Sentencing for State offences

Contributed by AndrewRobson and current to 27 July 2018

Sentencing principles

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

A sentence aims to meet the following objectives :

• 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 1995 (WA) 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 increase the blameworthiness of the offender (s.7).

Mitigating factors are matters which decrease the blameworthiness of the offender or decrease the extent to which the offender should be punished. For example, an early plea of guilty.

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 Act;
• considering the circumstances of the offence; and
• considering 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
• through a victim impact statement.

Sentencing options

The Sentencing Act provides a range of sentencing options for the courts in s39(2) Sentencing Act 1995 (WA).

Imprisonment is the sentence of last resort

For offences at the lower end of the range, the court may or may not grant a spent conviction order under s45 of the Sentencing Act 1995 (WA) when one of the following sentences is applied:

• release without sentence
• conditional release order
• fine or suspended fine
• community-based order.

For more serious offences, the court may impose:

• an intensive supervision order
• suspended imprisonment – wholly or partially
• conditionally suspended imprisonment
• immediate imprisonment

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 matters that the court thinks are proper to consider, that it is not just to impose any other sentencing option.

Conditional Release Order

A Conditional Release Order 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 (s47(b) Sentencing Act 1995 (WA)).

Conditions imposed may include that the offender reappear before the court at a future time to assess whether the conditions have been complied with (s50 Sentencing Act 1995 (WA )).

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 and suspended 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, consider:

• the means of the offender; and
• the extent to which payment of the fine will burden the offender (s.53(1)(b) of the Act).

A court may fine an offender even though it has been unable to find out about the above matters (s53(2) Sentencing Act 1995 (WA)). A court can suspend the payment of a fine based on certain conditions.

Enforcement of fines

Fine enforcement takes place under the provisions of the Fines, Penalties and Infringement Enforcement Act 1995 (WA). 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 s32 of the Fines, Penalties and Infringement Enforcement Act 1995 (WA) 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, several conditions must be met:
  
  
  • The fine must have been imposed in a court and have been referred to the Fines Enforcement Registry for enforcement because 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 6 hours’ work will be done for each $300 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. $250 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 require 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 must 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 like 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 place during assessment and treatment (s73 Sentencing Act 1995 (WA));
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 (s74 Sentencing Act 1995 (WA));
3. A curfew may be imposed for up to 6 months to restrict the movements of offenders during periods when there is a high risk of them re-offending. It may apply between 2 and 12 hours in any one day, with offenders also liable to electronic monitoring, at the direction of a community corrections officer (s75 Sentencing Act 1995 (WA)).

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 (s70 Sentencing Act 1995 (WA)).

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 s127 of the Sentencing Act 1995 (WA). 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. (s127 Sentencing Act 1995 (WA) )

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

Suspended imprisonment - whole or partial or conditional

A suspended sentence of imprisonment is where the court imposes imprisonment but puts that imprisonment on hold for a period either immediately or after a period (s4 of the Act). 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 (s76(1) Sentencing Act 1995 (WA)).

A court may also impose conditions that need to be satisfied while the sentence of imprisonment is suspended (s81 Sentencing Act 1995 (WA)).

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 s6(4) of the Sentencing Act 1995 (WA).

If imprisonment is considered appropriate the court must then proceed to make a few 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 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.

A court must not impose a sentence of imprisonment of 6 months or less unless the aggregate of the sentences imposed is more than 6 months or the offender is already serving a sentence of imprisonment (s86 Sentencing Act 1995 (WA)).

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 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 s88(2) of the Sentencing Act 1995 (WA) unless the court orders otherwise (s88 (3) Sentencing Act 1995 (WA)).

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 perpetrated by the offender.

The pre-condition for making such an order pursuant to s98 of the Sentencing Act 1995 (WA)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.

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 specified exceptions.

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 (s45 Sentencing Act 1995 (WA)).

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 legislation.

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 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 to protect children.

It is also unlawful to discriminate against a person with a spent conviction under the Equal Opportunity Act 1984 (WA).

Sentencing options for children

Sentencing options for children appearing in the Children’s Court are set out in the Young Offenders Act 1994 (WA).