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 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:
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.
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  NSWCCA 200).
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:
Mitigating factors include:
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.
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  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).
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.