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Understanding Sentencing in Criminal Law

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Sentencing in criminal law is a complex and important aspect of the criminal justice system. Sentencing for criminal matters signifies the end point for the case. Sentencing occurs after the verdict has been delivered or a guilty plea entered by the defendant.

Sentencing can be influenced by a number of different factors but it is critical to seek legal advice to assist with what argument should and should not be made. Jameson Law have a team of expert, professional criminal lawyers ready and willing to assist you with any and all criminal matters.

What Is The Purpose Of A Sentence?

A criminal sentence is solely aimed at both punishment for criminal offending and community general deterrence. On one hand the sentence needs to be punitive so that there is a deterrence for the individual to commit further offending.

On the other hand, it must also be a deterrence for the general community so that the public is disinclined to engage in the same behaviour. A sentence is however meant to also be rehabilitative in an attempt to prevent further offending.

Sentencing is also a social justice consideration as victims of criminal offending are afforded resolution through these penalties. It would be unjust for a victim of a particular offence committed to have their harm go unpunished.

If a person pleads guilty to their offence and negates the need for a trial then this can be used as a mitigating factor in their sentence. An early guilty plea shows remorse for ones actions and this is taken seriously by the court. For example, a guilty plea being entered in relation to a drug possession charge may result in a suspended sentence instead of a term of imprisonment following a lengthy trial.

What Type Of Sentence Can Be Imposed?

There are different sentences which can be imposed depending on the type and severity of offending. Aggravating factors or mitigating factors, which will be discussed below, are also taken into account when considering what type of sentence to impose.

Depending on the type of offending there may be a minimum or maximum penalty that needs to be imposed pursuant to legislation. The court is required to impose certain sentences for offending, such as traffic matters, so that it is clear to the community that penalties will be imposed immediately if they make the same actions.

The following is a list of sentences which could be imposed;

  1. Intensive correction order;

  2. Custodial sentence;

  3. Jail sentence;

  4. Compensation order;

  5. Community corrections order/community service order;

  6. Suspended sentence;

  7. Monetary penalty.

The above is a relatively comprehensive list but additional sentences can be imposed by a Judge or Magistrate if they see fit. There are required minimum and maximum penalties for certain offences however there is an element of discretion which can be applied. There can also be a reduction in sentences over time due to a period of good behaviour.

It is possible for multiple sentences to be imposed at the same time if a Magistrate decides that this is necessary either due to rehabilitative reasons or because the offender poses serious danger to the community. I.e. A mandatory drug rehabilitation program may be imposed however this may be in addition to a community service order and a suspended sentence.

The most important aspect of sentencing is the continued safety of the wider community. The risk of imposing a sentence for example in relation to a violent crime which does not include a term of imprisonment needs to be weighed against the risk which may be posed to the community.

What Mitigating Factors May Be Taken Into Account?

When the sentencing court imposes a criminal sentence they need to take many factors into account including the following;

  1. The offender’s culpability;

  2. The seriousness of the offence;

  3. The offender’s criminal history;

  4. The mental health of the offender;

  5. The state of the offender at the time of the offending, i.e whether drugs or alcohol were involved;

  6. etc

The court can consider any of the above factors to be either mitigating or aggravating factors during the sentencing hearing depending on the circumstances. Criminal activity is not a “one size fits all scenario” and appropriate consideration must be given to the factors surrounding the offending. For example, in cases of self defence, it may be determined that the offender had no choice at the time but to defend themselves or risk serious harm or death. This may be a situation where a punitive measure is not appropriate.

Conversely, an offender may have committed a violent act because they were under the influence of a drug such as methamphetamine. Ordinarily the individual might not be considered violent yet in a vulnerable and drug induced state, have lashed out. This could be considered mitigating or aggravating. Usually, drug use is a personal choice therefore it would be a situation of that person’s own making that they were under the influence and subsequently committed a criminal act.

However, the court can recognize that criminal offending under the influence is not necessarily representative of that person’s character. It is ultimately the choices the offender makes following their offending that are important as they may be able to show purposeful attempts at rehabilitation.

It is critical to obtain legal advice early in the process so that a qualified and expert criminal lawyer can assist you to provide your arguments to the court properly. This could be the difference between a harsh sentence or a sentence which takes into account the surrounding factors. The court cannot consider factors which are not presented to them so this is important. You could receive the maximum penalty possible simply due to a poorly argued case.

Mental Health

Mental health is an important consideration which is taken into account by the court. Mental health is one of the most important sentencing factors as depending on the condition certain sentencing options may be inappropriate. In extreme cases, mental health may impose an indefinite sentence if the person is deemed a risk to either themselves or the wider community.

Mental health is not an argument which can be used lightly however. An individual must have a legitimate diagnosis which has been provided by a psychologist or psychiatrist after a thorough examination. The evidence will need to be compelling for the judge or magistrate to take it into account.

A specialized mental health court exists in most states and territories for mental health matters to be considered. The court considers whether an individual is fit to stand trial for their alleged offences.

Why Is Community Deterrence So Important?

The court aims to prevent offending as much as possible through sentencing measures. Specific deterrence for violent or serious offending is required to try and protect the community from harm. Community deterrence is achieved through both the availability of legislation to read and the highly publicized nature of the criminal court.

The criminal justice system features heavily in both the news and articles so that the public are aware of the sentencing options for each specific criminal offence. Community deterrence is the only way to decrease the overall level of criminal offending as it aims to reach as many people as possible. A term of imprisonment for example is hoped to be unappealing to the general public therefore they will not wish to commit and offence which could result in such an outcome.

What Happens Once The Sentence Ends?

If you commit an offence punishable by a criminal sentence then that sentence will have a set period or time frame imposed. For example you may be required to serve a three year prison sentence with a 12 month suspended sentence or a community corrections order with a good behaviour bond imposed.

Once your sentence ceases following its operational period, there is the possibility for a probationary period (parole period) to be imposed. A period of probation is designed to assist an offenders reintegration back into society. This is usually a situation which follows a prison sentence.

A probation officer will be assigned to the individual to help monitor the imposed conditions. These conditions range from strict to lax depending on the level of offending and criminal record the individual holds. For example a violent criminal charge will result in more conditions usually than a non violent criminal charge.

The following conditions can be imposed under a period of probation/parole;

  1. Curfew;

  2. Police check in;

  3. Drug and alcohol testing;

  4. Restraints on attending certain venues, licensed premises, locations or coming into contact with specific individuals;

  5. Community service requirements;

  6. A graffiti removal order;

  7. A banning order;

  8. etc.

These conditions can be lightened over time due to good behaviour and compliance however there are serious consequences imposed if they are breached.


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