Sentencing Principles (WA)

In Western Australia, courts impose sentences for criminal offences under the Sentencing Act 1995. When a court is determining the appropriate penalty to impose, it must consider the sentencing principles set out in section 6 of the Sentencing Act 1995 as well as common law sentencing principles. This page deals with sentencing principles in Western Australia.

Legislation and sentencing principles

Under section 6 of the Sentencing Act 1995, the penalty imposed must be commensurate with the seriousness of the offence, which is determined by reference to:

• The statutory penalty
• The circumstances including the vulnerability of the victim;
• Any aggravating factors
• Any mitigating factors

Under section 6, a court must not impose a sentence of imprisonment unless:

• The seriousness of the offence means that only imprisonment can be justified; or
• The protection of the community requires it.

Common law sentencing principles

Under the common law, a sentence can be imposed for one or more of the following purposes:

• To deter the offender or the general community from committing these sorts of offences
• To denounce the offender’s conduct
• To punish the offender adequately for their actions
• To rehabilitate the offender
• To protect the community from the offender
• To make the offender accountable for their actions
• To recognise the harm done to the victim and to the general community

These principles overlap and at times, conflict with each other. In any individual case, some sentencing principles will be a higher priority than others because of the circumstances of the offence or of the offender.

Deterrence

In many cases, public deterrence is the paramount concern at sentencing. A court may impose a sentence in the interests of general deterrence, specific deterrence, or both.

General deterrence refers to the need to deter the community at large from committing these sorts of offences. It is most likely to be prioritised in cases involving common types of offending such as domestic violence and drink driving.

Specific deterrence refers to the need to deter this particular offender from committing these sorts of offences again. It is most likely to be prioritised where the offender is a recidivist and the court considers they are likely to reoffend again if not sent a strong message that the offending is unacceptable.

Specific deterrence is not generally a consideration where the offender has very unusual circumstances or limited control over their circumstances – such as where the defendant is mentally ill or where they are a child.

Rehabilitation

Rehabilitation is a very important sentencing principle, particularly where the court is dealing with a young offender. Rehabilitation is aimed at promoting the defendant’s establishment as a law-abiding and productive citizen.

A sentence aimed at rehabilitation will generally be tailored to the unique needs of the offender. It may require them to take part in programs, training or counselling or may require them to carry out community service work.

Denunciation

Denunciation is public condemnation of the offender’s actions. It is particularly relevant as a sentencing principle in cases involving crimes that violate the moral standards of the community such as child sex offences.

Community protection

Sentencing orders can also be made to protect the community or a specific individual. However, a sentence must be proportionate to the offence that has been committed. It must not be imposed as a preventative measure to protect the community from future offending.

Punishment

The principle of just punishment means that the sentence must adequately reflect the objective seriousness of the offence. It should not be too harsh or too lenient.

Recognising harm

A sentence should recognise that harm that the offence caused to the victim or to the community as a whole. The public and in particular the victim should feel that justice has been done.

Making offender accountable

Making the offender accountable for their actions has also been noted as a sentencing purpose in case law.

Balancing sentencing principles

Before a court hands down a sentence, it must consider which of the above principles should be prioritised. In making this assessment it will consider the submissions that have been made by the defence and prosecution, any Victim Impact Statements that have been tendered and any steps the offender has taken to make amends for their actions.

Where criminal organisation involved

Under section 9C of the Sentencing Act 1995, a court that is dealing with offences committed at the direction of, in association with or for the benefit of a declared criminal organisation, must sentence with the principal objectives of:

• Denouncing the activities of the criminal organisation and its members and associates
• Protecting the community from those activities.

This means that when dealing with these offences, court do not have the discretion to prioritise other sentencing principles over denunciation and community protection.

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