Fake news vs real sentencing

Fake news vs real sentencing

FAKE NEWS VS REAL SENTENCING

Fake news perpetuated by Australian Media may be actually real! Whereas real sentencing process are not fake.

In light of the recent reported Crime wave carried out by African youths, many in the Melbourne Judiciary and the Police force are now saying the so-called hyped media reports of any kind of African crime wave are either false or exacerbated.

WHAT DOES THE POLICE SAY ABOUT A SO-CALLED AFRICAN CRIME WAVE? 

Tim Hansen, commander of Melbourne’s North West Metro Region, described the past few months in Melbourne with allegations of African Crime Waves as having elements of “moral panic”. In particular he told Four Corners:

“We’re seeing headlines and reporting that exacerbates the problem. Reporting on things that we’re not necessarily seeing,” AND “It’s driving community angst and people are seeing African crime everywhere, which is not necessarily the case.

 WHAT DOES THE JUDICIARY SAY? 

County Court Chief Judge, Peter Kidd, says

“Current media reporting gives an inaccurate portrayal of how much crime before the courts is actually being committed by people from the African community and the public needs to be “properly informed”.

AND

“If you are an African offender, and certainly if you’re an African youth of South Sudanese background from the western suburbs of Melbourne, rest assured your case will be reported upon,” he said.

County Court Chief Judge, Peter Kidd also is on the record as saying;

“The media choose to report upon those cases. That creates an impression that we, that our work, a very significant proportion of our work is taken up with African youths from the western suburbs of Melbourne. That’s a false impression.

For more information on these false African Crime reports click here

THE TRUTH ABOUT SENTENCING

What seems apparent about false news is that it does not show the truth behind and about sentencing? In particular Chief Judge Kidd says accusations by politicians and the media that judges are too soft on young offenders gives the public a “skewed impression” of how sentencing works. He argues:

“Judges don’t simply pick numbers from nowhere when we come to sentence,” he said.
“What the community is not told are the other factors which the judge, by law, was required to take into account, such as the fact that he was a first-time offender, or the fact that he’s got great prospects of rehabilitation, or the fact that he’s complied with all other court orders on bail.

 SO HOW DO MAGISTRATES AND JUDGES SENTENCE OFFENDERS? 

Suffice to say that when a convicted person comes to be sentenced the Court or Judge looks at the whole picture and rarely to what the media or public outcry has to say.

In particular a Judge will need when sentencing to consider “any objective or subjective factor that affects the relative seriousness of the offence”. But what does that even mean?

Basically, in layman terms the court must follow a two-step method for sentencing:

  1. First the judge assesses the “objective seriousness” of the offence. Objective seriousness is how serious your particular case is. A case may fall at the lower end or the mid or higher ends of seriousness. To determine the objective seriousness, the judge must consider the facts and circumstances of the offence;  and
  2. Second, the judge may consider your personal circumstances where they are relevant. These are known as “subjective factors”.

But how do they do this?

For those who want to know a detailed explanation of how the sentencing  process actually works, we at National Criminal Lawyers  with the help of the Judicial Commission  have compiled a set of criteria of what may be raised in a sentencing process and what may be taken into account by the sentencing Judge;

Some of the objective factors considered by a Judge include:

  1. What is the Maximum penalty for the offence?

The maximum penalty represents the legislature’s assessment of the seriousness of the offence: and for this reason, provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483 at [27]; Gilson v The Queen (1991) 172 CLR 353 at 364.

The courts take the approach at looking at the Maximum penalty so that it can be clearly recorded whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty: Both the nature of the crime and the circumstances of the criminal are considered in determining that issue:

  1. Proportionality

The common law has long recognised that the punishment must fit the crime. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, Mason CJ, Brennan, Dawson and Toohey JJ said:

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender”
  1. Consistency

It is imperative for a court to have regard to previous cases and “not just to what has been done in other cases but why it was done”: Hili v The Queen at [18] (emphasis in the original judgment).

Like cases should be decided alike and different cases should be dealt with differently: Hili v The Queen at [49].

In striving to achieve consistency, courts have utilised previous cases on the one hand and statistics on the other.

 

  1. Premeditation and planning

At common law the degree of premeditation or planning has long been recognised as a factor in weighing the seriousness of an offence: R v Morabito (1992) 62 A Crim R 82 at 86. It permits a court to treat the conduct as a more serious example of the offence charged than would otherwise be the case.

Conversely, offences which are unplanned, impulsive, opportunistic and committed spontaneously are generally regarded as less serious than those that are planned: R v Mobbs [2005] NSWCCA 371 at [50].

 

  1. Degree of participation

Where more than one offender is involved in the commission of an offence, a consideration of sentencing is the degree of participation of the offender in the offence: Lowe v The Queen (1984) 154 CLR 606 per Gibbs CJ at 609; Pastras v The Queen (1993) 65 A Crim R 584 at 588.

An offender’s criminal liability may be based on joint enterprise or extended joint enterprise or as an aider or abettor.

 

  1. Any Breach of trust

 

Where an offence involves a breach of trust, the court regards it as a significant aggravating factor. For a breach of trust to exist there must be a special relationship between the victim and offender at the time of offending: Suleman v R [2009] NSWCCA 70 at [26].

Generally, persons who occupy a position of trust or authority can expect to be treated severely by the criminal law: R v Overall (1993) 71 A Crim R 170; R v Hoerler (2004) 147 A Crim R 520; R v Martin [2005] NSWCCA 190.

 

  1. The Impact on the victim

At common law, the impact of an offence on the victim has always been taken into account. It is a matter relevant to assessing the objective seriousness of the offence. A sentencing judge is entitled to have regard to the harm done to the victim as a consequence of the commission of the crime: Siganto v The Queen (1998) 194 CLR 656 at [29].

The above is only a few factors the Court takes into sentencing an offender. For a list of penalties the NSW Courts may impose please click here. 

 

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