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Legal Information Access Centre (LIAC) - Hot Topics |
When a person has been found guilty and convicted of a criminal offence, it is then the judge or magistrate’s role to sentence the offender. In NSW, the jury has no role in the sentencing process.
Sentencing in NSW is a ‘discretionary system’ (see p 7 for more detail), that is the individual judge or magistrate can impose a wide range of penalties, as opposed to some legal systems which use mandatory penalties.
While the sentencing discretion is generally quite broad, it is limited and guided by a number of factors. Some of these factors are discussed following.
The penalty imposed for a particular offence can not exceed the maximum as defined by the relevant legislation. This may also preclude certain penalty options. For example, if the maximum penalty is a fine of 1000 penalty units, options such as imprisonment cannot be used. The maximum penalty is the single most important measure of the seriousness with which Parliament and the community regards a particular offence.
Some offences are listed as having standard non-parole periods: see Crimes (Sentencing Procedure) Act, Part 4 Div 1A. When sentencing an offender to a term of imprisonment for any of these offences, the judge or magistrate must refer to the listed standard non-parole period which is to be applied ‘for an offence in the middle of the range of objective seriousness’ unless the court determines that there are reasons for setting a longer or shorter non-parole period. In practice, there are a wide variety of reasons for departing from the standard period. The introduction of the concept of standard non-parole periods, which occurred in 2002 was intended to provide guidance and structure to judicial discretion and is not intended to be seen as a form of mandatory sentencing.
Guideline judgments are issued by courts as a further guide to judicial discretion. However, unlike standard non-parole periods which were made by Parliament, guideline judgments in NSW are issued by the Court of Criminal Appeal. As this is the highest court of criminal jurisdiction in the state, its rulings are binding on the lower criminal courts in which sentences are commonly being determined and imposed. The first guideline judgment was issued in 1998, and several more have been issued since.
Guideline judgments outline how the task of sentencing for specified offences and circumstances should be approached. Guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were binding rules; guideline judgments are a mechanism for structuring discretion, rather than restricting discretion. If a trial judge departs from the sentence range indicated by the guideline judgment, the judge will explain the departure in their published reasons for the decision.
Guideline judgments have been issued relating to particular offences (and also outlining how particular matters are to be dealt with regardless of the offence being sentenced (for example the quantification of discount for guilty plea).
➢ R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259: guideline on the offence of dangerous driving causing grievous bodily harm or death. This was the first guideline judgment in NSW; available at www.austlii.edu.au/au/cases/nsw/supreme_ct/1998/423.html
The guideline has since been modified and re-stated in the case of R v Whyte [2002] NSWCCA 343; available at www.austlii.edu.au/au/cases/nsw/NSWCCA/2002/343.html
➢ R v Wong and Leung [1999] NSWCCA 420: offence of drug importation under the Commonwealth Customs Act 1901, s 233B. This guideline was overruled by the High Court of Australia in the case Wong v The Queen; Leung v The Queen [2001] HCA 64; available at www.austlii.edu.au/au/cases/nsw/NSWCCA/1999/287.html
➢ Attorney General’s Application (No 1), R v Ponfield & Ors [1999] NSWCCA 435: guideline on the offence of break, enter and steal under the Crimes Act 1900, s 112(1); available at www.austlii.edu.au/au/cases/nsw/NSWCCA/1999/435.html
➢ R v Henry & Ors [1999] NSWCCA 111: offence of armed robbery under the Crimes Act 1900, s 97; available at www.austlii.edu.au/au/cases/nsw/NSWCCA/1999/111.html
➢ Application by Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303: offence of High Range PCA (drink-driving) under the Road Transport (Safety and Traffic Management) Act 1999 s 9(4); available at www.austlii.edu.au/au/cases/nsw/NSW CCA/2004/303.html
Because of its long name, this case is commonly referred to as the ‘PCA guideline’ or similar.
➢ R v Thomson and Houlton [2000] NSWCCA 309: guideline for sentencing discounts for guilty pleas in accordance with the (Crimes (Sentencing Procedure) Act 1999, s 22; available at www.austlii.edu.au/au/cases/nsw/NSWCCA/2000/309.html
➢ Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518: guideline for sentencing in cases involving Form 1 offences. (A person guilty of an offence may admit that he is guilty of other offences, and these offences are listed on a Form 1. When being sentenced, these additional matters will be taken into account as an aggravating factor leading to an increased sentence by giving greater weight to personal deterrence and retribution. The use of Form 1 is thought to be beneficial both in terms of ‘clearing up’ a large number of offences, saving time and money, and promoting rehabilitation since the offender who admits other offences will have a ‘clean slate’ and cannot be subsequently punished for those offences.) Available at www.austlii.edu.au/au/cases/nsw/NSWCCA/2002/518.html
Over time a range of appropriate sentences is established for any given offence. This shared knowledge and experience guides the sentencing judge or magistrate in deciding what types of sentence are generally available for a particular offence, and what range of sentence is typically imposed. For instance, there is no rule that says for the offence of murder the only available option is a full-time sentence of imprisonment. However, in practice, this is the only option used for murder sentences.
Similarly, for any given offence a ‘sentencing range’ develops over time. This indicates the severity of sentences imposed over time. Most sentences are well below the maximum available penalty. The system of appeals available in NSW means that sentences that are found to be manifestly inadequate or manifestly excessive are corrected, thus providing further guidance as to the ‘permissible range’ of sentences for any given offence.
The nature of the judicial discretion allows the judge or magistrate to depart from the established range if he or she sees fit, so long as the sentence does not exceed the allowable maximum. Particularly lenient or unusually severe sentences may be imposed where the judge or magistrate sees fit. However the sentencing judge or magistrate must carefully and fully explain the reasons for imposing that sentence.
To improve the efficiency and consistency of sentencing practices in New South Wales, statistical information on sentencing has been made available to sentencing judges in an online system developed by the Judicial Commission of New South Wales. This Sentencing Information System has been operating since 1990. The system provides statistical information, in the form of graphs and tables, on the range and frequency of penalties imposed in recent cases of a similar nature. Specific details of the offence and the offender (age, prior record, bail status, plea, etc) are entered, and the system then produces information on the ‘going rate’ or range of sentences imposed for any particular offence. The statistical information is derived from data that is generated by the courts and collected by the New South Wales Bureau of Crime Statistics and Research.
Graphs from the Sentencing Information System are often submitted both by the defence and the prosecution to help illustrate the established range of sentences for a particular offence. For more information on the Sentencing Information System see http://www.judcom.nsw.gov.au/sisdemo/main.html