WEEK 10 – HSC LEGAL STUDIES

Welcome
SENTENCING + Revision
AND PUNISHMENT

Presented by:
EMILY GEORGE
 OVERVIEW

• Statutory and Judicial Guidelines

• The Purposes of Punishment

• Factors Affecting a Sentencing Decision

• The Role of Victims in Sentencing

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 STATUTORY AND JUDICIAL
GUIDELINES
• Crimes (Sentencing Procedure) Act 1999 NSW

• Maximum penalties that an offender can receive for an offence are listed in
legislation and usually decided by Parliament

• The judicial officer cannot mandate a sentence higher than the maximum
penalty

• Life imprisonment is 25 years – different to imprisonment for the remainder of

the offender’s ‘natural life’

• The act establishes that imprisonment cannot be given as a sentence unless

the court is satisfied that no other penalty is appropriate.

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 STATUTORY AND JUDICIAL
GUIDELINES
JUDICIAL GUIDELINES
• Come from guidelines judgements made by judges which are decided by the
NSW Court of Criminal Appeal

• Judges read cases  pick the best examples of sentencing decisions

o Form judicial guidelines for judges
o Aim = consistency  process needs to be predictable

• There are 8 judicial guidelines

o When someone pleads guilty to armed robbery  judges may wish to
follow guidelines from R v Henry 1999 = not binding

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 STATUTORY AND JUDICIAL
GUIDELINES
STATUTORY GUIDELINES
• A statutory guideline is an act of parliament

• There are a number of acts of parliament may wish or have to follow

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

• Standard non-parole period (snpp) for some crimes were introduced Crimes
(Sentencing Procedure) Act 1999 (NSW) amended in 2003 to include the
standard npp for some crimes

• Some crimes have a maximum and a snpp

o Murder = life  snpp if child is under 18 = 25 years or other cases = 20
years
o Armed robbery = 25 years max  snpp 7 years

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 STATUTORY AND JUDICIAL
GUIDELINES
• Reasons have to be provided by a judge for not taking into account snpp 
judicial discretion

• Other statutory guidelines judges will look at

o Maximum sentence for all crimes in the Crimes Act 1900 (NSW)
 Murder = life
 Manslaughter = 25 years
 Armed robbery = 25 years

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 MANDATORY SENTENCING

• Write down what you already know about mandatory

sentencing

Include:
• Cases
• Legislation
• Controversies
• Opinions
• Legal arguments

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 MANDATORY SENTENCING

• Removes judicial discretion by providing an automatic minimum or mandatory

sentence for a particular offence

• Mandatory sentences are set by parliament and are intended to be a harsh

deterrent

• Opponents to mandatory sentencing argue that it is unduly harsh and removes

valuable discretion from a judicial officer

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 MANDATORY SENTENCING

• For murdering police = life  no judicial discretion  R v Jacobs 2013

• Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)

• Creates serious justice issues  SMH 2011 “Is a policeman’s life worth
more?”

• Parliament is taking over the role of courts = no judicial discretion

• SMH 2011 “Get tough laws erode functions of justice”

• Mandatory minimum sentence for assault/intoxication  catalyst for change

• R v Loveridge 2013 who received “Four Years A Life” increased to 7 on
appeal after death of Thomas Kelly

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 MANDATORY SENTENCING
• Assault  Thomas Kelly’s death subsequent law reform (one punch laws)
o Mandatory minimum sentence 8 years  no mitigating factors  no judge
discretion
o Crimes and Other Amendment (Assault and Intoxication) Act 2014
(NSW)

• Amendment to Crimes Act 1900 (NSW) in 2015  child sex offenders

o Tough law will bring sentences into line with community expectations
o Help protect victims

• Effectiveness:
o Deters criminal behaviour
o Reflects community values and standards
• Ineffectiveness:
o Law breaches human rights
o Mandatory life sentence falls hardest on those who came into contact with
the police the most  ATSI, homeless, disadvantaged groups

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 PURPOSES OF PUNISHMENT

• The Crimes (Sentencing Procedure) Act 1999 (NSW) states in Section 3A

The purposes for which a court may impose a sentence on an offender are as
follows:
o To ensure that the offender is adequately punished for the offence
o To prevent crime by deterring the offender and other persons from committing
similar offences
o To protect the community from the offender
o To promote the rehabilitation of the offender
o To make the offender accountable for his or her actions
o To denounce the conduct of the offence
o To recognize the harm done to the victim of the crime and the community

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 PURPOSES OF PUNISHMENT

DETTERENCE
• To discourage someone from doing something
• Specific and General Deterrence – two types!

Specific deterrence:
• Punishes an individual in a way that will discourage them from doing it again

General deterrence:
• Uses the sentence as a way of making an example of the offender to send a
message to society that the law is serious

• In 1988, the Australian Law Reform Commission recommended that deterrence

not be considered in sentencing as there is little evidence to say it works. It
remains in NSW law, but no longer in the Crimes Act of the Commonwealth

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 PURPOSES OF PUNISHMENT

RETRIBUTION
• Retribution considers that the sentence should be morally right or deserved,
appreciating the nature of the crime

• This is related to the notion of revenge

• This makes sure that the offender is adequately punished, made accountable,
and recognises the harm done to the community

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 PURPOSES OF PUNISHMENT
REHABILITATION

• This aims to reduce future offences by the offender, but does so by aiming to
alter the views of the offender

• It also aims to reduce factors that contribute to crime, and reduce recidivism by
helping criminals make decisions that steer away from patterns of crime.

• Examples of rehabilitation = educational programs and counselling

o Alcohol MERIT program = alcohol rehabilitation

• Non-violent drug offenders must participate in rehabilitation in combination

with probation rather than submitting to incarceration
o Drug Court reduced recidivism by 37%

• Other punishments such as community service orders, bonds, intensive

correction orders (offender has to attend counselling)

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 PURPOSES OF PUNISHMENT

INCAPACITATION
• This aims to protect the community by rendering the offender incapable of
committing further offences

• Home detention, community work, license cancellation and imprisonment are

all types of incapacitation

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FACTORS AFFECTING SENTENCING

AGGRAVATING FACTORS
• Look at the actual crime or offence

• Can make sentence more severe

• There are 22 possible aggravating factors

• Eg. the offence involved violence, victim was a vulnerable child, police or
teacher doing job

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FACTORS AFFECTING SENTENCING

MITIGATING FACTORS
• Look more at the offender

• Can make punishment less severe

• 13 possible mitigating factors

• Eg. the offender is unlikely to reoffend, good character guilty, provoked,

remorse

• Some crimes like sexual offences, assault and intoxication have no mitigating
factors

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 ROLE OF THE VICTIM IN
SENTENCING
• Judge doesn’t sentence for the victim but for the community
• Victim of crime have rights per the NSW Charter of Victim’s Rights
• Victims and family of victim’s sentencing prepare and present a VIS

VICTIM IMPACT STATEMENTS

• VIS are heard during the sentencing of the offender

• VIS = outlines how they have been affected by criminal activities

• Reason = gives the victim (and victim’s family since 2014) an opportunity to be
heard

• VIS must be disclosed to defence prior to being tendered in court  cross

examined

• Since 2008  allows certain victims to give VIS via CCTV

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 ROLE OF THE VICTIM IN
SENTENCING
• Eg. Liam Knight gave a VIS after injuries from head injuries

• Eg. Catherine Smith gave a VIS in regard to the effect of 30 years of domestic
violence

• Prior to 2014 = only primary victim

• Family of homicide victims could read out a VIS but couldn’t be taken into
consideration by a judge during sentencing

• The Kelly family were devastated when the judge couldn’t take into account the
VIS whilst Loveridge was able to use character references to reduce his
sentence

• The Thomas Kelly Youth Foundation and VOCAL pushed for the reform to allow
for VIS of family members to be considered

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 ROLE OF THE VICTIM IN
SENTENCING
• Now = Crimes (Sentencing Procedure) Amendment (Family Member Victim
Impact Statement) Act 2014 (NSW)

• Judge will now consider family VIS when deciding the appropriate sentence in
homicide cases

• Was used in Robert Xie, Amirah Droudis, Roger Dean

• Victim groups such as VOCAL welcome the new law as:

• It can lead to an increased sentence
• Allows victims family to be involved in the justice system by letting the
court know how the crime has affected them

• However, there is no universal acceptance of this reform

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 ROLE OF THE VICTIM IN
SENTENCING
• Opposed by the Greens  everyone should be equal in the eyes of the law
o Eg. victims who have no family would appear to have no rights

• NSW Law Society  harshest sentences handed down in cases where a victim
has family

• Could increase trauma for victim’s family  sentencing procedures will

become longer

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 ACTIVITY
3x media, 2x cases, 2x legislation, as many arguments as possible
Link these ideas together as best as possible
TOPIC ONE TOPIC TWO
Police powers Statutory and judicial guidelines for
Reporting crime sentencing
Investigating crime: gathering The purposes of punishment: deterrence
evidence, use of technology, search (specific and general), retribution,
and seizure rehabilitation, incapacitation
Use of warrants
Factors affecting a sentencing decision:
Arrest and charge aggravating and mitigating circumstances
Summons and warrants
The role of the victim in sentencing
Bail or remand
Interrogation, rights of suspects Appeals
Types of sentences
Alternative methods of sentencing
Post-sentencing considerations

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 ANY QUESTIONS?
Come speak to me! 
Email me at emilyg@tutesmart.com
NEXT WEEK

SEE YOU NEXT YEAR 