandatory minimum sentences where a person pleads guilty or is found guilty of an offence. One example is the offence of driving under the influence of alcohol, which under s 32 and s 33 the Road Transport (Alcohol and Drugs) Act 1977 results in mandatory minimum periods of disqualification from holding a driver's licence, as follows:

• Less than 0.05g – minimum penalty is disqualification for 1 month for a first offender and 3 months for a repeat offender;
• Exceed 0.05 - minimum penalty is disqualification for 2 months for a first offender and 3 months for a repeat offender;
• Exceed 0.08 - minimum penalty is disqualification for 3 months for a first offender and 6 months for a repeat offender;
• Exceed 0.15 - minimum penalty is disqualification for 6 months for a first offender and 12 months for a repeat offender.

Types of penalties

Release without conviction

Being convicted of a criminal offence often has serious consequences. For example, a conviction for a dishonesty or drug offence can carry a lasting stigma. Convictions for certain traffic offences will see the offender's driving licence automatically disqualified.

In certain circumstances, however, the courts have power to refrain from convicting an offender, even though that person has been found guilty. This is a power which is exercised relatively rarely. In deciding whether to exercise the power, the court must consider the offender's character, antecedents, age, health and mental condition, the seriousness of the offence, and any extenuating circumstances in which the offence was committed ( s 17 Sentencing Act). In appropriate cases the court may then, without recording a conviction, make an order dismissing the charge or requiring the offender to enter into a good behaviour order (see below). The court can still order the offender to pay restitution or compensation for an offence.

Good behaviour bonds

Under section 13 of the Sentencing Act, where a person is convicted or found guilty of an offence, the court may make an order requiring him or her to sign an undertaking to be of good behaviour for a fixed period (e.g. 2 years). Often, a good behaviour order will be accompanied by a requirement that the offender provide cash security ($500) that he or she will comply with the order. Other conditions may be attached, such as residential or supervision requirements, or a requirement for community service work (see below). For example, an offender can be told where they are to live, who they cannot associate with, and can be required to attend a drug alcohol rehabilitation program.

When a good behaviour order is entered into, the offender must sign a document (the undertaking) agreeing to be of good behaviour for the period specified. Provided the offender does not commit further offences during this period, and obeys any other conditions of the bond, no further punishment will be imposed. However, if further offences are committed during the period of "good behaviour", or there is a breach of a condition (for example, for failing to report to Corrective Services or live at a specified place), the offender might be required to go back to court and can be re-sentenced for the original offence. Instead of being re-sentenced the court also has the option of finding the breach proved but taking no action on it, or ordering that all or part of any cash security provided by the offender be forfeited (s 108 Sentence Administration Act).

Community service orders

As a condition of a good behaviour order following the conviction of an offender (but not where the court decides not to convict the offender), the court has power to order an offender to perform up to 500 hours of community service work (s 85 Sentencing Act). The court cannot require an offender to perform community service unless a pre-sentence report has been obtained, and the offender has been assessed as suitable to engage in such work having regard to issues such as drug dependence, psychological or physical ailments, and existing employment obligations(Pt 6.1 Sentencing Act).

Fines

Fines are a form of penalty commonly imposed in the Magistrates Court. The Act that creates a particular offence usually sets out whether a fine can be imposed, and the maximum amount of any fine. Otherwise, the maximum fine which the Magistrates Court can impose is $2,000, whilst in the Supreme Court the maximum is $10,000 (s 15 Sentencing Act).

In calculating the amount of any fine to be imposed, the court need not inquire into the offender’s financial circumstances, but must consider any facts established by the offender about the offender’s financial circumstances (s 14(3) Sentencing Act). Where the Court imposes a fine it must state the amount of the fine, and how the fine is to be paid (e.g. by particular instalments at particular intervals) (s 14(5) Sentencing Act)..

For those who refuse or fail to pay fines, the Sentencing Administration Act contains provisions relating to enforcement , which ultimately can include imprisonment. Usually, however, a fine defaulter may have his or her driver's licence or registration suspended first. If a fine remains unpaid, other options may be considered, such as garnisheeing wages and seizing property.

Victims Services Levy

In relation to many types of offences, where an offender is ordered to pay a fine, he or she will also become liable to pay a victims services levy of $50 (s 82 Victims of Crime (Financial Assistance) Act 2016). This is in addition to the amount of the fine which the court orders the offender to pay (Pt 5 Victims of Crime Act 1994).

Reparation orders

A court has the power to order an offender to make reparation to a person who has suffered loss or incurred expense (including any out-of-pocket expense) as a direct result of the commission of the offence (s 19 Sentencing Act). In addition, victims of crime who have suffered one or more injuries may be entitled to apply for compensation under the Victims of Crime Act 1994.

Deferred sentence orders

Where an offender has been found guilty by a court of an offence punishable by imprisonment, and the court considers that the offender should be given an opportunity to address his or her criminal behaviour and anything that has contributed to the behaviour (e.g. a drug addiction), the court may make an order effectively deferring the sentencing of the offender until a later date (s 27 Sentencing Act). An order of this type effectively involves the court releasing the offender on bail, and the court may impose whatever conditions it regards as appropriate. This procedure is only available to offenders who are not already serving, or liable to serve, a sentence of imprisonment for some other offence.

Non-association and place restriction orders

In relation to certain types of offences, where the court imposes either a good behaviour order or an intensive corrections order (see below), the court may also make one or both of the following orders:

• a "non-association order" - that is, an order prohibiting the offender from being or communicating with a named person; and
• a "place restriction order" - that is, an order prohibiting the offender from being in, or within a stated distance of, a named place or area.

The court may make a non-association order or a place restriction order where it is satisfied that it is necessary and reasonable to do so to prevent the offender from harassing anyone or endangering the safety or welfare of anyone, to prevent the offender from committing further offences, and/or to assist the offender to manage things that may make the offender more likely to commit further offences (Part 3.4 Sentencing Act).

Imprisonment

A term of imprisonment can only be ordered if the Act that created the offence allows for imprisonment. An Act sets down the maximum period of imprisonment for a particular offence, but such maximums are generally reserved for the worst type of conduct that could constitute the offence. The court can and usually does impose a punishment less severe than the maximum period of imprisonment.

Courts are required to view imprisonment as a last resort, and to consider all other sentencing options first (s 10 Sentencing Act). A term of imprisonment usually begins on the day that sentence is passed; however, if an offender has already spent time in custody for the same offence, the sentence can be backdated to take this into account. Where an offender is sentenced to more than one term of imprisonment, sentences may be ordered to be served at the same time (concurrently), one after the other (cumulatively), or partly concurrently and partly cumulatively.

In the Magistrates Court a judge can only impose a term of up to five years imprisonment for any one conviction, even where the maximum penalty for the offence is longer. However, the court can impose an unspecified longer sentence on an offender convicted of multiple offences.

The Supreme Court can impose a maximum sentence of life imprisonment for certain offences, such as murder.

Non-parole period

A non-parole period is the minimum period of time an offender is required to serve in custody. If the court sentences a person to a period of imprisonment of one year or more (other than life), and the sentence is not fully suspended or ordered to be served in some other way, the court normally must set a non-parole period and must state when it starts and ends (s 65 Sentencing Act).

Other orders a court can make

Suspending a sentence

A judge who thinks that an offence is serious enough to warrant imprisonment may nevertheless, due to factors such as the youth or previous good character of the offender, "suspend" all or part of a sentence of imprisonment. That is, the judge may order that the offender does not have to actually go to gaol for some or all of the period of imprisonment, provided her or she is of good behaviour for the period during which the sentence is suspended, or for any longer period that the court considers appropriate (s 12 Sentencing Act).

If the offender is found guilty of another offence during the period specified, the court must cancel the good behaviour order and either impose that part of the sentence which was suspended, or re-sentence the offender for the offence (s 114 Sentencing Administration Act).

Intensive corrections orders

Where a court convicts an offender and sentences him or her to imprisonment, there are certain circumstances in which the court may order that the sentence instead be served by way of "intensive correction in the community" (an intensive corrections order). This sentencing option is available for all sentences of imprisonment of less than 2 years (s 11(2) Sentencing Act). The court may make an intensive corrections order for sentences of between 2 and 4 years if it considers it appropriate to do so having regard to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to 1 or more people or the community, and the offender’s culpability for the offence having regard to all the circumstances (s 11(3) Sentencing Act).

An intensive corrections order must include certain core conditions aimed at closely monitoring the offender's location and activities in the community, and in addition may include a community service condition, a rehabilitation program condition, or a condition that the offender comply with a reparation order, a non-association order or a place restriction order.

Combination sentences

Under ACT sentencing legislation, the courts have power to "mix and match" different sentencing options in order to create the optimal sentencing outcome for a particular offender, provided it is clear when particular parts of the sentence start and finish (Part 3.5 Sentencing Act).