sentencing and punishment

SENTENCING AND PUNISHMENTSECTION 4 - CRIME Mr Shipp Term 3, 2014

MAIN SYLLABUS POINTS

STATUTORY AND JUDICIAL GUIDELINES

• The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law

• Maximum and the range of penalties are decided by parliamentary legislation

• Judicial Discretion - the power of a judge or magistrate to make a decision within a range of possibilities

• Judicial officers can be guided by former judgments where similar facts have arisen (precedent)

• Mandatory sentencing - removal of judicial discretion, by setting a minimum or mandatory sentence for a particular offence

• Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 NSW

• Mandatory minimum 8yr sentence for unlawful fatal assault (Max 25 yrs) while under influence

• Lockouts, 10pm closing time of bottle shops

• R v Loveridge (Death of Thomas Kelly)

• Death of Daniel Christie

• 7:30 Report

Case Space: Mandatory Sentencing and Alcohol Fueled Violence

Hint: This is a great case study for law reform, discretion, ethical standards, balance of rights

Mandatory Sentencing Explained

FORMER PREMIER’S ANNOUNCEMENT

Hint: These changes were blocked in the legislative council NSW

Crimes Amendment (Intoxication) Bill 2014

Non-Legal Responses

Lobby Campaigns “Last Drinks” Emergency services campaign, News Ltd “Real

Heroes Walk Away”, Kelly Family Petition

Media • Major Sydney newspapers ran lengthy campaign labelling the

sentencing as only 4 yrs when in fact it was 7 • Focused on Kings Cross and connected both assaults together • Commercial media supported reform for tougher laws but as

soon as they were enacted they jumped to defend clubs and DJ's

News Article 1 News Article 2

THOMAS KELLY’S PARENTS

For Against

Sentences reflect community standards. Punishment fits the

crime.

lead to injustice due to removal of judge’s discretion

Reduces crime by being a strong detterant

Increasing penalties doesn't deter offenders because they act impulsively not

rationally

Maintaining confidence in the justice system

Imposes significant costs to the system. likely to have less guilty please therefore

more trials. Higher prison costs

less severe and less costly can achieve the same outcome e.g. resources to prevention

programs

Arguments For and Against Mandatory Sentencing

Map of Sydney Entertainment Precinct

PURPOSES OF PUNISHMENT

• Specific Deterrence - punishment against an individual offender aiming to deter them from committing crime in the future

• General Deterrence - punishment attempting to make an example of an offender in order to send a message to the rest of the community

1. Deterrence

KELLI LANE SENTENCING

• Punishment considered to be morally right or deserved based on the nature of the crime

• This punishment is seen as ‘getting even’ where it is proportionate to the crime but not done in violent way

• E.G. Teenager who burnt Australian flag, part of his punishment was to spend time with RSL members

2. Retribution

• an objective of sentencing designed to reform the offender to prevent them committing offences in the future

• recidivism - habitual or repeated lapses into crime

• e.g drink driving course, drug rehabilitation

3. Rehabilitation

• to make an offender incapable of committing further offences by restricting their freedom

• Home detention, licence cancellation and imprisonment (Intensive Correctional Order) are types of incapacitation

4. Incapacitation

FACTORS AFFECTING THE SENTENCING DECISION

• Aggravating factors - which are circumstances that make the offence more serious and can lead to an increased sentence

• gratuitous violence - excessive amount of violence carried out without reason, cause or excuse

• Mitigating factors - which are circumstances that make the offence less severe and can lead to a reduced sentence

Mitigating Factors Aggravating Factors

The crime was not planned The victim was a public service worker

The offender was provoked by the victim

The use of threatened violence using weapons

No previous offences recorded Record of previous convictions

The offender is of good character and unlikely to reoffend Using gratuitous violence

The offender has show remorse The crime was a hate crime

A plea of guilty Substantial emotional harm to the victim

The offender assisted the police

The victim was vulnerable e.g. Child, disabled

• Objective factors - circumstances of the crime

• Subjective factors - personal state of mind of the offender

• whether the accused pleaded guilty

• whether the offender assisted law enforcement authorities

• Victim impact statement from victims of the offence

THE ROLE OF THE VICTIM IN SENTENCING

• Victims can:

• Report the crime

• Testify at the trial and submit a Victim Impact Statement

Hint: Remember the different roles and involvement the victim plays in all phases of the criminal justice system

VICTIM IMPACT STATEMENT

• Victims of Crime are recognised under Victims Rights Act 1996 (NSW)

• Victim Impact Statements are only used for serious crimes (sexual assault)

Positives Negatives

Opportunity for the victim to express themselves in the

criminal process

can be very subjective yet have a significant effect on

sentencing

Allows victim to express their grief and anger publicly

Reduced sentences are given to offenders in family deaths

because they loved them

Improves the justice of the victim involved in the crime

Reduces objective factors from the decision

Hint: This is a classic table to use for the balance of rights regarding the victim

APPEALS

• Appellant - in an appeal case, the party who is making the appeal

• The crown can also appeal against a conviction or sentence

• Two Types:

• Appeal against conviction

• problems that may have existed with the prosecution case

• Sentence appeal

• severity of the sentence(offender) or leniency of the sentence (prosecution) e.g Bilal Skaf case

TYPE OF PENALTIES

• Formal warning without charge issued by police for less serious offences e.g Young Offenders Act 1997 (NSW)

• When an offender is charged and found guilty of the crime but has not been recorded

Caution

No Conviction recorded

ALTERNATIVE MEASURES TO PRISON

• Issued by the police outside of court alleging a criminal infringement and requiring payment of a fine

• Compulsory condition imposed on the offender for a period of time, which the offender undertakes to comply with

criminal infringement notice

bond

• The most common sentencing option used in Australia. A fine is a monetary penalty imposed on an offender and usually applies for less serious offence

• Specified unit of money used in legislation to describe the fine payable

Fines

Penalty Units

• loss of rights to property or assets as a penalty for wrongdoing

• Good behaviour bond where the offender is released on condition of good behaviour but placed under some form of supervision

Forfeiture of Assets

Probation

• The offender is sentenced to serve specified hours of work in the community

• Imprisonment sentence where the offender is confined to their home under certain conditions of monitoring

community service order

Home detention

HINCH HOME DETENTION

• The most severe sentence that can be imposed in Australia and is considered a sentence of last resort

• Imprisonment sentence where the offender spends a period of each week or month in prison and the rest of the time at home - ceased in 2010

Imprisonment

periodic detention

• Strict supervision by Corrective Services NSW for a period of up to 2 years

• 24/7 electronic monitoring, curfews

• Mandatory testing and rehab programs

Intensive Correction Order (ICO)

• Alternative to the traditional court system, diversionary programs focus on therapeutic justice and rehabilitation of offenders

diversionary program

Hint: This method is used to deter people away from correctional facilities

ALTERNATIVE METHODS TO SENTENCING

• Sentencing for some adult Aboriginal offenders where sentencing is conducted in a circle of local community members and a magistrate

• To make it more meaningful to the offender and improving Aboriginal confidence in the criminal justice system (access)

• Aims to reduce recidivism rates

1. Circle Sentencing

CIRCLE SENTENCING NSW

• Sentencing involving a voluntary conference between the offender and the victim of the crime

• Offender is given the opportunity to apologise or make amends for their act

• Highly effective for the rights of the victim and used through youth justice programs

2. restorative justice

POST SENTENCING CONSIDERATIONS

• When sentenced to imprisonment, offender will be given a security classification

• Crimes (Administration of Sentences) Act 1999 (NSW)

SUPERMAX DETENTION CENTRE GOULBURN

• 4 classifications:

• Supermax security - Goulburn

• 9 maximum security - Goulburn (males), Silverwater (females)

• 13 medium security - Tamworth

• 10 minimum security

1. Security Classification

SUPERMAX DETENTION CENTRE GOULBURN

NSW PRISON POPULATION

• Provided to offenders who are suspect from attack from other prisoners

• offences against children

• Police officers

• Politicians

• HIV/Aids prisoners

• given information about other prisoners

2. Protective Custody

FIRST DAY IN PRISON

• Conditional release of a prisoner from custody after the completion of the minimum term of the sentence

• When released on parole, the parolee needs to meet a parole officer to maintain their conditions which can include:

• Good Behaviour Bond

• Not Reoffending

• gaining employment

• avoiding company or a specified area

3. Parole

• detention of a person in custody without having committed any offence, in case of some future harm that they may commit. There are two types:

4. preventative detention

• unconstitutional in the High Court case of Kable v DPP (1996)

• Terrorism (Police Powers) Act 2002 (NSW) enacted legislation

• Decreases the accused rights

preventative detention without charge

• Crimes (Serious Sex Offenders) Act 2006 (NSW)

• Continued detention can be applied by the attorney general if there is a strong possibility that they will reoffend

post sentence preventative detention

• Established under the Child Protection (Offenders Registration) Act 2000 (NSW)

• Minimum 8 years for adult offenders, 4 years for juveniles

• 2009, there were over 10 500 offenders registered nationally.

5. sexual offenders registration

• Non-Australian citizen who is convicted of a criminal offence

• Applies to an offender with a sentence of more than 12 months but has not served more than 10 years

6. Deportation

MULTIPLE CHOICE: CRIME

1 Which of the following is true of restorative justice?

a) it brings together the offender and the victim so that the offender can see the impact they have had on the victim

b) it is the most severe form of punishment

c) it gives the offender the opportunity to confess to the crime

d) it aims to send a message to the rest of society that the law is serious about crime

answer

a it brings together the offender and the victim so that the offender can see the impact they

have had on the victim

2 The victim’s role in sentencing by providing a victim impact statement is:

a to tell the offender exactly what they think

of them

b to influence the judge into giving the maximum penalty

c to make sure justice is achieved

d to express the effect the crime has had upon their life

answer

d to express the effect the crime has had upon their life

3 Which of the following is not likely to be a mitigating factor?

a the offender assisted the victim after the offence

b the offender had experienced similar treatment in their life

c the offender was under the influence of alcohol or drugs

d the offender shows contrition or remorse

C) the offender was under the influence of alcohol or drugs

answer

4 What is the main purpose of the Home Detention Act 1996 (NSW)?

a to keep certain offenders out of jail while still severely restricting their lifestyle

b to shame offenders

c to inflict pain and suffering on offenders

d to prevent others from being harmed by offenders

answer a) to keep certain offenders out of jail while still severely restricting

their lifestyle

5. Imprisonment has been shown to:

a) reduce recidivism b) reduce reoffending

c) increase reoffending d) increase rehabilitation

answer

c) increase reoffending

6. Which of the following is not usually grounds for appeal by the convicted person?

A) Substantial new evidence has become available. B) The convicted person disagrees with their conviction.

C) There is an error of law that was made by the trial judge.

D) The judge did not take into account some of the evidence presented.

B) The convicted person disagrees with their conviction.

7. Which of the following offenders is likely to be given community service?

A) An offender who commits a minor assault. B) An offender who has carried out a major

fraud against their employer. C) An offender who has a second low-range

alcohol driving offence. D) An offender who has committed a first

break, enter and steal.

D) An offender who has committed a first break, enter

and steal.

answer

8. An alternative method of sentencing utilised within the NSW criminal justice system is:

a) judges determining sentence b) circle sentencing

c) restorative injustice d) juries determining sentences

b) circle sentencing

answer

9. General deterrence involves punishment:

a) against an individual offender aimed at convincing them that “crime does not pay”

b) considered to be morally right and based on the nature of the crime

c) that incapacitates offenders from society d) that attempts to make an example of an offender to send a

message to the community

d) that attempts to make an example of an offender to send a

message to the community

answer

10. Victims may be involved in the criminal justice process by:

a) reporting the crime b) providing testimony

c) submitting a victim’s impact statement d) all of the above

d) all of the above

answer

11. What is the aim of a diversionary program?

(A) Imprisonment (B) Incapacitation (C) Rehabilitation

(D) Retribution

(C) Rehabilitation

answer

12. Which of the following may be an aggravating factor when sentencing in a criminal trial?

(A) The offender not being aware of the consequences of their actions

(B) The offender not planning the crime (C) The age of the offender

(D) The age of the victim

(D) The age of the victim

answer

13. Which of the following is a feature of victim impact statements in NSW?

(A) They are required by the court. (B) They are presented at sentencing.

(C) They are used in determining guilt. (D) They are part of the prosecution case.

(B) They are presented at sentencing.

answer

EXTENDED RESPONSE:CRIME

Evaluate the effectiveness of the criminal justice system in managing sentencing of

offenders.

To what extent do penalties imposed during the sentencing process achieve

justice for victims, offenders and society?