Sentencing Methodologies, Principles and Options

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 1151-75; 1189-91.

Method of Sentencing - ’Intuitive Synthesis’ or ‘Two Tier’?

[1] There have been great debates as to which method of sentencing should be used in Australia. The argument centers around two main theories:

  • Intuitive synthesis:
    • Where the magistrate pulls everything together and determines a sentence using his intuition.
    • As indicated by Veen No 2,[2] it is a form of craft knowledge derived from judicial wisdom and experience, and thus approaches discretion as unavoidable given such purposes of sentencing as deterrence and protection of society.
    • Criticisms of intuitive synthesis include:
      • Vague and indeterminate.
      • Produces inconsistency and is thus less predictable.
      • Less transparent (stops people from bringing sentencing appeals because they don’t know what to complain about, questions due process.
      • It is supposedly intuitive and can’t be taught.
      • Inadequate in the face of trends such as guideline judgments.
  • Two tier sentencing:
    • Where the magistrate uses a two step process: firstly, determine the objective gravity of the offence and considers an appropriate sentence, and then then considering whether that sentence should be increased or decreased by subjective factors such as the applicant’s history.[3]
    • Rejected by Victorian CCA in Young,[4] and also questioned by the High Court in Wong.[5]

In spite of the aforementioned criticism, intuitive synthesis remains the accepted general approach to sentencing. Reasons include:

  • It does not elevate the objective sentence above the subjective sentence. Sentences do not start with an objective sentence.[6]
  • Guideline judgments help mitigate the problems with intuitive sentencing by increasing transparency and consistency without sacrificing subjective sentencing because judges can choose whether or not to follow it (unlike legislation).[7]

In Whyte, the CCA recognised that individual discretion was important and broad, and that while committed to instinctive synthesis, it was acceptable to quantify and separate out some aspects.

  • For example, proportionality may require an assessment of objective gravity in isolation (as per the two tier process).

Lastly, the court has remained especially critical of two-step approach in circumstances that do not involve the potential application of a standard non-parole period.[8]

Sentencing Principles

[9] As discussed by the ALRC ,there are some key principles that sentencing is meant to contain:[10]

  • Proportionality:
    • Sentences should be proportional (reasonable) to the criminal conduct.
    • Important in avoiding excessively lenient or excessive/arbitrary sentences.
  • Parsimony ('stinginess'):
    • The prerogative of mercy - giving the minimum sentence without sacrificing public interest.
  • Totality:
    • Limitation on excess - in the case of several offences, there should be a balanced appropriate overall sentence.
    • So, for instance, the sentence should not add up all of the crimes so that it ends up being ridiculous, eg, 350 years in jail (what happens in the US).
    • In Australia, this principle is recognised in using concurrent rather than cumulative sentencing, with a small increase in sentence for each offence to reflect totality.
  • Consistency:
    • Essential in maintaining a just an equitable criminal justice system.
    • The doctrine of precedent – like cases should be treated alike.
  • Individualised justice:
    • Sentencing discretion - the court should impose a sentence that is just and appropriate in all of the circumstances of the particular case.
    • Important because the human condition and behaviour is complex.

Appellate Review

[11] The court system is based within a structure of appeals against sentence. Appellate review is integral to ensuring consistency in the lower courts. Sentence appeals can be brought on the basis of:

  • An error of law or fact by the sentencing judge.
  • Where the sentence is manifestly inadequate or manifestly excessive.

This Promotes consistency and proportionality. However, there are problems with relying upon the appellate review system:

  • The High Court has largely opted out of hearing sentence appeals.
  • As such, despite consistency being a leading argument for sentence appeals, the State Courts of Criminal Appeal are merely encouraged to keep in step with eachother.

The Supreme Court considered appellate review in Way:[12]

  • The system is working. Crown appeals against sentence should be rare.
  • The CCA deals with something in the order of 1000 cases in a year, and 40 separate judges sit in this court in any one year – which does create a problem for consistency.

Sentencing Options

Process

[13] An offender will be sentenced after pleading or being found guilty.

  • A magistrate may not make certain sentencing orders (such as imprisonment) in the absence of the defendant.[14]
  • The Crown has a duty to the court to avoid appealable error, but should avoid forensic urging to the court adverse to the person standing before it for sentence.[15]
  • There has to be an agreed-upon set of facts put to the court.
  • Pre-Sentencing Report: Usually attained where there is going to be an order for community service, home detention and often for imprisonment. They are prepared by the probation and parole sentence and they prepare 30,000 reports per year.

Options

[16] Statutes only specify maximum penalties in NSW, and the courts can choose to hand down any lesser sentence. Sentencing sanctions can be classified broadly into the following categories:

  • Unsupervised release – covering discharges, adjournments, unsupervised release, deferral of sentence
  • Monetary penalties – covering fines, compensation and restitution orders
  • Supervised release – Covers probation, community service orders, supervised bonds
  • Custodial orders – covers imprisonment, periodic detention and home detention

Rising of the Court

[17] This is a nominal penalty where the convicted person must remain in court until the next adjournment.

Dismissal of Charges and Conditional Escape (s 10)

[18] Under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court can dismiss a guilty defendant without a conviction (subsection (1)(a)) or make an order discharging the person on any of the following conditions:

  • (1) (b): That they enter into a good behaviour bond for a term not exceeding 2 years.
  • (1) (c): That they participate in an intervention program and comply with any intervention plan arising out of the program.

subsection 10 (3) specifies factors relevant to making such an order:

(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.

Breach of the conditions of the bond leaves the offender open to being convicted and sentenced on the original offence.

Dismissal under s 10 is an important way of avoiding mandatory minimums in areas such as traffic offences.

  • Also plays a role for people of very good character to avoid conviction, where the latter would have a disproportionate effect on aspects such as their career and so on.
  • About 40 per cent of low-range drink drivers in NSW escape conviction and the loss of their licences through a s 10 dismissal. This is pretty arbitrary and not consistent.

Good Behaviour Bond (s 9)

[19] Where a court has convicted a person, it may order that person to enter into a good behaviour bond not exceeding 5 years under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • This is different from a s 10 (above). Under a s 10, the defendant is dismissed and not convicted. Under a s 9, the person is convicted.
    • Nevertheless, s 9 bonds can be attached to s 10 bonds.
  • A s 9 bond cannot include fines, compensation or community service,[20] but can contain a condition that the offender participate in an intervention program etc.[21]
  • Breach of the conditions of the bond leaves the offender open to having the bond revoked and sentence passed on the original offence.[22]
    • In such a case, the court may take into account the period of compliance in resentencing.[23]

Non-Association and Place Restriction Orders (s 17A)

[24] Under s 17A, the court may make:

(2) (a) a non-association order, being an order prohibiting the offender from
        associating with a specified person for a specified term, or
(2) (b) a place restriction order, being an order prohibiting the offender from 
        frequenting or visiting a specified place or district for a specified term,

They apply to:

  • Any offence punishable by imprisonment for six months or more.[25]

Deferred Sentence (s 11)

[26] Under s 11, the court may defer a sentence of a guilty person whilst the offender participates in a rehab program or something similar.

  • The maximum period of adjournment is 12 months.
  • Upon return, if they have successfully completed the rehab program, this is taken into account in reducing a sentence – to minimise the sentence.
  • Often used in drug sentencing – very useful for intervention/rehabilitation programs etc.

Suspended Sentence (s 12)

[27] Under s 12, when the court imposes a sentence of less than 2 years imprisonment, it may make an order:

(1) (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(1) (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

In other words, the court can put the sentence on hold (if the sentence is less than 2 years imprisonment) and put the defendant on a good behaviour bond. If the bond is broken, the person serves the imprisonment.

  • Can be useful in some circumstances.
  • However, there is evidence that the use of suspended sentences has created a net-widening effect, whereby people who would have previously received a normal good behaviour bond (above) are now being given suspended sentences.

Fines

[28] A monetary penalty is the most frequently used sentencing option in Australia.

  • Set out in units – one unit is worth $110 at the moment.

Fines are used in a variety of ways:

  • Can be imposed as an additional penalty to a good behaviour bond.
  • As an additional or alternative to imprisonment for offences dealt with on indictment not exceeding 1,000 penalty units.

There are several criticisms of the use of fines:

  • Inequitable – the impact on the poor is more than on the rich.
  • In the past, fine defaulters (that is, those who were too poor to pay) made up for a large proportion of the prison population. In effect, imprisonment was the ultimate outcome of many trivial offences.
    • There is a statutory cut-out rate for fines, based on time spent in prison (ie, each day in prison pays a part of the fine).

Probation

[29] Probation is not technically a sentence, but is a condition of supervised release attached to a bond.

  • A form of supervised release requiring the offender to be subject to the supervision and control of the probation service. Whilst on probation, the offender:
    • Needs to comply with all reasonable directions of a probation officer.
    • Be assessed on their likelihood of re-offending.
    • Probation officer will then assist the offender to avoid the offending behaviour and will monitor the progress and draw up an individual case plan.

Programs often include drug and alcohol problems, personal development, drink driving and anger management. If a probation is breached, the offender will return to court to be sentenced for the original offence.

Community Service Orders (s 8)

[30] Under s 8 (2), a court may make a community service order directing the offender to perform community service work for a specified number of hours instead of imposing a sentence of imprisonment of an offender,.

  • Person must be assessed of suitability.
  • Court is satisfied, then person is sentenced with a community service order.
  • Order usually carried out under the supervision of a probation officer.

Intensive Correction Orders (s 7)

[31] Under s 7:

A court that has sentenced an offender to imprisonment for not more than 2 years may
make an intensive correction order directing that the sentence be served by way of 
intensive correction in the community. 

Intensive correction involves the offender being subject to conditions such as monitoring, community work, drug testing, curfew and the like.

  • Note: Periodic detention (imprisoned on the weekend) is no longer available.

Home Detention (s 6)

[32] Under s 6:

(1)  A court that has sentenced an offender to imprisonment for not more than 18
     months may make a home detention order directing that the sentence be served
     by way of home detention.

Home detention involves electronic monitoring involving the use of an electronic bracelet (to ensure that the person does not leave the house).

  • Not available for violent or sexual offenders.[33]
  • The offender Offender must be suitable, and other home occupants must have consented in writing.[34]
  • s 81 specifies a range of factors to be assessed in making a home detention order.
  • The court may impose other conditions on the order.[35]

Criticisms of home detention highlight that it strains family relationships because of the need to take on a carer’s role and thus increases family stress.

Home detention does have a role in our range of penalties. In NSW, home detention is only at the start of the sentence, but in other states, it’s available at the end of a sentence. The latter is preferable, because it allows systematic reintegration into the community.

Restitution and Criminal Injuries Compensation

[36] Under s 43, restitution of property is ordered if there is a conviction of stealing, embezzlement or receiving property.

Imprisonment

[37] Imprisonment is discussed in s 5, which can be summarised as follows:

  1. A court should only imprison an offender if no other alternative punishment is appropriate.
  2. When there's a sentence of 6 months or less, the court must tell the defendant why it is choosing imprisonment (as opposed to alternative punishments). This includes why no other punishment is appropriate, and why it didn't make an order for a rehabilitation type program.

Note that the court is only required to provide reasons for short sentences - this is because short sentences have been proven to be costly, counter rehabilitative, and ineffective in deterring crime.

The sentencing process is set out in s 44. It is summarised as follows:

  1. First set the non-parole period.
  2. Then set the rest of the term. The balance cannot exceed 1/3 of the non-parole period.

Whilst generally the balance is simply 1/3 of the non-parole period, it doesn't have to be exactly that (only no more than that), and thus judicial sentencing discretion is retained.[38]

The non-parole period may be affected by statute:

  • A court doesn't have to set a non-parole period if it appears appropriate (character of the defendant and the offence are considerations).[39]
  • There is no non-parole period for sentences of less than six months.[40]
  • For sentences between 6 months and 3 years, parole is automatic (person is released on parole immediately at the end of the non-parole period).[41]

A court is entitled to set conditions on parole.[42] These may include non-association/place restriction orders.[43]

A sentence of imprisonment starts from the day on which it was imposed,[44] but some standard exceptions apply:

  • Often, court will back-date the sentence to when person started time in custody.[45]
  • If sentence to imprisonment is on top of another previous or at the same time, they can be served consecutively, or sometimes partially concurrently (at the same time).[46]

There are significant differences between maximum, medium and minimum security prisons.

  • All prisoners in NSW, once they enter custody, are held in maximum security prisons.
  • They then can work down the various security levels following assessment by Corrective Services.

The Parole Authority deals with serious offenders (non-parole periods of 12 years or more). When a prisoner satisfies his non-parole period and enter into the parole period, the Authoirty determines whether to release him on parole or not. In determining this, the Authority considers whether the release of the offender is in the public interest, which involves a consideration of:[47]

  • Safety of the community.
  • Maintaining public confidence in the administration of justice.
  • The nature of the offence.
  • Prisoner's criminal history.
  • Ability of the offender to adapt to lead a normal lawful life.

Some serious offenders don’t get released during parole period. This means that they are freed without parole, which can be a greater danger to the community since they are not supervised.

Life Imprisonment

[48] Initially, life sentences would be reviewed for release within 10-20 years. Following 1989, life imprisonment meant that imprisonment until the prisoner dies a natural death.[49]

The rules governing when to impose a life sentence are given in s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which specify that the court should impose a life imprisonment for murder and certain drug trafficking offences (heroin and cocaine only) if society's interest can only be satisfied through the imposition of a life sentence, and, in the case of drug offences:

(a) the offence involved:
    (i) a high degree of planning and organisation, and
    (ii) the use of other people acting at the direction of the person 
         convicted of the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, 
    organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward.

There were a number of prisoners under the old schemes who were imprisoned with a direction 'never to be released'. Under the new scheme, they can apply for a determination of a fixed term, and if they fail, they get a life sentence (only one application can be made.

Its pretty rare for a court to impose a life sentence - between 1990 and 1998, only 14 people received life sentences, and 2 were overturned on appeal. This is because life sentences have a lot of disadvantages:

  • Life sentences deprives prisoners of any goal to aim for - makes him unruly in prison etc.
  • Very expensive.
  • Giving up on rehabilitation.

Imprisonment Rates

[50] Statistics provided by ABS indicate that Australian governments, and society, consider imprisonment as a very suitable form of punishment in general terms.

  • At present, the Australian imprisonment rate is at approximately 170 per 100,000 adults.
  • In addition, the deliberate policy choice on imprisonment is evident by the imprisonment rate showing notable increases across almost every state and territory over the past 10 years, with particularly high rates and increases in WA and NT where there is a high Aboriginal population.
    • There is an overrepresentation of aboriginal people in prison, with the indigenous rate of imprisonment approximately 20 times higher than the rest of the population.

Limits of Imprisonment

[51] Due to the (at best) tenuous and complex link between crime rates and imprisonment rates, there has been the emergence of ‘justice reinvestment’, whereby there is agitation by some towards fiscally and statistically sound policies that make communities safer.

Brown discusses this:[52]

  • All punishments will ultimately fail, in terms of crime control and reform.
  • This is as much of the ‘damage’ is created in marginalised areas of the community, whereby mainstream socialisation of moral values does not fully occur.
  • As such, these divisions in the community need to be addressed to make further tangible improvements in crime.

Garland notes that there are various problems in successfully moving to justice reinvestment[53]

  • Fiscal rationality often does not trump emotive law and order politics.
  • Popular belief of crime rates being ‘higher than ever’.
  • Cost cutting in moving away from imprisonment may simply transform into cutting prison services and programs to reduce expenditure.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 1151-4.
  2. (1988) 164 CLR 465.
  3. Veen (No 1) (1979) 143 CLR 485.
  4. [1990] VR 951.
  5. Wong v The Queen (2001) 207 CLR 584.
  6. Whyte [2002] NSWCCA 343.
  7. Thomson; Houlton [2002] NSWCCA 309.
  8. Georgopolous [2010] NSWCCA 246.
  9. Textbook, pp. 1154-6.
  10. ALRC, Sentencing of Federal Offenders, Discussion Paper 70, November 2005 in Textbook, pp. 1155-6.
  11. Textbook, pp. 1156-8.
  12. [2004] NSWCCA 131.
  13. Textbook, pp. 1158-1159.
  14. Crimes (Sentencing Procedures) Act 1999 (NSW), s 25.
  15. Gamble [1983] 3 NSWLR 356.
  16. Textbook, p. 1159.
  17. Textbook, p. 1159.
  18. Textbook, pp. 1159-60.
  19. Textbook, p. 1160.
  20. Crimes (Sentencing Procedure) Act 1999 (NSW), s 95 (c).
  21. Crimes (Sentencing Procedure) Act 1999 (NSW), s 95A.
  22. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 98 (2) and 99 (1).
  23. Crimes (Sentencing Procedure) Act 1999 (NSW), s 24 (b).
  24. Textbook, p. 1160.
  25. Crimes (Sentencing Procedure) Act 1999 (NSW), s17A (1).
    • And if the court considers it is ‘reasonably necessary to do so to ensure that the offender does not commit any further offences’.Crimes (Sentencing Procedure) Act 1999 (NSW), s 17A (2).
  26. Textbook, pp. 1160-1.
  27. Textbook, pp. 1161-2.
  28. Textbook, pp. 1162-3.
  29. Textbook, p. 1164.
  30. Textbook, pp. 1164-5.
  31. Textbook, pp. 1165-6.
  32. Textbook, pp. 1166-7.
  33. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 76-77.
  34. Crimes (Sentencing Procedure) Act 1999 (NSW), s 78.
  35. Crimes (Sentencing Procedure) Act 1999 (NSW), s 82.
  36. Textbook, p. 1167.
  37. Textbook, p. 1167.
  38. GDR (1994) 35 NSWLR 376.
  39. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 45.
  40. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 46.
  41. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 50 (1).
  42. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 51.
  43. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 51A.
  44. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 47 (1).
  45. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 24 (1) (a).
  46. Crimes (Sentencing and Procedure) Act 1999 (NSW), s 55.
  47. Crimes (Administration of Sentences) Act 1999 (NSW), s 135.
  48. Textbook, pp. 1171-4.
  49. Crimes Act 1900 (nsw), S19A (2).
  50. Textbook, pp. 1174-5.
  51. Textbook, pp. 1189-91.
  52. D Brown, 'The Limited Benefit of Prison in Controlling Crime' (2010) 22(1) Current Issues in Criminal Justice in Textbook, pp. 1190-1.
  53. D Garland, Punishment and Modern Society(1990) in Textbook, p. 1191.
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