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December 16, 2014
Sentencing Process in WA

By Christopher Townsend

The sentence imposed on a person who is either found guilty after a trial, or has opted to plead guilty, is determined by a judicial officer – either a magistrate or a Judge. Whilst the judicial officer has the responsibility, and exercises the discretion, to determine an appropriate penalty much of what they do is guided by Parliament.

Thus the responsibility of sentencing is shared between Parliament (who creates the offences and specifies maximum penalties) and the Courts (which apply the law within the framework set by Parliament, determine an appropriate sentence dependent on the matrix of facts specific to the offending and individual, and in the case of higher courts, specify principles for the lower courts to follow).

Which Legislation Governs The Sentencing Process?

Judicial officers, whilst afforded some level of discretion, cannot simply impose a sentence without any legislative basis. They must exercise their discretion within the confines of the limits set by legislation, and the principles laid down by the superior courts.

Two pieces of legislation must be considered in the sentencing process. The first is the Act that provides guidelines generally in relation to sentencing. In the case of state offences committed in Western Australia, this Act is the Sentencing Act 1995.

The second piece of legislation is the specific law that defines the crime. Depending on the type of crime, this could be in the Criminal Code or the Road Traffic Act.

Sentencing legislation specifies matters that the Courts must take into when determining an appropriate sentence. These include:

• The nature/circumstances of the offence:
Offences can vary in the context in which they are committed. Some are planned extensively, whilst others are committed on the spur of the moment.

• The degree of criminality:
This requires the Court to take into account the number of offences, and their respective seriousness.

• The victim’s circumstances:
Matters individual to the victim need to be taken into account by the Court. The vulnerability of the victim can have a significant effect upon the Court’s view of seriousness.

• Any injury, loss or damage:
The Court must determine the extent of loss or damage that has occurred in determining an appropriate sentence.

• Any mitigating factors:
These are matters which lower the culpability of the offender and generally result in the sentence imposed being lessened. Matters can include contrition of the offender, early pleas of guilty, any restitution, and any cooperation with law enforcement agencies.

• The offender’s personal circumstances:
The Court needs to take into account the character, previous record, cultural background, age and physical or mental condition of the offender when determining an appropriate sentence.

• The offender’s family or dependents:
In rare cases, the Court may take into account the effect that any sentence may have on the offender’s family or dependents.

The Sentencing Hearing

In order to determine an appropriate sentence, a wide variety of information is presented to the Court, both in favour of the offender, and on behalf of the State. This is done, so as to allow the Court to have a broad ‘picture’ of all the factors related to the offending, and circumstances idiosyncratic to the offender.

In general, there are three main issues that a judge or magistrate must consider in exercising his or her sentencing discretion. They are:

• Factors that are mitigating:
These are any matters that decrease the culpability of the offender, and generally, have the result of reducing the sentence imposed (as considered above)

• Factors that are aggravating:
These are any matters that increase the culpability of the offender, and generally, have the result of increasing the sentence imposed.

• The purpose(s) to be achieved by the sentence imposed:
These include punishment, rehabilitation, specific deterrence (deterring the particular offender), general deterrence (deterring the community at large), denunciation, community protection and restorative justice.

Sentencing Options

After the Court has considered all the information set out above, they must determine an appropriate sentence that reflects a consideration of the same.

It must be within the bounds of an appropriate sentence set by Parliament and Courts at a higher level, whilst being tailored to the idiosyncrasies of the specific case. Having done this the Court may impose:

• Imprisonment:
This is the most severe sentence available to the Court. Longer terms of imprisonment will also include a period of parole with conditional release. The Court further has the option of either ordering the term imposed to be served immediately, or to be suspended for a period.

• Community Based Sanctions:
The Court may require an offender to perform unpaid work, attend rehabilitative programs, be supervised by a correctional officer, or undergo treatment.

• Home Detention:
The Court may require an offender to remain in his or her house for a certain period of time, only allowing a person outside the house at times during the day. This may also be imposed as a condition of bail, or conditional release on parole.

• A Fine:
A fine can be imposed as an alternative, or in addition to any of the above sentences. Judicial officers should take into account the financial circumstances of the offender when determining an appropriate penalty.

Commonwealth Offences:

Should an offender be charged, and convicted of a Commonwealth Offence, the same sentencing process applies. However, rather than the Sentencing Act 1995 being used as legislative basis for sentencing, the judicial officer refers to the Crimes Act and the principles contained therein.

These principles are, in general, the same as in Western Australia’s  state sentencing regime.

Contact Christopher Townsend of LBH on ctownsend@lbandh.com.au