Sentencing Purposes (NSW)
When a court sentences an offender, it may do so with one or more sentencing purposes in mind. The purposes for which a sentencing order can be imposed are set out in section 3A of the Crimes (Sentencing Procedures) Act 1999. This page deals with sentencing purposes in New South Wales.
Legislation on sentencing purposes
Under section 3A of the Crimes (Sentencing Procedures) Act 1999, a sentence can be imposed for one or more of the following purposes:
- To ensure the offender is adequately punished for the offence;
- To deter the offender and others from committing similar offences;
- To protect the community form the offender;
- To promote the rehabilitation of the offender;
- To make the offender accountable for their actions;
- To denounce the offender’s conduct;
- To recognise the harm done to the victim and to the community
These sentencing purposes overlap and sometimes conflict with each other. Which sentencing purpose needs to be prioritised in an individual case depends on the circumstances of the offence and the circumstances of the offender.
Public deterrence is often regarded as the main purpose of sentencing. A sentence may be imposed in the interests of general deterrence or specific deterrence.
General deterrence is the need to deter the general community from committing similar offences. It is particularly relevant to offences that are very commonly committed such as drink driving and domestic violence. A sentence that is imposed in the interests of general deterrence is designed to send a message to the community that this kind of offending is unacceptable and will be punished.
Specific deterrence is the need to deter a particular offender from committing the same sort of offence again. It is most relevant in cases where the offender is a recidivist who is fully capable of understanding and controlling their actions. It is least relevant in cases where the offender has a limited ability to control their circumstances or their behaviour – such as where the offender is mentally ill or where they are a juvenile. A sentence that is imposed in the interests of specified deterrence is designed to send a message to the offender that this sort of offending will not be tolerated.
The sentencing principle of punishment is the idea that the penalty for an offence must reflect the objective seriousness of the offending. The sentence should be proportionate to the offender’s conduct and should not be too harsh or too lenient.
A sentence may be imposed to protect the community or a specific member of the community from an offender who is likely to offend again. However, the sentence that is imposed must be proportionate to the offence that has been committed. A sentence must not be imposed as a preventative measure to protect community members from future offending.
The sentencing purpose of rehabilitation is aimed at promoting the offender’s establishment as a productive and law-abiding member of the community. It aims to ensure the offender will not reoffend by addressing the underlying causes of their offending and promoting the person remodelling their behaviour.
A sentence that is imposed in the interests of rehabilitation may include supervision by community corrections and a requirement to take part in treatment programs, training courses or counselling, or a requirement to undertake unpaid community service work. A rehabilitative sentence will generally be tailored to the individual needs of the offender.
Rehabilitation is a particularly high priority when a court is dealing with a young offender.
Making the offender accountable
It has been noted in several cases that making an offender accountable for their actions is an important purpose of sentencing.
The sentencing purpose of denunciation consists of publicly condemning the offender’s conduct. The sentence should convey society’s condemnation of the person’s behaviour. The penalty should be ‘a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law’ (Kirby J in Ryan v The Queen, 2001).
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
The sentencing purpose of retribution aims at recognising the harm the offence has caused to victims or to the community at large. Retribution demands that the community feel that the offender has been given their just desserts and that the victims and their families feel that justice has been done.
Balancing sentencing purposes
When a court decides on the sentence to impose, it has regard to:
- The circumstances of the offence
- The maximum and minimum penalty
- The offender’s subjective circumstances
- Case law
Before deciding on the sentencing orders to make, the court will consider any Victim Impact Statements that have been tendered. These are statements by the victims of the offence detailing its impacts. This may include physical injuries, psychological and emotional effects, and any resulting changes to their lifestyle.
The court will also consider any mitigating factors or extenuating factors that the defence or prosecution have highlighted as applying to the offending.
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