Factors The Court Considers In Determining A Sentence

Factors The Courts consider in sentencing offenders

Factors The Court Considers In Determining A Sentence

Often as criminal lawyers we are asked what factors the Courts consider when sentencing an individual who has committed a criminal offence?

In determining sentences for offenders, the Judge or Magistrate will consider a number of factors (which are not exhaustive), such as:

  1. The facts of the offence in question;
  2. The circumstances of the offence;
  3. The subjective factors with regard to the offender;
  4. Relevant sentencing legislation and case law;
  5. Previous history, whether the offence is isolated or chronic;
  6. Reason for committing the offence;
  7. State of mind at the time of the offence;
  8. Admission of responsibility and preparedness to make restitution; and/or
  9. Capacity for rehabilitation …

The Magistrate or a Judge may also take into consideration the general sentencing trends of criminal courts in relation to particular offences.

MAXIMUM PENALTY 

The maximum penalty that can be imposed by a Judge or by a Magistrate for every criminal offence is set out in legislation. For individual offences, the maximum penalty for individuals will vary according to the seriousness of a particular offence. When maximum penalties are set by Parliament, the intention is that such penalties will be given only when the particular case falls within the ‘worst’ category of cases for which the penalty is prescribed. Thus, for example, the maximum penalty for murder is life imprisonment, as opposed to, for example two years’ jail  for common assault.

AGGRAVATING AND MITIGATING FACTORS  

One of the things a Court must determine, when deciding on the appropriate sentence for an offence, is what is referred to as the ‘objective seriousness’ of the offence. The court does that by reference to the actual conduct of the offender that gave rise to that offence.

The Court will also consider any aggravating factors concerning the commission of the offence and any mitigating factors relevant to the offence. The Court will also have regard to the offender’s personal circumstances.

An aggravating factor can, potentially, increase the severity of the sentence, whereas a mitigating factor can have the opposite effect and reduce it. How important each factor turns out to be will vary, depending on the circumstances of a particular case.

Section 21A Crimes (Sentencing Procedure) Act 1999 discusses the different types of mitigating and aggravating factors the Courts consider when sentencing individually.

To read more about aggravating and mitigating factors, click here.

VICTIM IMPACT STATEMENTS (VIS)

This is a written statement, made by the victim, describing the impact of the crime upon the victim or upon their family member/ members. This kind of statement is presented to the Court after the conviction and before the sentencing.

Section 30E of the Crimes (Sentencing Procedure) Act 1999 deals with how the Court uses victim impact statements.

A victim impact statement can only relate to the crime or crimes of which the offender has been convicted. It is voluntary and the victim must advise the prosecutor if they want to make a victim impact statement to be presented to the Court.

A victim statement can be made in the Supreme Court or in the District Court, if the Court considers it appropriate to do so, and the statement is in relation to an offence involving actual or threatened violence or the death of, or actual physical bodily harm, to any person.

‘A victim impact statement can be read by the victim or their representative in open court or handed up in written form. The maker of the statement can be cross-examined or questioned in relation to the statement.

In the case of R v Previtera (1997) 94 A Crim R 76 it is noted that where the primary victim dies, a Court’s discretion should be curtailed such that any victim impact statement tendered by a family member should not be taken into account in the sentence imposed. In this case, Hunt CJ reasoned that where the victim dies as a result of the offence, the harm to the victim is already known to the Court. As the nature of the death of the victim is adduced into evidence at trial, the impact of the death on family members, or their opinions on the circumstances of death, become irrelevant. This is because, despite the feelings of family members to the contrary, no one life is more valuable than another according to principles of fairness and equality at law.

Other important factors taken into account by Courts when deciding on a sentence include:

  1. Aboriginality;
  2. Accumulation and concurrency;
  3. Addiction;
  4. Aggregate sentencing;
  5. Assistance to authorities;
  6. Breach of trust;
  7. Child pornography;
  8. Commencement date;
  9. Commonwealth offences;
  10. Could the matter have been dealt with summarily; and/or
  11. Extra curial punishment

To read more about sentencing principles and early pleas, click here to visit our previous blog.

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