Sentencing in NSW

https://www.sydneycriminallawyers.com.au/criminal/resources/general-sentencing-principles/


The rules and procedures for Sentencing Offenders in NSW are contained in Crimes (Sentencing Procedure) Act 1999 (or ‘the Act’).

Here is a general outline of some of the most important sentencing rules and procedures.

‘Aggravating’ and ‘Mitigating’ Factors to be taken into account before a defendant is Sentenced

Section 21A of the Act says that when sentencing a convicted person (ie a ‘guilty’ person) the Judge must take into account the following things:

Discount for pleas of ‘Guilty’

Section 22 of the Sentencing Act

Under section 22 of the Crimes (Sentencing Procedure) Act 1999, the Judge must also take into account the fact that the offender pleaded ‘guilty’, and may reduce the penalty accordingly.

For instance, if a 2 year prison sentence would have been imposed if the offender had pleaded ‘not guilty’ and later been found ‘guilty’, the Judge may instead impose, for example, an 18 or

20 month sentence.

The amount of the reduction will depend on a number of things, including:
– when the plea was entered (a ‘guilty’ plea entered very early in the prosecution will usually be ‘worth more’ than one entered later),
– the strength of the Prosecution case (if the Defence can show that the Prosecution’s case was very weak, the ‘guilty’ plea will usually be worth more),
– the benefit to the community (eg the time and money saved by averting a very long trial), and
– any human suffering averted (eg where a sexual assault victim would have faced the trauma of giving evidence at trial).

Other Discounts

Sentencing Discounts for Assisting Authorities & Defence Disclosures

The Judge may also consider a discount where the Defence disclosed some or all of their case to the Prosecution before trial (section 22A), or where the offender assisted police or other

law enforcement officials (eg customs officers) in their investigations; for example, where a ‘drug dealer’ gave information or evidence against others involved in the drug syndicate (s23).

The total of discounts may range from 5% up to around 25-30%, depending on the circumstances.

Totality’ of Sentence

Making the Sentence Fit the Crime

The principle of ‘totality’ says that when sentencing an offender, the Judge should deal with all of the offender’s criminal behaviour.

For example, if an offender robbed a bank (armed robbery) and, while doing so,assaulted the bank teller (the offence of assault) and caused great fear to the people at the bank (the offence

of ‘affray’) the Judge should deal with all of those offences at once, imposing a single sentence (whatever the penalties comprising that sentence may be) which takes into account all three

of those offences (ie armed robbery, assault and affray).

Equally, if an offender is convicted of several crimes occurring over a relatively short period (eg 10 armed robberies over 2 weeks), a single sentence should be imposed for all of the

crimes.

In NSW, a document called a ‘Form 1’ is often used to ensure ‘totality’; that is, to ensure that all of an offender’s outstanding crimes are dealt with at the one sentencing.

To explain, if a person is to be sentenced for the above three offences (ie armed robbery, assault and affray) but the police intend to later charge and prosecute the offender for several

other minor offences (eg minor thefts, break enter & steals etc), then the Prosecution may suggest that the offender admit to those additional offences at this stage rather than be

prosecuted for them later.

If the offender accepts that offer, those additional offences are written down on a document called a ‘Form 1’, and the Judge takes them into account when imposing a sentence for the three

mentioned offences (ie the armed robbery, assault and affray).

The Judge then imposes a single sentence for all of the offences (ie for the armed robbery, assault, affray + the minor thefts & break enter & steals). This procedure saves the

offender from the uncertainty, stress and anxiety of a future prosecution, thereby letting him or her ‘get on with life’.

It also saves police-time, Court-time, and community funds.

‘Parity’ of Sentence

Consistency in Punishment

The principle of ‘parity’ (or uniformity, equality) says that similar offences should be punished similarly.

For example, if a person is sentenced to 3 years for the crime described above (ie armed robbery + assault + affray), then others who commit the same sort of crime should get roughly the

same penalty.

Similarly, if 3 co-accused are involved a crime – each having similar backgrounds, ages, and an equal involvement in the crime – their sentences should also be roughly the same.

The Supreme Court of NSW has now handed-down ‘Guideline Judgments’ which basically establish the penalties that should be imposed for certain offences.

Those ‘Judgments’ are an attempt to create greater ‘parity’ in sentencing; in other words, to reduce the incidence of similar offenders getting very different penalties.

Similarly, ‘minimum and maximum licence disqualification periods’ for driving offences aim to prevent the situation where one person ‘gets off’ for an offence and another person gets a

lengthy disqualification period for the same offence.