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17 All sentencing legislation in Australia outlines the purposes that may be considered when imposing a sentence. The main purposes are: Punishment - usually means imposing a sentence that inflicts...

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All sentencing legislation in Australia outlines the purposes that may
e considered when imposing a sentence. The main purposes are:
Punishment
- usually means imposing a sentence that inflicts some kind of
pain or loss on the offender.
Rehabilitation
- means imposing a sentence that will help to change the
offender's behaviour into that of a responsible citizen.
Specific dete
ence
- means discouraging the particular offender from committing
more crimes.
General dete
ence
- refers to the idea that potential offenders in the community
will be discouraged from committing a particular crime when
they see the penalty imposed for that kind of offence.
Denunciation
- is a formal public expression that the behaviour is
unacceptable to the community.
Community Protection
- means both protecting the community from the offende
and from crime generally.
Restorative justice
- means promoting the restoration of relations between the
community, the offender and the victim.Brisbane Magistrates Court. Image: Qld Magistrates Court
The purposes of sentencing
18
Often the purposes of sentencing overlap, and it is very rare for a
sentence to be imposed for only one purpose.
For example, a prison sentence could be imposed for "specific" and
"general" dete
ence, as well as for rehabilitative purposes. The court
might think that the convicted person should receive psychiatric
treatment or be placed in a drug or alcohol management program
while in prison.
Of course, a prison sentence might simply be imposed to punish the
offender by depriving him or her of freedom for a period.
Different crimes
The purposes of sentencing may differ for different crimes, depending
on their seriousness. For crimes like murder or armed ro
ery, the
major purposes are likely to be punishment and general dete
ence.
For less serious crimes such as graffiti or malicious damage, the
judicial officer might view rehabilitation as the major consideration
when imposing the sentence.
Different offenders
If the offender is a young person, the judicial officer might see it it as
more desirable to attempt to rehabilitate the offender, rather than
punish him or her. On the other hand, an older offender with a long
list of prior convictions might be considered suitable for a punitive o
community protection sentence.
Different purposes – similar result
A young offender might be sentenced to a juvenile detention centre by
one judicial officer for dete
ent purposes, while another might do the
same in the hope of rehabilitating the offender.
Balancing the reasons for a sentence
Statue at the Supreme Court building,Melbourne. Image: Vic.Dept of Justice
19
District Court with jury - Western Australia. Image: WA District Court
20
Sentencing legislation specifies the matters that courts must take into
account when passing sentence. These include:
The nature and circumstances of the offence
Offences vary greatly in the way they are committed. Some crimes
are planned, others occur on the spur of the moment; some cause
great harm to the victim, others very little; some are committed
alone, others by gangs.
The degree of criminality
The number of offences and their seriousness are relevant to the
degree of criminality.
The victim’s circumstances
Some victims may be young or very old, or more vulnerable to crime
ecause they are physically or mentally incapacitated or for othe
easons. Such factors may wa
ant a more severe sentence.
Any injury, loss or damage
A judicial officer must weigh up the degree of loss or the extent of
injury to the victim in order to determine how serious the particula
is to be regarded.
Any mitigating factors
These could include whether the offender has shown contrition fo
the offence; whether he or she has pleaded guilty; whether the
offender has attempted any form of restitution; and the extent to
which the offender has co-operated with law enforcement agencies
investigating the particular offence or other offences.
Continued next page:Minimum securuty inmates doing forestry work. Image: NSWDC
What sentencing laws require
21
The offender’s personal circumstances
The character, previous behaviour (including any criminal
ecord), cultural background, age, means and physical or mental
condition of the offender are also likely to be considered.
An older offender with many prior convictions who has failed
to respond to previous court orders will generally be treated
more severely than a young first time offender who, if given a
chance, might turn away from a criminal career.
The offender’s family or dependants
The judicial officer may consider the effect that any sentence
might have on the offender's family or dependants.
However only in cases of exceptional hardship does the court
take into account the effect of imprisonment on an offender’s
family.
Court cells, Adelaide. Image: Ben Searcy Photography
As a general rule, a judicial officer should not impose a
sentence that is more severe than is necessary to achieve
the purpose for which the sentence is imposed.
If being ordered to do work in the community rather than
eing imprisoned can adequately punish an offender, then
the judicial officer should require the offender to perform
community service.
Avoiding unnecessary punishment
22
The sentencing options
Imprisonment is the most severe sentence available to the courts in
Australia, as capital punishment has long been abolished. Prisons are
classified as high, medium or low security, but a judge cannot direct the
prison authorities where to hold a person sentenced to imprisonment.
Most longer sentences of imprisonment will include a period of
parole. Conditions of release on parole include supervision.
Offenders can be returned to prison if they
each the conditions of
their release.
These orders may require an offender to perform unpaid work in the
community, attend educational or rehabilitative programs, be super-
vised by a co
ectional officer or undergo assessment or treatment.
Home detention requires an offender to remain in his or her house fo
a certain period of time.The person may be allowed outside the house
at times during the day or at times in the week, and may be subject to
supervision and electronic monitoring. Home detention may also be a
condition of bail, or a condition of release from prison on parole.
A fine can be imposed as an alternative or addition to a prison o
community sentence. Judicial officers take into account the financial
circumstances of an offender when imposing a fine. Courts are aware
that a fine of $1,000 may be less punitive to a wealthy person than a
fine of $100 would be to a person on a low income.Furniture workshop, maximum security. Image: NSWDC
Imprisonment
Community based sanctions
Home detention
A fine
23
Putting it all togethe
The judicial officer's task is to determine the appropriate sentence
after taking into account all the relevant circumstances.
The sentence may not fully satisfy anyone – the victim, the offende
or the public – but that does not necessarily mean there is anything
wrong with it. On the contrary, it may well indicate that the judicial
officer has appropriately balanced all the competing considerations
(see Purposes of sentencing - page 17).
If the offender or the prosecution thinks a judicial officer has made a
mistake in sentencing – for instance if they believe a sentence is too
harsh or too lenient – they can appeal to a higher court. Sometimes
sentencing appeals go all the way to the High Court in Canbe
a.
Usually, an appeal court cannot just substitute its own opinion on what
is an appropriate sentence. It can only change the sentence if it believes
the lower court has made a legal mistake in exercising its discretion.
Although many cases go through the courts each year, relatively few
cases are appealed.
For example, in New South Wales in 2005, 120,565 persons were
found guilty in the Local Courts. There was an appeal against the
severity of sentence in 4.2% of cases, and against the inadequacy of
sentence in only 0.03% of cases.
Image: Vic.Dept. of Justice
Appeals
The fact that a criminal case is newsworthy does not mean that
most people consider the sentence imposed on the offender to
e inappropriate. But media interest in a trial often leads to the
sentence receiving very close public scrutiny.
The media may be interested in a criminal case for many reasons.
The alleged offender may be very well known, as with high profile
usiness people involved in corporate failures or sporting
identities who fall foul of the law.
The circumstances of the offence may be particularly ho
ifying
or distu
ing, as with gruesome murders, "gang" rapes or sexual
abuse of children.
Sometimes ordinary things we do – like driving cars – produce
tragic consequences that can attract widespread attention.
Newsworthiness
LLeefftt:: Ba
ister John Doris is su
ounded by media during a high profile murde
trial at Sydney District Court. Photo Adam McLean - courtesy:The Age
24
25
Common criticisms of sentencing
Criticisms are frequently made of particular sentences and of the
sentencing process generally. Usually the critics argue that sentences
are too lenient and that judicial officers are "out of touch" with
community opinion.
The cases that attract this kind of criticism tend to involve particularly
utal conduct by the offender, particularly tragic consequences fo
innocent victims, or both.
Because the media concentrates on the more sensational cases, most
people have very little information about the much more typical cases
that are dealt with by the courts.
Of the more than 740,000 sentences imposed by Australian courts
each year, the vast majority follow a standard pattern for the particu-
lar offence.
More than 95% of these cases are dealt with in the Magistrates o
Local Courts. These decisions are usually unreported and uncontro-
versial and generate little or no public debate.
For the most part, prosecutors, victims and offenders accept the out-
comes as reasonable and do not appeal. Because these cases form
the majority of sentencing decisions in Australia, it is fair to say that
the system is working effectively and consistently.Victorian Chief Justice Marilyn Wa
en (pictured above) said in a
paper in April 2005:
“Of the thousands of cases dealt with in higher courts each year,
most appeals against sentence complain that they are too severe.
“Those cases are rarely reported in the media. It is not surprising,
therefore, that the public may gain a distorted impression of sen-
tencing practices in Victoria”.
Defence appeals against sentence severity 1,314
Appeals against inadequacy of sentence 269
Appeals against sentencing NSW XXXXXXXXXX

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About these notes
You be the Judge is a package of teaching materials on sentencing in Victoria. It covers sentencing theory and practice using case studies based on real cases (names and some details have been changed). Working individually and in groups, students investigate and discuss aspects of sentencing, including their own and community values, and then decide on a fair sentence in the case. Finally, students compare their sentences to that imposed by the court in the real-life case. Teachers should read these PowerPoint slides and notes in conjunction with:
Answered Same Day Jun 17, 2021

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Jose answered on Jun 18 2021
149 Votes
The University of Queensland
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1.0 Discuss content covered in topic for findings from the crime analysis task;
The major content covered in the topic is connected with sentencing legislation in Australia. While analysing the findings from the crime analysis task we can understand that Judge considers different aspect while taking the final decision. They are different types of crimes and offences, the judge takes the final verdict by considering the seriousness of the crime and situation that lead him to commit the crime.
2.0 Discuss the skills used in research/noting/planning for the task;
For planning for the task, we used analytical skill and communication skill. We know the fact that for understanding the various aspects related to crime we have to use our...
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