How a Sentence is Determined (NSW)

When a person pleads guilty or is found guilty of an offence they will be sentenced which involves the Court imposing a penalty for their criminal conduct. The sentencing Magistrate or Judge is required to consider and balance many factors and sentencing principles when determining the appropriate penalty for the offender. This article explains those relevant factors and considerations in the sentencing exercise. 

Maximum Penalty:

The maximum penalty for an offence is prescribed by Parliament in the Act that creates the offence, such as in the Crimes Act 1900 or the Drug Misuse and Trafficking Act 1985. A maximum penalty is exactly as it sounds; it is the upper amount of penalty units that can be imposed for the offence or the maximum period of time that a person can be imprisoned for the offence. The maximum penalty for an offence is reserved for the worst cases or those that fall into the worst category. It has been found to be an error if the Magistrate or Judge fails to consider the correct maximum penalty for the offence when sentencing a person (R v Mason [2000] NSWCCA 82). 

The maximum penalty provides a sentencing ‘yardstick’ for Magistrates and Judges to gauge the community attitudes towards and Parliament’s assessment of the seriousness of the criminalised conduct. 

An important factor which impacts the availability of the maximum penalty is which Court is sentencing the offender. The Local Court of New South Wales is subject to a jurisdictional limit when setting terms of imprisonment, being a maximum of 2 years for one offence and three years for multiple offences. In the District and Supreme Court of New South Wales there is no jurisdictional limit meaning the offender is exposed to receiving the maximum penalty. 

Purposes of Sentencing:

The Crimes (Sentencing Procedure) Act 1999 defines its purposes of sentencing under Section 3A. The purposes of sentencing factors can overlap and at times be in conflict with each other. The importance or weight of each of these factors will depend on the unique and individual circumstances of the matter being sentenced.  

Punishment – Section 3A(a)

The sentencing principle of punishment involves the penalty for the offence being proportionate to the circumstances in which the offence was committed and the objective seriousness of the offence itself. This principle seeks to guard against the imposition of unduly lenient or unduly harsh sentences so that the penalty should neither exceed nor be less than the gravity of the crime committed having regard to the objective circumstances.  

Deterrence – Section 3A(b)

The principle of ‘deterrence’ involves discouraging the offender and the community from breaking the law because of the punishment imposed by the Courts on sentence.  Deterrence is an important purpose of sentencing however its weight will depend on the circumstances of the matter being sentenced. 

The principle of deterrence involves two aspects:

1. Specific or personal deterrence – Specific deterrence is the need to deter the individual offender from committing a similar offence in the future. Specific deterrence as a sentencing principle is most relevant on sentence in cases where the offender is a repeat offender or has a significant criminal history of past offending. 
2. General deterrence – General deterrence is the need to deter the general community from committing the offence or similar offences. General deterrence as a sentencing principle is particularly important with prevalent offences (for example drink driving, contravening an ADVO and speeding) to dissuade the community from engaging in unlawful behaviour due to the penalties imposed by the Courts. General deterrence will hold less weight on sentences where a person has mental health or cognitive issues that contributed to the offence being committed.  

Community protection – Section 3A(c)

While protecting the community is an important purpose of sentencing, it does not mean that the sentence imposed will be beyond what is proportionate to the crime merely to protect the community from the risk of further offending. This sentencing principle interacts with the others such that giving substantial weight to specific and general deterrence will also serve to protect the community from the offender.  The weight given to this purpose of sentencing depends heavily on the circumstances of the matter being sentenced.

Rehabilitation – Section 3A(d)

The sentencing purpose of rehabilitation is aimed at the renunciation by the offender of his or her wrongdoing and the offender’s establishment or re-establishment as an honourable law-abiding citizen in our community. Rehabilitation is a cornerstone of sentencing discretion. The concept of rehabilitation involves ensuring that an offender will not reoffend by addressing any underlying issues that impact on the offender’s risk of reoffending such as drug and alcohol addiction. 

Making the offender accountable – Section 3A(e)

This purpose is directed at making the offender liable to be called to account for his or her actions. Making the offender accountable is an important purpose of sentencing. 

Denunciation – Section 3A(f)

Denunciation involves publicly condemning the offender’s conduct. The sentence imposed should convey the community’s condemnation of the person’s behaviour. This sentencing purpose is particularly relevant in matters where the offence violates fundamental moral standards of the community such as child sex offences.

Recognising the harm to victims – Section 3A(g)

The sentencing purpose of recognizing harm to the victims aims at identifying and accepting the harm the offender’s actions has caused to victims or to the community at large. The recognition of harm purpose of sentencing allows the sentencing Court to set out the content of a victim’s impact statements detailing how the offender’s actions have impacted their life when sentencing the offender. 

Sentencing Principles – Proportionality

The principle that the penalty for the offence must be proportionate to the offence committed is well established in NSW sentencing. The decision of Veen v The Queen (No 2) 1988 164 CLR 465 held that “the sentence should not be increased beyond what is proportionate to the crime in order merely to extend to the period of protection from the society from the risk of recidivism and on the part of the offender.”

To ensure the penalty is proportionate to the offence, the Court is required to assess the objective seriousness of the offence. To achieve proportionality, regard must be had to the gravity of the offence viewed objectively because without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. 

Objective Seriousness or Objective Sentencing Factors:

The Court will look to and consider the objective factors or objective seriousness of the offence. The objective factors are circumstances that relate to the nature of the offending. 

When determining the objective seriousness for an offence, the Court will look to:

• The offending conduct, 
• The offender’s mental state at the time of the commission of the offence, 
• The consequences of offending, 
• The offender’s motive, 
• Degree of provocation, 
• Non-exculpatory duress, 
• The offender’s age,
• If relevant, the applicable standard non-parole period.

Standard Non-Parole Periods

Standard non-parole periods are legislative guideposts that are set by Parliament which prescribe a period of imprisonment as the standard penalty that a person should receive as the sentence for the offence. Standard non-parole periods indicate Parliament’s assessment of the seriousness of the offence and Magistrates and Judges are required to take these periods into account when determining the appropriate sentence for the offence. 

Standard non-parole periods can range from 3 years to 25 years depending on the offence, for example, an offence of ‘Possess or Use Prohibited Weapon’ carries a 5 year standard non-parole period. A standard non-parole period does not mean a person will automatically be sentenced to imprisonment for that period of time, but it is an important sentencing factor that will be considered and weighed against the objective seriousness of the offence, the offender’s moral culpability and the offender’s subjective circumstances.   

Aggravating and Mitigating Factors:

The Crimes (Sentencing Procedure) Act 1999 creates a list of aggravating and mitigating factors that apply to sentences at Section 21A. The Court is unable to have regard to any above aggravating or mitigating factor if that factor is an element of the offence. 

Aggravating Factors

Aggravating factors are circumstances that operate to increase the seriousness of the matter. The complete list of factors is contained under Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. For aggravating factors to be taken into account they must be proved beyond a reasonable doubt. Some aggravating factors include where: 

• The victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
• The offence involved the actual or threatened use of violence or a weapon,
• The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
• The offence was committed in company, in the presence of a child, or in the home of the victim or any other person, 
• The offence involved gratuitous cruelty, 
• The injury, emotional harm, loss or damage caused was substantial,
• The offence was partially or wholly motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged,
• The offence was committed without regard for public safety,
• The offender abused a position of trust or authority in relation to the victim,
• The victim was vulnerable, 
• The offence involved multiple victims or a series of criminal acts,
• The offence was part of a planned or organised criminal activity,
• The offence was committed for financial gain. 

Mitigating Factors

Mitigating factors are circumstances that operate to mitigate or reduce the seriousness of the offence. The complete list of mitigating factors is found at Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999. For mitigating factors to be taken into account, these factors need to be proved on the balance of probabilities. These factors include where: 

• The injury, emotional harm, loss or damage caused by the offence was not substantial,
• The offence was not part of a planned or organised criminal activity,
• The offender was provoked by the victim,
• The offender was acting under duress,
• The offender does not have any record (or any significant record) of previous convictions,
• The offender is unlikely to re-offend,
• The offender has good prospects of rehabilitation, 
• The remorse shown by the offender for the offence,
• The offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
• A plea of guilty has been entered by the offender, or an offer to plead guilty to a different offence which was not accepted,
• The degree of pre-trial disclosure by the defence, 
• Assistance by the offender to law enforcement authorities (as provided by section 23),

Subjective Circumstances or Subjective Sentencing Factors:

The subjective factors are circumstances that are personal to the offender and include the offender’s age, background and some-post offence conduct. These factors are relevant to the sentencing purposes of punishment, personal deterrence, rehabilitation and the protection of the community.

When considering the subjective circumstances of the matter, the Court will look to:

• The prior criminal record of the offender, including whether the offender has received a non-conviction or has any spent convictions, 
• Whether there is undetected or ongoing criminal offending, 
• Whether there is a gap in the history of criminal offending, 
• Whether there are further offences committed after the offence being sentenced,
• The level of remorse or contrition by the offender for their actions, 
• The age of the offender,
• The health of the offender,
• The presence of any mental health or cognitive impairments,
• Whether the offender experienced a deprived background,
• Any hardship to the family or dependents of the offender because of the offence, or if the offender is sentenced to full-time custody, 
• Any delay in the proceedings and the impacts of the delay, 
• Whether the offender was on conditional liberty when committing the offence, 
• Any post-crime conduct or voluntary rectification by the offender. 

Conclusion:

It is clear from the above that the sentencing exercise involves complex competing factors that must be weighed and measured against each other to arrive at the appropriate penalty. That is why having an experienced criminal lawyer is essential. A seasoned advocate does more than just present your case to the Court—they distill these complexities to highlight the mitigating and favourable factors, argue for the principles that matter most, and persuasively steer the Court toward the appropriate outcome.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.