1 September 2015

Sentencing in criminal matters is one of the most difficult tasks for courts to undertake. In arriving at an appropriate sentence for an offence the Court must consider both the objective and subjective features of the offence which are often numerous and complex. In determining the appropriate sentence the Court must ensure the penalty is within the range for the offence considering all the facts and circumstances.

The objective features are those that attach to the nature and type of offence and where the offence sits on the hierarchy of crime. For example the objective seriousness of the offence of affray is much greater than that of common assault which is reflected by the maximum penalties being 10 and 2 years respectively. Similarly, the objective seriousness of a common assault arising as a result of punching will usually be greater than that of a common assault for slapping. The location of the offence on the scale of seriousness is sometimes known as the position on the spectrum of criminality.

The subjective features are those unique to the defendant or his actions. For example the defendant may not have any previous criminal history, hold a responsible position of employment or be a person of good character. Similarly, the conduct the subject of the offence may arise from provocation or an error in judgment as distinct from being malicious or premeditated.

In all criminal and traffic matters the court is also required to consider any aggravating and mitigating factors that do not form part of the offence.¹ The general position is that aggravating factors increase whilst mitigating factors decrease the likely penalty. This is because these factors affect the position of the conduct on the spectrum of criminality.

Penalties
The Crimes Sentencing Procedure Act 1989 sets out the various penalties that may be handed down in criminal matters and the manner in which those penalties may be served. The various penalties are set out below in order of increasing severity.
1. Dismissal of charge, - Often known as a Section 10 this is the best outcome one can obtain for a finding of guilt as no conviction is recorded and there is no penalty.
2. Conviction with no other penalty,
3. Good Behaviour Bond,
4. Fine,
5. Community Service Orders,

For more serious offending the Courts have available to it full time custodial penalties and alternatives. However, before a Court can sentence an offender to full time custody, it must be convinced that after considering all the possible alternatives no penalty other than imprisonment is appropriate . Some of the alternatives are found below.
1. Suspended sentence
2. Home Detention
3. Intensive Correction Orders
4. Full Time custody
In relation to the alternatives, the offender must first be assessed for suitability.

Mersal & Associates specialise in criminal matters. For assistance or advice contact our office for an appointment.

¹ Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.