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1.) What are the purposes of punishment?
2.) Which purposes of sentencing should judges take into
account?
3.) Should victim impact statements be able to influence
the determination of a sentence in homicide cases?
4.) How should judges use the standard non-parole period
when determining a sentence?
The task of the sentencing judge or magistrate is not to add or subtract from an
objectively determined sentence but to balance the various factors and make a value
judgment as to what is the appropriate sentence in all the circumstances of the case.
McHugh J in Whyte
Two-Tier Approach = sentence that is proportionate to offence +/- individual circumstances
(sometimes referred to as objective +/- subjective factors)
Scathingly rejected by the Victorian Court of Criminal Appeal in Young
But problems with the synthesis approach?
Is the synthesis approach consistent with the practice of giving guideline judgments?
Sentencing Principles
Proportionality
Parsimony
Totality
Consistency
Individualised justice
Sentencing Options
Dismissal of charges and conditional discharge
Good behaviour bond
Non-association and place restriction orders
Deferred sentence
Suspended sentence
Fines
Probation
Community service orders
Intensive correction orders
Home detention
Restitution and compensation
Imprisonment
Life imprisonment
Dismissal of Charges
Crimes (Sentencing Procedure) Act 1999
10 Dismissal of charges and conditional discharge of offender
(b) an order discharging the person on condition that the person enter into
a good
behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into
an
agreement to participate in an intervention program and to comply with any
intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
the person, or
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied
that it would reduce the likelihood of the person committing further offences by
promoting the treatment or rehabilitation of the person.
Fines
17 Penalty units
(2) A court may impose a fine not exceeding 1,000 penalty units on an
offender whom it convicts on indictment of an offence to which this section
applies.
Defaulting on Fines
66 Suspension or cancellation of driver licence
(1) Roads and Maritime Services must, without further notice, suspend any driver licence
of a fine defaulter against whom it is required to take enforcement action for the balance of the
period of the licence.
67 Cancellation of vehicle registration
(1) Roads and Maritime Services may, without further notice, cancel the registration of all
or any motor vehicles of which a fine defaulter is the registered operator (or one of the
registered operators)
79 Making of community service order against fine defaulter
(1) The Commissioner may make a community service order requiring a fine defaulter to
perform community service work in order to work off the amount of the fine that remains unpaid.
87 Imprisonment following breach of community service order
(1) After a community service order is revoked under section 86 (1), the Commissioner
may by warrant commit the fine defaulter to a correctional centre to be kept there according to
the terms of the warrant for the period of imprisonment calculated in accordance with this
Division, unless the fine defaulter sooner pays the relevant outstanding fine.
Probation
Condition attached to a bond no formal statutory basis
Requires offender to be subject to supervision and control of Probation Service
9 Good behaviour bonds
(1) A court that finds a person guilty of an offence (whether or not it proceeds
to conviction) may make an order adjourning proceedings against the offender to a
specified date:
ICO Conditions
Crimes (Administration of Sentences) Regulation 2008, cl 175
the offender is to be of good behaviour and not commit any offence
the offender is to reside only at premises approved by a supervisor
the offender is to submit to breath testing, urinalysis or other
medically approved test procedures for detecting alcohol or drug
use, as directed by a supervisor
the offender is to undertake a minimum of 32hours of community
service work per month, as directed by a supervisor from time to
time
the offender is to engage in activities to address the factors
associated with his or her offending as identified in the offenders
assessment report
the offender is to submit to a medical examination by a specified
medical practitioner, in relation to the offenders capacity to
undertake community service work
Home Detention
6 Home detention
(1) A court that has sentenced an offender to imprisonment for not more than
18 months may make a home detention order directing that the sentence be served
by way of home detention.
78 Suitability of offender for home detention
(1) A home detention order may not be made with respect to an offenders
sentence of imprisonment unless the court is satisfied:
(a) that the offender is a suitable person to serve the sentence by way
of home detention, and
(c) that the persons with whom it is likely the offender would reside, or
continue or resume a relationship, during the period of the offenders home
detention have
consented in writing to the making of the order, and
(d) that the offender has signed an undertaking to comply with the
offenders
obligations under the home detention order.
The object of this Part is to recognise and promote the rights of victims of crime.
23 Eligibility for support
(1) A primary victim of an act of violence is eligible for the support under the Scheme described in
section 26.
(2) A parent, step-parent or guardian who is caring for a child who is a primary victim of an act of
violence is eligible for the support under the Scheme described in section 27.
(3) A secondary victim of an act of violence is eligible for the support under the Scheme described in
section 28.
(4) A family victim of an act of violence is eligible for the support under the Scheme described in
section 29.
19 "act of violence" means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(1) The support under the Scheme for which a primary victim of
an act of violence is eligible comprises the following:
(1) The support under the Scheme for which a family victim of an
act of violence is eligible comprises the following:
Imprisonment
5 Penalties of imprisonment
(2) The balance of the term of the sentence must not exceed onethird of the non-parole period for the sentence, unless the court decides
that there are special circumstances for it being more (in which case the
court must make a record of its reasons for that decision).
Prisoner Categories
Parole
Crimes (Administration of Sentences) Act 1999
135 General duty of Parole Authority
(1) The Parole Authority must not make a parole order for an offender unless it is satisfied, on the balance of
probabilities, that the release of the offender is appropriate in the public interest.
(2) In deciding whether or not the release of an offender is appropriate in the public interest, the Parole
Authority must have regard to the following matters:
(c) the nature and circumstances of the offence to which the offenders sentence relates,
(f) the likelihood of the offender being able to adapt to normal lawful community life,
(g) the likely effect on any victim of the offender, and on any such victims family, of the
offender being released on parole,
(h) any report in relation to the granting of parole to the offender that has been prepared by or
on behalf of the Probation and Parole Service, as referred to in section 135A,
(i) any other report in relation to the granting of parole to the offender that has been
prepared by or on behalf of the Review Council, the Commissioner or any other
authority of the State
Life Imprisonment
Crimes Act 1900
19A Punishment for murder
Life Imprisonment
61 Mandatory life sentences for certain offences
(ii) the use of other people acting at the direction of the person convicted of
the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, organising
and financing the offence, and
(d) the person committed the offence solely for financial reward.
Over-Representation of Indigenous
Population
How did this differ from the principles set out by Wood J in
Fernando?
in what ways could evidence of systemic disadvantage in
Indigenous communities still be taken into account in determining a
sentence?