Sentencing

Contributed by Judy McLean and Andrew Robson and current to 1 September 2005

SENTENCING PRINCIPLES

Where a person is convicted of a crime that person is then sentenced in accordance with the legislation which creates the crime and the Sentencing Act 1995 (WA).

A sentence aims to meet a number of objectives. These are:

• the punishment of the offender;
• deterrence of the offender from further offending;
• deterrence of other people from offending; and
• rehabilitation.

Section 6 of the Sentencing Act outlines the principles of sentencing as follows:

• a sentence must match the seriousness of the offence;
• the seriousness of the offence is determined by:

– the statutory penalty for the offence;
– the circumstances under which the offences were committed;
– any aggravating factors; and
– any mitigating factors.

Aggravating factors are matters, which, in the court’s opinion, increase the culpability of the offender (s.7).
Mitigating factors are matters which, in the court’s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. For example, an early plea of guilty is considered to be a mitigating factor.

THE SENTENCING PROCESS

Judges must impose a sentence by:

• considering the penalty provisions of the statute which created the offence;
• following the requirements of the Sentencing Act;
• considering the circumstances of the offence; and
• taking into account the personal circumstances of the offender.

When considering what sentence to impose, the court may inform itself about the matter by several means:

• through submissions made in the plea of mitigation by the offender’s lawyer or by the offender;
• through submissions of the prosecutor;
• through a pre-sentence report prepared by the Department of Justice as to the physical or mental condition of the offender; or
• via a mediation report prepared by The Department of Justice regarding mediation between the victim and the offender; and/or
• through a victim impact statement.

SENTENCING OPTIONS

The Sentencing Act provides a hierarchy of potential sentencing options for the courts in s.39(2), with imprisonment the sentence of last resort.

For offences at the lower end of the scale, the court may or may not grant a spent conviction order under s.45 when one of the following sentences is applied:
• Release without sentence
• Conditional release order
• Fine
• Community-based order.

For more serious offences, the court may impose:

• an intensive supervision order; or
• suspended imprisonment; or
• immediate imprisonment.

Spent conviction orders

A spent conviction order means that the conviction will be spent within the meaning of the Spent Convictions Act 1988 (WA). This means that generally a person will not have to declare the conviction, although there are some exceptions specified in the Act.

To succeed in an application for a spent conviction order, an offender must convince the Court that he or she is not likely to re-offend, that the offence is trivial and that he or she is of previous good character (s.45 Sentencing Act).

Spent convictions following conviction

If a spent conviction order is not made at the time of sentence then a person can apply after 10 years to have the conviction spent under the Spent Convictions Act. The method of application is determined by the seriousness of the offence.

For serious convictions (defined as those where the penalty was more than one year’s imprisonment or a fine of more than $15, 000) an application must be made to the District Court which can decide whether, in all the circumstances, the conviction should be spent.

For lesser convictions (defined as those where the penalty was a fine of less than $15, 000 or imprisonment for less than 12 months) an application may be made to the Commissioner of Police on an application form obtainable from any police station. There is no charge. The applicant is required to provide identification and have their identification confirmed by an appropriate witness. The Commissioner has no discretion and must issue a certificate in respect of a lesser offence if the application is in accordance with the Act.

A person is unable to apply for a National Police Certificate until they have received written confirmation that their convictions have been spent.

WHAT DOES A SPENT CONVICTION ORDER DO?

Having a Spent Conviction Order (SCO) means that a person does not have to acknowledge that they were charged with and convicted of an offence. There are some exceptions. For example, Schedule 3 Clause 2 of the Spent Convictions Act provides that disclosure is required in certain cases for specific offences in order to protect children.

It is also unlawful to discriminate against a person with a spent conviction under the Equal Opportunity Act 1984 (WA): see further Chapter 16: DISCRIMINATION.

Release without sentence

A court sentencing an offender may impose no sentence if it considers that the circumstances of the offence are trivial or technical, and having regard to:

• the offender’s character, antecedents, age, health and mental condition; and
• any other matter that the court thinks is proper to consider, that it is not just to impose any other sentencing option.

Conditional Release Order (CRO)

A CRO is a non-custodial order that does not require supervision by a community corrections officer but may have conditions to secure the good behaviour of the offender.

Conditions imposed may include that the offender reappear before the court at a future time to assess whether the conditions have been complied with. Conditions may also include the deposit of money and/or surety (a third party approved person agreeing to pay money in the event of a breach).

Fines

If a court decides to fine an offender then, in deciding the amount of the fine, the court must, as far as is practicable, take into account:

• the means of the offender; and
• the extent to which payment of the fine will burden the offender (s.53).

A court may fine an offender even though it has been unable to find out about the above matters.

ENFORCEMENT OF FINES

Fine enforcement takes place under the provisions of the Fines, Penalties and Infringement Enforcement Act 1995 (WA) (“FPIEA”). An offender who fails to pay a court fine imposed in Western Australia can:

• be put off the road;
• have property seized;
• be required to do community work; or
• spend time in prison.

The fines enforcement procedure pursuant to s.32 of the FPIEA, is as follows:

• The offender has 28 days to pay the fine, but may apply to the Court Registry to pay the fine by instalments within that 28 days.
• If the offender defaults or fails to pay an agreed instalment, the matter will be referred to the Fines Enforcement Registry for enforcement.
• The offender will receive a notice to suspend their driver’s licence or suspend their motor vehicle license until the fine is paid.
• If the offender does not have a driver’s licence or motor vehicle licence, or fails to pay after the licence is suspended, the Sheriff may seize the offender’s goods, land or other property as payment for the fine.
• If the goods are not sufficient to pay the fine the sheriff can order the offender to attend to undertake a compulsory Work and Development Order. This is a requirement to perform set hours of community work. To convert an unpaid fine to a work and development order, a number of conditions must be met:

– The fine must have been imposed in a court and have been referred to the Fines Enforcement Registry for enforcement as a result of not being paid;
– The offender has no motor vehicle driver’s licence or vehicle registration to suspend; and
– The Sheriff is unable to seize goods or property and has issued an order to attend for work and development.

The order includes:

– A minimum of six hours’ work will be done for each $150 which has not been paid, or part thereof;
– If more than 12 hours’ work is required, the minimum weekly hours will be 12;
– the balance of a fine can be paid out during a work order. The balance must be paid in full.

• If the offender fails to complete the Work and Development Order, a warrant of commitment can be issued by the Fines Enforcement Registry and the police can arrest the offender and have them imprisoned.
• A court can order an offender to be imprisoned until a specified fine is paid.
• The number of days to be served (“cut out”) depends on the amount of the fine. The number of dollars per day can be varied over time by Government regulations. At the moment, $50 of fine is equal to one day of imprisonment.

Community Orders and Pre-Sentence Orders

An Intensive Supervision Order and a Community Based Order are both orders that an offender serve a sentence in the community and that they comply with requirements such as being supervised or having to undertake programs to deal with problems such as drug addiction. These orders are discussed in more detail below.

The court also has the option of requiring a person to undertake programs prior to sentence pursuant to a pre-sentence order.

Community-Based Orders (“CBO”)

A CBO is a non-custodial order whereby the offender has to comply with conditions such as being supervised by a Community Corrections Officer, undertaking unpaid community work, and undertaking counselling or treatment.

The CBO must be no less than 6 months and no more than 24 months in duration.

The CBO permits the offender to remain in the community provided that the offender does not commit another offence. If the offender commits a further offence while on the community order then he or she may be sentenced again for the original offence.

The Department of Justice manages CBOs. Supervising officers are known as community correction officers. If the order has a supervision component, then the offender must report to the nominated community corrections officer throughout the period of the order. The court also has the discretion to make a spent conviction order in conjunction with the CBO.

Intensive Supervision Order (ISO)

An Intensive Supervision Order (ISO) is similar to the Community Based Order but is subject to more stringent conditions. A conviction cannot be spent.

For each ISO, a supervision condition is mandatory. There are three other primary requirements, which a court may impose in any combination it wishes. They are:

1. A program component, where offenders must undergo assessment and appropriate treatment, attend specified programs, or live at a particular place during assessment and treatment;
2. An offender may be ordered to perform between 40 and 240 hours of unpaid community work. At least 12 hours must be worked each week. Community service work must be carried out with an approved non-profit agency or project, such as the Salvation Army, Meals on Wheels, or local council beautification schemes;
3. A curfew may be imposed for up to six months to restrict the movements of offenders in periods when there is a high risk of them re-offending. It may apply between two and 12 hours in any one day, with offenders also liable to electronic monitoring, at the direction of a community corrections officer.

Whenever an ISO is imposed, an offender must report to a community corrections officer within 72 hours of the sentence being handed down; notify any change of address or employment; not leave the State without permission; and comply with all other conditions of the order.

Offenders who fail to abide by the conditions, or who commit an offence during the term of the order, will be returned to court to be dealt with and may be sentenced again.

Community orders may be varied or cancelled on a variety of grounds pursuant to s.127 of the Sentencing Act. The court must be satisfied that:

• the offender is unable to observe the conditions of the order because his or her circumstances have materially changed since the order was made;
• the offender’s circumstances were misstated at the time of the sentence;
• the offender is no longer able to perform the conditions of the order; and
• the cancellation or variation is just.

If the community order is revoked, the court may re-sentence an offender for the original offence.

Suspended Imprisonment

A suspended sentence of imprisonment is where the court imposes imprisonment but puts that imprisonment on hold for a period of time. If a person commits an offence that carries an option of imprisonment within that time then the person becomes liable to serve the period that was suspended.

A court which decides to sentence an offender to a term of imprisonment not exceeding 60 months in total may suspend up to 24 months of the sentence.

Imprisonment

The most severe sanction that may be imposed by a criminal court is a sentence of imprisonment. Imprisonment is a sentence of last resort pursuant to s.6(4) of the Sentencing Act.

If imprisonment is considered appropriate the court must then proceed to make a number of other decisions such as determining the length of the term of imprisonment to be imposed and whether, or if at all, after a specified period of time the prisoner should be given the opportunity to be considered for release on parole. Parole is where a prisoner is released prior to the maximum length of their sentence to be supervised by the Department of Justice (see further below).

A court must not impose a sentence of imprisonment less than 6 months unless the aggregate of the sentences imposed is more than 6 months or the offender is already serving a sentence of imprisonment (s.86 Sentencing Act).

SENTENCING FOR MULTIPLE OFFENCES

If a person has more than one offence for which they are receiving a period of imprisonment, the court must decide whether or not to make the sentences for the offences concurrent or cumulative.

Sentences for more than one offence are to be served concurrently (at the same time) pursuant to s.88(2) of the Sentencing Act, unless the court orders otherwise (s.88 (3)).

The court may impose a partly cumulative or cumulative sentence. A cumulative sentence is one that adds to the total length of the sentence. The court considers the total criminality of the offences in deciding whether to make sentences concurrent or cumulative.

INDEFINITE IMPRISONMENT

The mere probability that an offender will offend again is not enough to sustain an order for indefinite detention. The justification for having a form of indefinite sentence is to protect the public from future violent offences perpetuated by the offender.

The pre-condition for making such an order pursuant to s.98 of the Sentencing Act is that the court is satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody in respect of finite sentences imposed, he or she would be a constant and continuing danger to society or part of it, because of the risk of the commission of other indictable offences.

APPEALING A SENTENCE

An appeal is a review of a sentence by the Supreme Court on the basis of the judicial officer who imposed the sentence making an error. An example of an error is where the court has imposed a sentence which is manifestly excessive, that is, well in excess of the range of penalties for such offences.

Appeals against sentence are provided for in the Criminal Appeals Act 2004 (WA) and the Supreme Court (Court of Appeal) Rules 2005. There is a time limit on commencing an appeal and if a person is outside the time limit that person needs to apply to the Supreme Court for an extension.

Sentences are not increased or decreased because of public pressure from the media or politicians. Laws are made by Parliament and those laws will specify an appropriate punishment for breaking those laws. Because elected representatives make those laws, they will reflect public opinion. Judges can take into account public attitudes to crime and public concern about the prevalence of a type of crime; however, they cannot simply impose a sentence they would like to impose, or one they think will satisfy public opinion. To do either would be contrary to the law. The judge must sentence according to the law, not according to public expectation. If the sentence is within an appropriate range, the court cannot interfere. If the court does interfere, it does so because an error has been made, not because the sentence has been widely criticised.

EARLY RELEASE ORDERS

Parole

Parole is the conditional release of prisoners who have already served part of their sentence. It means prisoners can serve the remainder of their sentence in the community under the supervision of a community corrections officer.

If the parole period is completed satisfactorily, the remainder of the sentence is cancelled.

Parole terms are regulated by the Sentence Administration Act 2003 (Part 3) and the Sentencing Act (Part 13 Division 3) and are administered by a Parole Board and not the Court. Section 89(4) of the Sentencing Act provides that a court may decide not to make a parole eligibility order if at least 2 of the 4 listed factors exists. Those factors are:

• that the offence is serious;
• that the offender has a significant criminal record;
• that the offender failed to comply with the terms of a release order; or
• any reason the court considers relevant.

Recent amendments to the Sentencing Act have removed the previous automatic reductionin sentence by one third (known as the one third remission).

APPLICATIONS FOR PAROLE

A prisoner eligible for parole may apply for parole once he or she has served 50% of their sentence (where the sentence is for 4 years or less) or, where the sentence is for more than 4 years, 2 years prior to the end of that sentence.

Applications for parole are made to the Parole Board. The Board is an administrative body, constituted under the Sentence Administration Act, which deals with the parole of prisoners, including release on parole, conditions of parole and revocation of parole orders.

In assessing a prisoner for parole release, the Board may look at the nature and circumstances of the offence, any risk the prisoner’s release may present to the community or a person, reports from the Department’s Offender Management Division outlining behaviour in prison, and the types of personal development programs undertaken by the prisoner.

Prisoners serving life imprisonment or strict custody are only eligible for parole with the approval of the Governor of Western Australia. Parole orders include a number of conditions such as instructing parolees when to report, and stating that they must not leave the State or change address or employment without the permission of a community corrections officer. The Board can also order a parolee to undertake such things as counselling, and drug or alcohol treatment, or to stay away from the victim of their offence.

CEO Parole

Prisoners serving a sentence of 12 months or less may be released on CEO parole once they have served 50% of their sentence. CEO Parole allows the Chief Executive Officer of the Department of Justice to release such prisoners on parole.

CEO parole does not require any court order for eligibility. CEO parole does not apply to prisoners serving a term imposed for a prison offence pursuant to the Prisons Act 1981, for a term imposed for escaping lawful custody; or where a term is being served for contempt of court.

Generally, the Chief Executive Officer is required to make an order for every prisoner, without the need for the prisoner to have to apply for release. However, there is also a discretionary power not to release certain types of prisoners; for example, those serving sentences for offences of violence.

Specific conditions suited to the needs of the individual prisoner may be attached to the order in the same way as the Parole Board attaches specific conditions to its parole orders. In all cases, the CEO must determine where there will be supervision or not, such as subjecting the prisoner to electronic monitoring of his or her movements in the community.

COMMONWEALTH SENTENCES

People sentenced in relation to crimes created by Commonwealth legislation, such as social security fraud, are sentenced pursuant to the Crimes Act 1914 (Cth). This Act sets out relevant sentencing considerations and sentencing options. They are similar to the options available under the state sentencing regime and are summarised as follows:

• Dismiss without conviction (s.19B Crimes Act );
• Recognizance (s.20(1)(a) – like a good behaviour bond);
• State Sentencing Options (s.20AB): the court may sentence a Commonwealth offender to community service orders or similar orders available under the State law.As well as imposing such an order the court may also impose a fine;
• Fine (s.16C). Note that a pecuniary penalty can also form part of a recognizance bond (s.20(1)(a));
• Suspended sentence (s.20);
• custodial sentence (s.17A). Note that a prison sentence cannot be imposed for offences relating to property, money or both whose total value is not more than $2,000 and the offender has not previously been sentenced to imprisonment unless there are exceptional circumstances: s.17B(1)(b)). Remissions and reductions in State law apply to Federal sentences other than non-parole and pre-release periods of recognizance release orders (s.19AA). Depending on the length of the sentence the court will make a recognizance release order or a non-parole period. A recognizance release order means that the court fixes a minimum period for which the prisoner must remain in prison before being released on his or her own recognizance to be of good behaviour for the period set by the court; and
• Reparation: the court may order, in addition to any penalty imposed, the offender to pay reparation (s.21B(1)). A person is not to be imprisoned for a failure to pay an amount required to be paid under this section.