Throughout the judicial process, often the final stage involves the Magistrate, Judge or Justice (Judge) passing down a sentence of which the accused must adhere to subject to whether any appeals are made. For the purposes of this article, the word “Judge” will be referred to as the judicial entity.

While it is often misunderstood that Judges have extreme amounts of discretion during the sentencing process, this is simply not entirely accurate, but rather judges are bound by various laws when deciding on the appropriate sentences for an offender.

Further, judges are required to take into account a number of factors when determining the appropriate sentence.

It is the role of the Judge to sentence and not the jury. Learn more about how the jury works here.

What Sentences Are Available By A Court?

A judge is able to push forth the following sentences:

  • Prison
  • Fines
  • Orders to pay compensation to the victim
  • Community-based sentences
  • Compulsory treatment
  • Bans on associating with certain people or attending certain places.

Further, after changes made to the law in 2018, the judge is also able to pass on one of three community based sentencing orders including:

  • ICO – Intensive Correction Orders
  • CCO – Community Correction Orders
  • CRO – Conditional Release Orders

Finding Of Guilt With No Conviction

Firstly, guilt is established in court when the evidence provided by the Prosecution proves beyond reasonable doubt that the offender committed the crime. Guilt can also be established if an accused pleads guilty to the offences.

However, just because a person is found guilty, they are not automatically convicted, rather the judge is able to record an outcome of Guilty but no conviction.

A criminal conviction may possibly impact an offenders future travel and employment opportunities, which is why it is so important to seek appropriate legal advice to guide you through any difficult situation in order to achieve the best possible outcome for your case. Contact us by clicking here.

Judges have the option of sentencing offenders with CRO’s without conviction, while also recording no conviction under Section 10 of the Crimes (Sentencing Procedure) Act 1999 which means an individual is found guilty of a crimes, however due to the nature of the circumstances, a conviction is not recorded and a criminal record will not be received from the offence.

However, it is important to remember that most sentencing procedures involve a conviction such as Fines, CCO, CRO with conviction, ICO and Jail Time.

Legal Limitations

One such restriction placed on judges when determining a sentence is a maximum penalty which is to only be given in the worst case of a certain crime being committed. All crimes carry a maximum penalty.

One such example is Common Assault which as per Section 61 of the Crimes Act 1900 states,

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

For more information about Common Assault click here.

One such more serious example such as that of murder is found in Section 18(1)(a) of the Crimes Act 1900 which states:

Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.”

For more information about Murder click here.

With the life sentence carrying the largest sentence possible for an offence in NSW, it can be seen that such legislation acts as guides for Judges when determining appropriate sentences.

Such limitations also exist in a few cases with providing a mandatory minimum sentence. One such controversial case is seen with ‘one punch’ attacks causing deaths. As per Section 25B of the Crimes Act 1900, such an offence carries a minimum sentence of 8 years imprisonment under the banner of “Assault causing death when intoxicated”.


Other Considerations Judges Make

There are many other considerations which a court must take into account when sentencing an offender.

One such consideration is legal precedents in which a court of a generally higher hierarchy establishes a decision and a sentence in a similar case, which is generally given to guide the decisions of the lower courts. There are mainly two different types of precedents:

  • Binding Precedent- A binding precedent is one that is “made by a superior court that is higher in the hierarchy of courts” and must be followed if both cases are “sufficiently similar”. One such example is decisions being made by Supreme Court being binding for the District Court and Local Court.
  • Persuasive Precedent– A persuasive precedent is used in such a scenario where despite a court not being above another in hierarchy but only higher in superiority, such a precedent which is established in a similar case should be given proper consideration, rather then disregarded. Such would be the case where “a precedent established by the Supreme Court of New South Wales is persuasive but not binding on the Supreme Court of Victoria, since these courts are not in the same hierarchy and are of equal authority”.

An offenders background including their past criminal activity, mental and physical health and personal circumstances are all taken into consideration as either mitigating or aggravating factors.

Mitigating factors are those which reduce the level of sentencing, by working in favour of the offender. A clean criminal history may act as a mitigating factor given the reduced likelihood of reoffending. Similarly mental health conditions and the ability to demonstrate prospects of rehabilitation may all work in the favour of the accused in securing a lower punishment. Further age may act as a mitigating factor especially if it was in the case of a youth offender.

Aggravating factors are those which rise the level of sentencing and push for a higher punishment. One such example is if the offence was committed while the offender was on bail or certain restrictions, while another example may be if the offence involved actual or threatened use of violence.

Another such factor is the Victim Impact Statement which allows victims to state the impact which the offender’s crime has had on them during the sentencing procedure. Depending on what is said, it may impact the severity of the punishment passed on by the judge.

It is important to seek legal advice no matter what stage of the matter you are on, a skilled Criminal Defence Lawyer will be able to assist you at all times, including during sentencing, aiming to provide you the best outcome possible. Book a free consultation with us now by clicking here.

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