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Sentencing

Sentencing takes place after the offender has either pleaded guilty to or been found guilty of the offence/s.

The sentencing process can be complex as a number of factors need to be taken into account by the judge or magistrate. These factors are set out in the Crimes (Sentencing) Act 2005 and the court must have regard to these factors in sentencing an offender.

Sentencing adult offenders

Sentencing young offenders 

Possible sentencing outcomes 

Sentencing of adult offenders

Purposes of sentencing

Section 7 of the Crimes (Sentencing) Act 2005, outlines the reasons a court may impose a sentence on an offender. They include:

  • ensuring that the offender is adequately punished in a way that is just and appropriate;
  • deterring the offender and other people from committing the same or similar offences;
  • protecting the community from the offender;
  • promoting the rehabilitation of the offender;
  • making the offender accountable for his or her actions;
  • denouncing the conduct of the offender; and
  • recognising the harm done to the victim of the crime and the community.

Relevant considerations for sentencing

In sentencing a person, the court must consider certain factors as outlined in Section 33 of the Crimes (Sentencing) Act 2005 including;

  • the nature and circumstances of the offence;
  • other offences required or allowed to be taken into account;
  • if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct;
  • any personal circumstances of any victim known to the offender when the offence was committed;
  • any injury, loss or damage resulting from the offence;
  • the effect of the offence on the victims of the offence and their families and anyone else who may make a victim impact statement;
  • if the victim of the offence was a pregnant woman – whether the offender knew or was likely to know, whether they intended to cause or did cause harm to or loss of the pregnancy, and whether they intended to cause or did cause the death or harm to a child born alive;
  • any reparation the offender may have made for any injury, loss or damage;
  • the degree of responsibility of the offender;
  • a plea of guilty by the offender;
  • any assistance by the offender to law enforcement authorities;
  • the character, prior events, age, cultural background and physical and mental condition of the offender;
  • financial circumstances of the offender;
  • the probable effect on any of the offender's family or dependents;
  • the degree to which the offence was the result of provocation, duress or entrapment;
  • whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;
  • whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to their offending;
  • whether the offender was in a position of trust or authority when the offences were committed;
  • the reason why the offender committed the offence;
  • whether the offender has shown any remorse;
  • if the offender has accepted responsibility for the offence to take part in restorative justice;
  • whether the offender has paid any prescribed penalty.
  • current sentencing practice.

If the court considers that there is a real likelihood that it will sentence the offender to imprisonment and the offender has pleaded guilty, the court may impose a lesser penalty. In deciding whether to impose a lesser sentence, the court must consider:

  • when the offender pleaded guilty or indicated an intention to plead guilty;
  • whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
  • the seriousness of the offence;
  • the effect of the offence on the victim, their family and anyone else who may make a victim impact statement.

A court may reduce a sentence if the offender assisted law enforcement authorities in relation to the prevention, detection, investigation of an offence or proceedings relating to that offence. There are a number of factors the court must take into account when considering a reduction in sentence.

As part of sentencing a court may use a pre-sentence report prepared about the offender and may also have regard to any victim impact statement tendered to the court.

Sentencing of young offenders

A young offender is a person who was under 18 years of age at the time they committed the offence.

Purpose of sentencing

The purpose of sentencing is to:

  • Ensure that the offender is adequately punished;
  • Deter the offender and others from committing the same or similar offences;
  • Protect the community;
  • Make the offender accountable and denounce their behavior;
  • Promote the rehabilitation of the offender; and
  • Recognise the harm done to the victim.

In accordance with legislation a court must, in sentencing a young offender, consider the promotion of the rehabilitation of the young offender and may consider this above any other purpose.

Relevant considerations

In sentencing a young person, the Children's Court must consider certain matters, as set out in the Crimes (Sentencing) Act 2005;

  • the young offender's culpability for the offence having regard to his or her maturity;
  • the young offender's state of development;
  • the past and present family circumstances of the young offender.
  • the nature and circumstances of the offence;
  • other offences that are to be taken into account;
  • if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct;
  • any personal circumstances of any victim known to the offender when the offence was committed;
  • any injury, loss or damage resulting from the offence;
  • the effect of the offence on the victims of the offence and their families;
  • if the victim of the offence was a pregnant woman – whether the offender knew or was likely to know, whether they intended to cause or did cause harm to or loss of the pregnancy, and whether they intended to cause or did cause the death or harm to a child born alive.
  • any reparation the offender may have made for any injury, loss or damage;
  • the degree of responsibility of the offender;
  • a plea of guilty by the offender;
  • any assistance by the offender to law enforcement authorities;
  • the character, prior events, age, cultural background and physical and mental condition of the offender;
  • whether the offender was affected by alcohol or a controlled drug when the offence was committed;
  • financial circumstances of the offender;
  • the probable effect on any of the offender's family or dependents;
  • the degree to which the offence was the result of provocation, duress or entrapment;
  • whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;
  • whether the offender is voluntarily seeking treatment for any physical or mental condition;
  • whether the offender was in a position of trust or authority when the offences were committed;
  • reason why the offender committed the offence;
  • whether the offender has shown any remorse;
  • if the offender has accepted responsibility for the offence to take part in restorative justice;
  • whether the offender has paid the prescribed penalty in accordance with an infringement notice; and
  • current sentencing practice.

A court may also consider a pre-sentence report prepared about the offender. The court may also have regard to any Victim Impact Statement tendered to the court.

A court may only sentence a young offender to imprisonment as a last resort and for the shortest possible term and when sentencing a young offender to imprisonment must consider a combination sentence consisting of a sentence of imprisonment and a good behaviour order with a supervision condition. 

Possible Sentencing outcomes

The sorts of sentences that a Court may impose are:

  • imprisonment – the offender is held in full time custody;
  • periodic detention (offender must be 18 or over at the time of sentencing) – the offender spends each weekend in custody. This sentencing option is being phased out, and will cease in July 2016.
  • suspended sentences – a term of imprisonment is imposed but the offender does not have to go into full time custody. A suspended sentence is attached to a good behaviour order, if that order is breached then the offender may have to serve the suspended term in full time imprisonment.
  • community service order - the offender signs an undertaking to complete a set amount of community work in a set time frame. 
  • good behaviour orders – the offender signs an undertaking to comply with good behaviour conditions including accepting supervision by ACT Corrective services or Community Youth Justice;
  • fines – the offender pays a fine for the offence;
  • reparation orders – the court may order the offender to make reparation either by payment of money or another way;
  • non-association & place restriction orders – prohibits an offender from associating with a particular person or persons, or being within a stated distance of a particular place or places;or
  • deferred sentence orders – the offender is required to appear before the court at a time and place stated in the order to be sentenced for the offence. The offender may be required to complete a residential rehabilitation or some other treatment during this time. 

To help you understand the sentencing process as well as the sentence, speak to the police case officer or the prosecutor.