Understanding Sentencing Principles in NSW: Your Guide to Fair Justice

When a court is determining the appropriate sentence for a person who has been convicted (found guilty), various factors must be taken into account under Section 21A of the Act:

1. Nature and circumstances of the case (ss(2)(a)): The seriousness of the offence plays a role in determining the severity of the penalty. More severe offences lead to harsher penalties.

2. Course of Conduct (ss(2)(b)): If the offence is part of a larger pattern of behavior by the offender, the court may consider this in sentencing. For instance, repeated serious offences within a short period might lead to a consolidated sentence.

3. Personal circumstances of any victim’ (ss(2)(c)): Crimes against vulnerable individuals receive heightened consideration, such as crimes against the elderly, young, or disabled.

4. Injury, loss or damage (ss(2)(d)): The extent of harm caused by the offence influences the severity of the sentence.

5. Degree of contrition (ss(2)(e)): The genuineness of the offender’s remorse, shown through actions like returning stolen items or compensating victims, is taken into account.

6. Deterrence (ss(2)(f)): Sentences aim to deter both the offender (specific deterrence) and the broader community (general deterrence) from committing similar offences.

7. Protection of the community (ss(2)(g)): The need to safeguard the community, especially from violent or serious offenders, is a factor.

8. Punishment (ss(2)(h)): Adequate punishment for the offence is considered.

9. Character, antecedents, cultural background, age, means and physical or mental condition (ss(2)(i)): The Judge must consider any relevant personal factors related to the offence.

10. Rehabilitation Prospect (ss(2)(j)): The likelihood of the offender reforming their behavior and undergoing rehabilitation is taken into consideration.

These factors collectively guide the court in determining an appropriate sentence that aligns with the principles of justice and the specific circumstances of the case. If you require legal guidance or representation, feel free to reach out to us at KPT Defence Lawyers. We are here to assist you.

Significance of Section 22 in Sentencing

In accordance with section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Magistrate/Judge is obligated to take into account the defendant’s ‘guilty’ plea and has the authority to lessen the penalty as a result.

For instance, if a potential sentence of 2 years in prison would have been imposed had the defendant pleaded ‘not guilty’ and then been found ‘guilty’, the Judge might opt for a reduced sentence of 18 or 20 months.

The degree of reduction is influenced by several factors, including:

1. Timing of the Plea: An early ‘guilty’ plea made during the prosecution process often leads to a more favorable reduction compared to a plea entered later.

2. Strength of the Prosecution’s case: If the Defence can demonstrate that the Prosecution’s case was notably weak, the value of the ‘guilty’ plea is typically greater.

3. Community Benefit: The time and costs saved by avoiding a lengthy trial contribute to the decision to reduce the penalty.

4. Prevention of Suffering: For instance, sparing a victim of sexual assault the distress of testifying at trial can be a factor.

Section 22 acknowledges the importance of ‘guilty’ pleas in simplifying legal proceedings, promoting efficiency, and considering the well-being of victims. If you require legal assistance or representation, please reach out to us at KPT Defence Lawyers. We are ready to support you.

In addition to reductions for ‘guilty’ pleas, there are further instances where the Judge can exercise discretion to reduce the sentence.
Defence Disclosure (Section 22A):

When the Defence shares their case, in part or in full, with the Prosecution before the trial, the Judge can consider this cooperation as a factor for a reduction. This encourages transparency and may contribute to more efficient legal proceedings.
Cooperation with Authorities (Section 23):

If the offender assists law enforcement agencies, such as the police or customs officers, in their investigations, a reduction in sentence can be granted. For example, if an individual involved in drug dealing provides information or evidence against other members of a drug syndicate, a reduction may be considered.

The extent of cumulative reduction can vary, typically ranging from approximately 5% to around 25-30%, depending on the specific circumstances of the case. These reductions acknowledge the value of cooperation, collaboration, and the promotion of a fair and just legal process.

For professional legal guidance or representation, please don’t hesitate to contact KPT Defence Lawyers. We are here to provide expert assistance tailored to your situation.

Comprehensive Sentencing Approach

In the pursuit of just and equitable sentencing, the principle of ‘totality’ plays a pivotal role. It guides the Judge to consider the entirety of an offender’s criminal conduct when determining an appropriate sentence.

Where an individual commits multiple offences during a single criminal episode, such as a bank robbery involving assault and causing fear to others. Instead of imposing separate penalties for each offence, the Judge integrates all aspects of the criminal conduct into a unified sentence. Similarly, if an offender is found guilty of several crimes within a short timeframe, like a series of armed robberies over a couple of weeks, the Judge will apply a single comprehensive sentence.

To facilitate this approach, a legal instrument called a ‘Form 1’ is often utilised in New South Wales. This form allows the inclusion of pending or future minor offences, which the offender may admit to during the sentencing process. By doing so, the court can address all offences collectively and deliver a cohesive sentence.

By embracing the ‘Form 1’ procedure, the sentencing process becomes more efficient, sparing both the offender and the criminal justice system unnecessary burdens. This method promotes consistency, streamlines proceedings, and ensures a holistic assessment of an offender’s criminal behavior.

For expert legal support and guidance tailored to your situation, reach out to KPT Defence Lawyers. We are dedicated to helping you navigate the complexities of the legal system effectively.

Establishment of Sentencing Uniformity

The principle of ‘parity’ underscores the fundamental concept that similar offences should result in comparable punishments within the legal system.

Where an individual is sentenced to 3 years in prison for a specific combination of crimes (e.g. armed robbery, assault, and affray). The principle of ‘parity’ dictates that individuals who commit a similar combination of crimes should generally receive a similar prison sentence.

Likewise, when co-accused individuals share similar backgrounds, ages, and levels of involvement in an offence, the principle of ‘parity’ guides the court to ensure that their sentences exhibit a degree of uniformity.

To enhance consistency in sentencing, the Supreme Court of New South Wales has introduced ‘Guideline Judgments.’ These judgments aim to define appropriate penalties for specific offences, reducing discrepancies in sentencing outcomes among similar offenders.
Furthermore, in the context of driving offences, the establishment of ‘minimum and maximum license disqualification periods’ aims to prevent unequal treatment. This ensures that individuals who commit the same driving offence face consistent and appropriate consequences, fostering a sense of fairness and equity within the legal system.
For comprehensive legal guidance tailored to your situation, KPT Defence Lawyers is here to assist you. Our experienced team is committed to upholding the principles of equity and uniformity in the pursuit of justice.

Sentencing decisions are influenced by factors such as the nature and severity of the offence, the defendant’s criminal history, the presence of mitigating or aggravating circumstances, and the applicable sentencing guidelines.

Alternatives to custody may include good behaviour bonds, community correction orders, fines, restitution, drug or alcohol treatment programs, intensive correction orders and full time imprisonment.

To avoid the possibility of a custodial sentence, it is strongly advised to consult with an experienced criminal defence lawyer. They play a pivotal role in assessing potential defences, engaging in negotiations for favorable plea agreements, and guiding the process of presenting mitigating evidence including character references and work history, to demonstrate your commitment to rehabilitation. Additionally, it is essential to explore alternative sentencing options and actively participate in relevant programs while strictly adhering to any court-ordered conditions. Expressing genuine remorse, accepting responsibility for your actions, and diligently preparing a compelling case for sentencing are also vital steps. An experienced criminal defence lawyer will provide the necessary guidance and representation to help you achieve the most favorable outcome possible.

Yes, in some cases, bail may be granted to individuals pending sentencing, allowing them to remain free whilst on conditional liberty until their sentencing hearing.

Yes, some jurisdictions offer parole or early release programs that can reduce the length of a custodial sentence based on good behavior and participation in rehabilitative programs.

A person who has been found guilty of a crime can appeal against their conviction and/or against their sentence if they believe it is too harsh. If you appeal the sentence that has been imposed, this is called a severity appeal. If you appeal both your conviction and your sentence, this is called an ‘all grounds appeal’.

To initiate the appeal process, it is essential to file a notice to appeal within 28 days of the sentence being handed down. The matter will then be scheduled for rehearing at a higher court. The appellant and their legal representation will present their case before a different judicial body, which will review the evidence, legal arguments, and any new information presented during the appeal.

The higher court will then render a decision regarding the appeal. This decision may result in the conviction being upheld, overturned, or modified, or the sentence may be adjusted based on the court’s findings.

A pre-sentence report provides the court with information about the defendant’s background, criminal history, and circumstances, helping the judge make an informed sentencing decision.

A concurrent sentence means that multiple sentences are served at the same time, while a consecutive sentence means that one sentence begins after another is completed.

Having a criminal record can affect many areas of your life. It can affect your employment as well as your ability to get certain licenses, for example, for a firearm. It can also have immigration consequences.

However, in NSW for most offences of less than 6 months imprisonment, the conviction will be considered “spent” after 10 years if you do not reoffend in that period.