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Sentencing Hearing

A sentencing hearing is held after a person pleads guilty or has been found guilty of an offence by a court.

When the charges are dealt with in a Magistrates Court, the person is usually sentenced immediately after entering a guilty plea, unless the matter is complex or pre-sentencing reports, such as a psychiatric or other medical reports, are ordered. When the charges are dealt with in a District Court or Supreme Court, there may be several hearings before the sentencing hearing.

Sentencing of adult offenders is usually heard in open court unless the judge or magistrate orders the court be closed, which is required in situations such as when an offender has agreed to co-operate with prosecutors in return for a reduced sentence.

The sentencing hearing process

The charges are read to the offender by a magistrate or judge’s associate, and the offender responds by saying “guilty”.

The prosecution reads the statement of facts, and can make submissions about the offending and the type of sentence that should be imposed. This can include sentencing statistics, challenges to evidence put forward by the defence, information about any prior convictions of the offender and victim impact statements.

The defence makes submissions about the offending and the type of sentence that should be imposed, including describing the person’s circumstances in an attempt to persuade the court to consider any mitigating factors. Because of this step, a sentencing hearing is sometimes called a “plea in mitigation”. Submissions can include evidence of the offender’s previous good character in the form of character references, or in the form of mental health reports from medical professionals.

The judge or magistrate will then sentence the offender or defer sentencing. When delivering a sentence, a judge or magistrate will often make sentencing remarks to clarify their decision. These can be written or delivered “ex tempore”, which means they are delivered verbally at the sentencing hearing.

The offender listens to the court’s decision and agrees or disagrees to any order that requires consent. If the offender does not agree, the judge or magistrate can adjourn the matter to allow the defence to discuss the order with the offender, or they can make another order.

Determining a sentence

The purposes for which a court can sentence an offender are generally:

  • punishment;
  • rehabilitation;
  • deterrence, specific to the offender or generally;
  • denunciation;
  • community protection;
  • accountability;
  • recognition of the harm done to the victim and community;
  • a combination of these purposes.

A magistrate or judge will consider a variety of factors in determining a sentence. These include:

  • the nature and seriousness of the offence and how prevalent it is;
  • aggravating factors;
  • mitigating factors;
  • the offender’s personal circumstances, such as their background, employment, family and health;
  • whether and how early the offender pleaded guilty;
  • whether the offender co-operated with police;
  • the offender’s explanation for their offending;
  • any remorse shown by the offender, and their likelihood of reoffending;
  • any rehabilitation efforts made by the offender;
  • any prior convictions, and any similarity to the latest offending;
  • any damage, loss or injury caused.

Types of sentences

The types of sentence that can be imposed will depend on the state or territory, and range from imprisonment to a conviction without sentence.

In Victoria, penalties include a fine, Drug Treatment Order, Community Correction Order, Compensation Order, Restitution Order, good behaviour bond, or an adjourned undertaking.

In New South Wales, penalties include a fine, Intensive Correction Order, Community Correction Order, Conditional Release Order, conviction with no penalty (Section 10 order), deferred sentence, or intervention program.

In Queensland, penalties include a fine, Intensive Correction Order, Probation Order, Community Service Order, recognisance order (“good behaviour bond”), Graffiti Removal Order, suspended sentence, or control order.

In Western Australia, penalties include a fine, Community-Based Order, Intensive Supervision Order, Reparation Order or suspended sentence.

In the Australian Capital Territory, penalties include a fine, Community Service Order, Intensive Correction Order, good behaviour order and suspended sentence.

Other orders can be made for reparation, compensation, victim-offender mediation, or for an offender to be included on a state or territory sex offenders’ register.

A judge or magistrate also has an option to refer a matter to another court, such as the Drug and Alcohol Court, Mental Health Court, Specialist Domestic and Family Violence Court or Murri Court.

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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