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SENTENCING

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OVERVIEW

Sentencing in NSW, as well as other State and Territory jurisdictions in Australia, is  discretionary that is, the sentencing Judge or Magistrate has power to impose a sentence he or she considers appropriate, but otherwise guided by the law and established legal principles. There are many different types of non-custodial and custodial penalties the sentencing Court can impose on an offender after he or she is found guilty or enters a plea of guilty to the offence (or offences).

Many different factors are taken into account when determining the most appropriate sentence for the offender and the type of offence committed. A majority of the Court in Markarian v R [2005] HCA 25; 228 CLR 357 stated that the preferable approach to sentencing is by “instinctive synthesis”, whereby the sentencing judge weighs all the competing factors and arrives at one final sentence, as opposed to an approach whereby the judge quantifies the individual factors leading to a final determination.

Some of the factors the Court would take into account in sentencing include:

  1. The offence or offences you have been charged with, and the nature of the criminal conduct.

  2. The timing of your plea of guilty (if one is entered).

Aggravating features:

  • The offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance.

  • The offence was committed while you were on conditional liberty i.e. bail.

  • The offence was committed in the home of the victim or another person.

  • The offence involved gratuitous cruelty.

  • The offence was committed in the presence of a child under the age of 18 years.

  • The offence was planned or part of an organised criminal activity.

  • The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability).

  • The offence was committed without regard for public safety.

  • The actions of the offender were a risk to national security.

  • The offence involved a grave risk of death to another person or persons.

  • The offender abused a position of trust or authority in relation to the victim.

  • The victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant).

  • The offence involved multiple victims or a series of criminal acts.

  • The offence was committed for financial gain.

  • The offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle.The offence involved threatened use or actual use of a weapon, explosives, chemical or biological agent.

  • The offence involved domestic violence.

Mitigating Features:

  • Any assistance you offered to police for their investigation.

  • The offender does not have any previous criminal history or convictions.

  • The offender has shown genuine remorse and contrition for the offence, either by way of reparation, acknowledgement of the harm caused or other evidence that he or she has accepted responsibility.

  • The offender is unlikely to re-offend.

  • The offender is a person of good character and reputation.

  • The offender has good prospects of rehabilitation.

  • The offender’s conduct was provoked by the victim, as opposed to premeditated.

  • The offender was acting under duress.

  • The offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability.

  • The degree of the offender’s pre-trial disclosure.

  • An offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence.

  • The Purposes of Sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999.

  • Your age, health and medical conditions.

  • Any rehabilitation or intervention courses that you have participated in.

  • Your employment.

  • Your community ties.

As different cases have different circumstances and features, it is important to obtain legal advice and assistance so your lawyer can help prepare the relevant evidence of your sentence and help you achieve the best possible outcome.

Can intoxication be taken into account for sentencing?

Some people attempt to minimise their criminal responsibility by claiming their conduct was the caused by alcohol or drugs. Self-induced intoxication cannot be taken into account in sentencing. To consider a person’s self-induced intoxication to reduce his or her moral culpability is contrary to law. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 provides a special rule in relaton to this issue. This provision states “In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.” This means that the Court will not consider your intoxication when assessing the seriousness of the offence.

 

If you are preparing for a sentence, it is in your interests to obtain legal advice and assistance. At KF Lawyers, we would be able to help you negotiate the facts of your charge, prepare your subjective material and present your case in Court to help you achieve the best possible sentencing outcome. If you wish to discuss your matter, please contact KF Lawyers for assistance.

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