sentencing and punishment

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1. SENTENCING AND PUNISHMENT SECTION 4 - CRIME Mr Shipp Term 3, 2014 2. MAIN SYLLABUS POINTS 3. 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 4. Judicial ofcers 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 5. Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 NSW Mandatory minimum 8yr sentence for unlawful fatal assault (Max 25 yrs) while under inuence 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 6. Mandatory Sentencing Explained 7. FORMER PREMIERS ANNOUNCEMENT 8. Hint: These changes were blocked in the legislative council NSW Crimes Amendment (Intoxication) Bill 2014 9. 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 10. THOMAS KELLYS PARENTS 11. For Against Sentences reect community standards. Punishment ts the crime. lead to injustice due to removal of judges discretion Reduces crime by being a strong detterant Increasing penalties doesn't deter offenders because they act impulsively not rationally Maintaining condence in the justice system Imposes signicant 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 12. PURPOSES OF PUNISHMENT Specic 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 13. KELLI LANE SENTENCING 14. 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 ag, part of his punishment was to spend time with RSL members 2. Retribution 15. 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 16. 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 17. 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 18. Mitigating Factors Aggravating Factors The crime was not planned The victim was a public service worker The oender was provoked by the victim The use of threatened violence using weapons No previous oences recorded Record of previous convictions The oender is of good character and unlikely to reoend Using gratuitous violence The oender has show remorse The crime was a hate crime A plea of guilty Substantial emotional harm to the victim The oender assisted the police The victim was vulnerable e.g. Child, disabled 19. 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 20. 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 21. VICTIM IMPACT STATEMENT 22. Victims of Crime are recognised under Victims Rights Act 1996 (NSW) Victim Impact Statements are only used for serious crimes (sexual assault) 23. Positives Negatives Opportunity for the victim to express themselves in the criminal process can be very subjective yet have a signicant eect on sentencing Allows victim to express their grief and anger publicly Reduced sentences are given to oenders 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 24. APPEALS Appellant - in an appeal case, the party who is making the appeal The crown can also appeal against a conviction or sentence 25. 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 26. 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 27. ALTERNATIVE MEASURES TO PRISON 28. Issued by the police outside of court alleging a criminal infringement and requiring payment of a ne Compulsory condition imposed on the offender for a period of time, which the offender undertakes to comply with criminal infringement notice bond 29. The most common sentencing option used in Australia. A ne is a monetary penalty imposed on an offender and usually applies for less serious offence Specied unit of money used in legislation to describe the ne payable Fines Penalty Units 30. 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 31. The offender is sentenced to serve specied hours of work in the community Imprisonment sentence where the offender is conned to their home under certain conditions of monitoring community service order Home detention 32. HINCH HOME DETENTION 33. 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 34. 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) 35. 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 36. 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 condence in the criminal justice system (access) Aims to reduce recidivism rates 1. Circle Sentencing 37. CIRCLE SENTENCING NSW 38. 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 39. POST SENTENCING CONSIDERATIONS When sentenced to imprisonment, offender will be given a security classication Crimes (Administration of Sentences) Act 1999 (NSW) 40. SUPERMAX DETENTION CENTRE GOULBURN 41. 4 classications: Supermax security - Goulburn 9 maximum security - Goulburn (males), Silverwater (females) 13 medium security - Tamworth 10 minimum security 1. Security Classication 42. SUPERMAX DETENTION CENTRE GOULBURN 43. NSW PRISON POPULATION 44. Provided to offenders who are suspect from attack from other prisoners offences against children Police ofcers Politicians HIV/Aids prisoners given information about other prisoners 2. Protective Custody 45. FIRST DAY IN PRISON 46. 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 ofcer to maintain their conditions which can include: Good Behaviour Bond Not Reoffending gaining employment avoiding company or a specied area 3. Parole 47. 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 48. unconstitutional in the High Court case of Kable v DPP (1996) Terrorism (Police Powers) Act 2002 (NSW) enacted legislation Decreases th

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