A Judge or Magistrate must take into account a number of factors when sentencing an offender. Each offender and their personal situation are different. For a fair sentencing outcome, the Court must consider the facts of the offence, the circumstances of the offence, the subjective factors about the offender, relevant sentencing legislation, case law and the general pattern of sentencing by the Courts for particular offences.
As discussed in our previous blog “Fake News v Real Sentencing” we identified that first the Judge or Magistrate assesses the “objective seriousness” of the offence. Objective seriousness is the assessment by the Court to determine whether it may fall at the lower end or the mid or higher ends of seriousness.
To determine the objective seriousness, the judge or Magistrate must consider the facts and circumstances of the offence; and secondly, they may consider the personal circumstances where they are relevant. These are known as “subjective factors”.
This article looks at the law the Court follow when sentencing offenders.
THE LAW
Section 21A of the Crimes (Sentencing Procedure Act) 1999 (NSW) states that when determining the appropriate sentence for an offence, the court is to take into account any aggravating factors referred to in subsection (2) that are relevant and known to the court, the mitigating factors referred to in subsection (3) that are relevant and known to the court, any other objective or subjective factor that affects the relative seriousness of the offence.
WHAT IS AN AGGRAVATING FACTOR?
An Aggravating factor can increase an offenders sentence.
An aggravating factor is any fact or circumstance that increases the severity or culpability of a criminal act. There are a number of aggravating factors that may exist in a case. An example could be if the victim was a police officer or if the offence was committed with an actual or threatened use of violence or weapons.
Aggravating factors also includes recidivism, lack of remorse, amount of harm to the victim, or committing a crime in front of a child.
A list of all the aggravating factors can be found by clicking here for a direct link to the relevant section.
WHAT IS A MITIGATING FACTOR?
A Mitigating Factor can help an offender get a reduction in the sentence.
Common mitigating factors include:
- Lack of a prior criminal record;
- Minor role in the offence;
- Culpability of the victim;
- Past circumstances, such as abuse that resulted in criminal activity;
- Circumstances at the time of the offense, such as provocation, stress, or emotional problems that might not excuse the crime but might offer an explanation;
- Mental or physical illness;
- Genuine remorse;
- The injury, emotional harm, loss or damage caused by the offence was not substantial
The relative importance of each factor will vary, depending on the circumstances of the case.
WHAT IS A SUBJECTIVE FACTOR?
A Subjective Factor relates to the personal circumstance of the offender. Examples of subjective matters is the offenders criminal record, good character, age, any alcohol or drug additions and mental issues.
Our Sydney Criminal Lawyers have devised a step by step guide to ensure that subjective material such as character references, letter of apologies and prospects of rehabilitation are presented in your particular case.
SENTENCING PRINCIPLES
Section 3A of the Crimes (Sentence and Procedure) Act 1999 (NSW) (“Section 3A”) states that the purpose of sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.
The sentence imposed will be heavily influenced by the purposes of sentencing and these should always be considered when preparing a plea in mitigation.
Often our Criminal Lawyers in Parramatta use Section 3A to persuade the Court of the relevant purpose to which this section applies.
EARLY PLEA
A plea of guilty may allow an offender to attract a discount on their sentence in two respects: for providing a utilitarian benefit and as evidence of remorse.
A discount is given for the utilitarian value of the plea is sparing the need for victim’s to give evidence, as well as avoiding the time and expense of a defended hearing. The strength of the Crown case is not taken into account in evaluating the extent of the discount for the plea of guilty. In addition, the plea of guilty may be evidence of your client’s contrition or remorse for committing the offence.
In the case of R v KM [2004] it was held that court, when imposing sentences, for a number of offences must ensure the overall sentence is ‘just and appropriate’ and adequately reflects the overall criminality of all the offences. This principle seeks to ensure both that the sentence imposed for the offences is not crushing and that the sentences imposed for the offences are not lower than they otherwise would have been.
WHY NATIONAL CRIMINAL LAWYERS?
- National Criminal Lawyers ® (NCL) offers four (4) unique options which can be individually tailored to suite an offenders circumstances/needs. For example if you are charged with a criminal offence National Criminal Lawyers® gives you the option to
(1) Try and negotiate with prosecutors/police (plea negotiation);
(2) Plead Not Guilty and go to hearing/trial;
(3) Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing); and
(4) Plead guilty with full acceptance of the facts as set out by the police
If you, or someone you know is being investigated, has been accused or charged with a criminal offence joining forces with a great and affordable criminal law team such as National Criminal Lawyers® (NCL) can relieve the burden and pain and allow a plan to be made which navigates the way for the future.