If you have pleaded or been found guilty of a criminal offence your matter will progress to sentencing. Even if two people have committed the same offence, the penalty that is imposed may differ slightly between offenders.
The sentence you receive will depend on various factors, including but not limited to:
- The Purposes of Sentencing
- Alternatives to a custodial sentence
- Aggravating Factors
- Mitigating Factors
- Totality.
The purpose of sentencing
The sentence imposed must reflect the prescribed purposes of sentencing.
These purposes are outlined in section 3A of the Crimes (Sentencing Procedure) Act 1999 (‘the Act’), and include things like:
- Ensuring the offender is adequately punished
- General deterrence (i.e. dissuading others in the community from committing the offence)
- Protecting the community
- Promoting the rehabilitation of the offender
- Denouncing the conduct
- Recognising the harm caused to the victim and/or community
Alternatives to a custodial sentence?
It is necessary for the court to consider all the possible alternatives to a custodial sentence.
Section 5 of the Act outlines that a person cannot be sent to prison unless it is satisfied that no other penalty is appropriate.
The alternative penalties that are available changed in September 2018. For a detailed discussion of the options that are available, click here.
Objective seriousness
The court is obligated to take into account any ‘factor that affects the relative seriousness of the offence’, often referred to as the ‘proportionality principle’. It requires the judge to take into account the maximum statutory penalty that may be imposed, the circumstances in which the offence was committed and consideration of an offender’s culpability.
To determine an offender’s degree of culpability, things such as the degree of intent or motive behind the commission of the offence will be considered.
For example, if you have been charged with fraud, the objective seriousness of the offence may be heightened if you have continued to engage in illegal activity over many years, as opposed to committing a one-off, opportunistic based offence (Agius v The Queen [2015] NSWCCA 200).
Aggravating and mitigating factors
There will also be consideration of any aggravating or mitigating factors.
The presence of aggravating factors will likely increase the severity of your sentence, whereas the presence of mitigating factors will likely lessen the severity.
Aggravating factors include:
- The victim was a police officer, emergency services worker, health worker or teacher (and the offence arose because of the victim’s work)
- The offence involved violence (either actual or threatened)
- The offence involved a weapon, explosive or chemical agent (actual or threatened)
- The victim was drugged
- The offender has a record of convictions
- The offence was committed in company (i.e. in the presence of another person)
- The offence was committed in the victim’s home
- The offence involved a grave risk of death
- The offender abused a position of trust or authority in relation to the victim
- The victim was vulnerable (for example, they were a child or had a disability)
Mitigating factors include:
- The offence was not planned
- The offender was provoked by the victim
- The injury caused was not substantial
- The offender was acting under duress
- The offender does not have a significant record of previous convictions
- The offender is unlikely to re-offend
- The offender has a good prospect of rehabilitation
- The offender is remorseful
- The offender has pleaded guilty
The totality principle
The totality principle is a common law principle that applies in cases where an offender has been convicted of multiple offences.
Adhering to the principle of totality requires a judge to ensure that the overall sentence imposed is a ‘just and appropriate measure of the total criminality involved’.
Therefore, if you are being sentenced for multiple offences, it is necessary to ensure that the penalty imposed reflects the ‘totality’ of your offending. However, the court will often allow you to serve your sentence concurrently, meaning the penalty will often overlap.
Consideration of Sentencing Factors
It is important to note that whilst there are a number of considerations to be factored into a sentence, it should not be approached by the Judge or Magistrate first determining an appropriate sentence based only on the objective seriousness of the offence before increasing or decreasing the sentence based on the subjective factors of the accused (Markarian v The Queen [2005] HCA 25).
This approach has been criticised as making the sentencing task mathematical and ‘apt to give rise to error.’ The preferred approach is an ‘instinctive synthesis’ in which all factors relevant to the sentence are identified, their significance discussed, and a sentence determined by reference to all of these factors (Markarian).
Key Takeaways
- Sentencing considers purposes like punishment adequacy, deterrence, community protection, rehabilitation, conduct denouncement, and victim/community harm recognition.
- Alternatives to custody must be considered, with imprisonment as a last resort.
- Sentencing assesses the offense's objective seriousness, considering statutory penalties, offense circumstances, and the offender's culpability.
- Aggravating factors may increase, whereas mitigating factors may decrease sentence severity.
- The totality principle ensures the sentence reflects the total criminality for multiple offenses.
- An "instinctive synthesis" approach is preferred over mathematical sentencing, considering all relevant factors holistically.
Have an upcoming sentencing?
If you are going to be sentenced for a criminal offence it is vital to engage experienced criminal lawyers who can make submissions on your behalf.
If you or someone you know has questions about sentencing, contact Hamilton Janke Lawyers 24/7 on 4038 1666.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
