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Crimes (Sentencing Procedure) Act 1999
Table of Contents
Application of the Act
[2-000]
Short statutory history
[2-010]
Primacy of the Act
Purposes of sentencing
[2-200]
The common law
[2-210]
Section 3A
[2-230]
To ensure that the offender is adequately punished for the offence: s 3A(a)
[2-240]
To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)
[2-250]
To protect the community from the offender: s 3A(c)
[2-260]
To promote the rehabilitation of the offender: s 3A(d)
[2-270]
To make the offender accountable for his or her actions: s 3A(e)
[2-280]
To denounce the conduct of the offender: s 3A(f)
[2-290]
To recognise the harm done to the victim of the crime and the community: s 3A(g)
[2-297]
Retribution
Penalties that may be imposed
Penalties generally
[3-000]
Interpretation of provisions imposing penalties
[3-010]
Effect of alterations in penalties
[3-020]
No double jeopardy
[3-030]
Power to reduce penalties
Penalties of imprisonment
[3-300]
Imprisonment as a sanction of last resort
[3-310]
Good practice to refer to s 5
Custodial and non-custodial community-based orders
Community-based orders generally
[3-500]
Introduction
[3-510]
Requirements for assessment reports
[3-520]
Multiple orders
Intensive correction orders (ICOs) (alternative to full-time imprisonment)
[3-600]
Introduction
[3-610]
Power to make ICO subject to Pt 5
[3-620]
Restrictions on power to make ICO
[3-630]
ICO is a form of imprisonment
[3-632]
Mandatory considerations when determining whether to impose ICO
[3-634]
ICOs available for sentences of 6 months or less
[3-635]
ICO assessment reports
[3-640]
ICO conditions
[3-650]
Multiple orders
[3-660]
Pronouncement of ICO by court, terms and commencement
[3-670]
Breaches of ICOs
[3-680]
Federal offences
[3-710]
Additional references
Community correction orders (CCOs)
[4-400]
Introduction
[4-410]
The legislative requirements
[4-420]
Procedures for making a CCO
[4-430]
Variation and revocation of CCO conditions
Conditional release orders (CROs)
[4-700]
Introduction
[4-710]
The legislative requirements
[4-720]
Procedures for making a CRO
[4-730]
Variation and revocation of CRO conditions
[4-740]
Transitional provisions for orders in force before 24 September 2018
Dismissal of charges and conditional discharge
[5-000]
Introduction
[5-005]
Orders made under s 10(1)(b) before 24 September 2018
[5-010]
Power to make s 10(1)(b) orders operates with s 9
[5-020]
Use of s 10 orders generally
[5-030]
Application of factors in s 10(3)
[5-035]
Corporations and s 10 orders
[5-040]
Use of s 10 orders for particular offences
[5-050]
Meaning and effect of s 10 orders
[5-060]
Demerit points and s 10 orders
[5-070]
Restriction on use of s 10 orders for s 203 Road Transport Act 2013
Conviction with no other penalty
[5-300]
Terms and scope
Deferral for rehabilitation or other purpose
[5-400]
Preliminary
[5-410]
Terms and conditions
[5-420]
Breach
[5-430]
Intervention programs
[5-440]
Declaration and regulation of intervention programs
Circle sentencing intervention program: Pt 7 Criminal Procedure Regulation 2017
Traffic offender intervention program: Pt 9 Criminal Procedure Regulation 2017
[5-450]
Restrictions on the power to make intervention program orders
Fines
[6-100]
Generally
[6-110]
Availability
[6-120]
Summary of procedure
[6-130]
Fine(s) imposed with other orders
[6-140]
Default provisions
[6-150]
Financial payment in lieu of fines
[6-160]
Fines for Commonwealth offences
[6-170]
Children’s Court
Non-association and place restriction orders
[6-500]
Availability of orders
[6-510]
Restriction
[6-520]
Types of orders
Breaches of non-custodial community-based orders
[6-600]
Commencing breach proceedings
[6-610]
Jurisdiction
[6-620]
Determining the breach
[6-630]
Consequences of determining a breach
[6-640]
Breaches should be regarded seriously
Sentencing procedures for imprisonment
Setting terms of imprisonment
[7-500]
Court to set non-parole period
[7-505]
Aggregate sentences
[7-507]
Settled propositions concerning s 53A
[7-510]
Special circumstances under s 44(2) or (2B)
[7-512]
Special circumstances generally
[7-514]
What constitutes special circumstances?
[7-516]
Giving effect to finding of special circumstances
[7-518]
Empirical study of special circumstances
[7-520]
Court may decline to set non-parole period
[7-530]
Court not to set non-parole period for sentence of 6 months or less
[7-540]
Commencement of sentence
[7-545]
Rounding sentences to months
[7-547]
Forward dating sentences of imprisonment
[7-550]
Information about release date
[7-560]
Restrictions on term of sentence
[7-570]
Court not to make parole orders
[7-580]
No power to impose conditions on parole orders
[7-590]
Warrant of commitment
[7-600]
Exclusions from Division
Standard non-parole period offences — Pt 4 Div 1A
[7-890]
What is the standard non-parole period?
[7-900]
Consideration of the standard non-parole period in sentencing
[7-920]
Findings as to where an offence fits relative to the middle of the range
[7-930]
Exclusions and inclusions from Pt 4 Div 1A
[7-940]
Use of cases decided before Muldrock v The Queen
[7-950]
Fixed terms and aggregate sentences
[7-960]
Court to give reasons if non-custodial sentence imposed
[7-970]
Brief history of Pt 4 Div 1A
[7-980]
Correcting sentences imposed pre-Muldrock
[7-990]
Further reading
Appendix A: Pt 4 Div 1A Table — standard non-parole periods
[8-000]
Appendix A: Pt 4 Div 1A Table — Standard non-parole periods
Appendix B: Legislative amendments relevant to Pt 4 Div 1A Table — standard non-parole periods
[8-100]
Appendix B: Legislative amendments relevant to Pt 4 Div 1A Table — standard non-parole periods
Concurrent and consecutive sentences
[8-200]
The principle of totality
[8-210]
Applications of the totality principle
[8-220]
Totality and sentences of imprisonment
[8-230]
Structuring sentences of imprisonment and totality
[8-240]
Sentences for offences involving assault by convicted inmate
[8-250]
Sentences for offences involving escape by inmate
[8-260]
Limitation on consecutive sentences imposed by Local Courts
[8-270]
Power to vary commencement of sentence
[8-280]
Application of Division to interstate sentences of imprisonment
Mandatory life sentences under s 61
[8-600]
Availability
[8-610]
Application
[8-620]
Extreme culpability
[8-630]
Comparison with common law cases that attract the maximum
[8-640]
Multiple offences
Sentencing procedures generally
Objective and subjective factors at common law
[9-700]
The interaction between s 21A(1) and the common law
[9-710]
The difficulty of compartmentalising sentencing considerations
[9-720]
The aggravating/mitigating binary fallacy
Objective factors at common law
[10-000]
Maximum penalty
[10-005]
Cases that attract the maximum
[10-010]
Objective seriousness and proportionality
[10-012]
Factors relevant to assessing objective seriousness
[10-013]
Objective seriousness findings
[10-015]
Objective seriousness and post-offence conduct
[10-020]
Consistency
[10-022]
Use of information about sentences in other cases
[10-024]
Use of sentencing statistics
[10-025]
Necessity to refer to “Explaining the statistics” document
[10-026]
Enhancements to JIRS statistics
[10-027]
Recent changes to JIRS statistics
[10-030]
Uncharged acts
[10-040]
Premeditation and planning
[10-050]
Degree of participation
[10-060]
Breach of trust
[10-070]
Impact on the victim
[10-080]
Possibility of summary disposal
[10-085]
Relevance of less punitive offences
Subjective matters at common law
[10-400]
Assessing an offender’s moral culpability
[10-405]
Prior record
[10-410]
Good character
[10-420]
Contrition
[10-430]
Advanced age
[10-440]
Youth
[10-450]
Health
[10-460]
Mental health or cognitive impairment
[10-470]
Deprived background
[10-480]
Self-induced intoxication
[10-485]
Drug addiction
[10-490]
Hardship to family/dependants
[10-500]
Hardship of custody
[10-510]
Entrapment
[10-520]
Extra-curial punishment
[10-530]
Delay
[10-540]
Restitution
[10-550]
Conditional liberty
[10-560]
Ameliorative conduct or voluntary rectification
[10-570]
Deportation
Sentencing following a retrial
[10-700]
“The ceiling principle”
Parity
[10-800]
Summary of relevant considerations
[10-801]
Introduction
[10-805]
A justifiable sense of grievance
[10-807]
Co-offenders with joint criminal liability
[10-810]
Co-offenders convicted of different charges
[10-820]
Juvenile and adult co-offenders
[10-830]
Parity and totality
[10-840]
Severity appeals and parity
[10-850]
Crown appeals and parity
Section 21A factors “in addition to” any Act or rule of law
[11-000]
Section 21A — aggravating and mitigating factors
[11-010]
Application of s 21A generally
[11-020]
Aggravating factors under s 21A(2) — summary of relevant considerations
[11-030]
Application of s 21A(2) — procedural rules and findings
[11-040]
Limitations on the use of s 21A(2) factors
[11-050]
Section 21A(2) and the
De Simoni
principle
[11-060]
Section 21A(2)(a) — victims who exercise public or community functions
[11-070]
Section 21A(2)(b) — the offence involved the actual or threatened use of violence
[11-080]
Section 21A(2)(c) — the offence involved the actual or threatened use of a weapon
[11-085]
Section 21A(2)(ca) — the offence involved the actual or threatened use of explosives
[11-087]
Section 21A(2)(cb) — the offence involved the victim being made to ingest intoxicating substances
[11-090]
Section 21A(2)(d) — the offender has a record of previous convictions
[11-100]
Section 21A(2)(e) — the offence was committed in company
[11-101]
Section 21A(2)(ea) — the offence committed in the presence of a child under 18
[11-105]
Section 21A(2)(eb) — the offence was committed in the home of the victim or any other person
[11-110]
Section 21A(2)(f) — the offence involved gratuitous cruelty
[11-120]
Section 21A(2)(g) — the injury, emotional harm, loss or damage caused by the offence is substantial
[11-130]
Section 21A(2)(h) — offences motivated by hatred and/or prejudice against a group of people
[11-140]
Section 21A(2)(i) — the offence was committed without regard for public safety
[11-145]
Section 21A(2)(ib) — the offence involved grave risk of death
[11-150]
Section 21A(2)(j) — the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence
[11-160]
Section 21A(2)(k) — abuse of a position of trust or authority
[11-170]
Section 21A(2)(l) — the victim was vulnerable
[11-180]
Section 21A(2)(m) — the offence involved multiple victims or a series of criminal acts
[11-190]
Section 21A(2)(n) — the offence was part of a planned or organised criminal activity
[11-192]
Section 21A(2)(o) — the offence was committed for financial gain
[11-195]
Section 21A(2)(p) — child under 16 years in offender’s vehicle
[11-200]
General observations about s 21A(3)
[11-210]
Section 21A(3)(a) — the injury, emotional harm, loss or damage caused by the offence was not substantial
[11-220]
Section 21A(3)(b) — the offence was not part of a planned or organised criminal activity
[11-230]
Section 21A(3)(c) — the offender was provoked by the victim
[11-240]
Section 21A(3)(d) — the offender was acting under duress
[11-250]
Section 21A(3)(e) — the offender does not have any record (or any significant record) of previous convictions
[11-260]
Section 21A(3)(f) — the offender was a person of good character
[11-270]
Section 21A(3)(g) — the offender is unlikely to re-offend
[11-280]
Section 21A(3)(h) — the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise
[11-290]
Section 21A(3)(i) — remorse shown by the offender
[11-300]
Section 21A(3)(j) — the offender was not fully aware of the consequences of their actions because of their age or any disability
[11-310]
Section 21A(3)(k) — a plea of guilty by the offender
[11-320]
Section 21A(3)(l) — the degree of pre-trial disclosure by the defence
[11-330]
Section 21A(3)(m) — assistance by the offender to law enforcement authorities
[11-335]
Section 21A(5AA) — special rule for intoxication
[11-337]
Section 21B — sentencing patterns and practices
[11-340]
Section 24A — mandatory requirements for supervision of sex offenders and prohibitions against child-related employment to be disregarded in sentencing
[11-350]
Section 24B — confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
[11-355]
Section 24C — disqualification of parliamentary pension
Guilty pleas
[11-500]
Introduction
[11-503]
Impermissible to penalise offender for pleading not guilty
[11-504]
Obligations of the court taking the plea
[11-505]
Setting aside a guilty plea
[11-510]
Summary of the two guilty plea discount schemes
[11-515]
Guilty plea discounts for offences dealt with on indictment
[11-520]
Guilty plea discounts for offences dealt with summarily and exceptions to Pt 3 Div 1A
[11-525]
Whether guilty plea discount given for Form 1 offences
[11-530]
Combining the plea with other factors
Power to reduce penalties for pre-trial disclosure
[11-910]
Section 22A
Power to reduce penalties for assistance to authorities
[12-200]
Statutory provision
[12-205]
Rationale
[12-210]
Procedure
[12-215]
Broad scope of s 23(1)
[12-218]
Voluntary disclosure of unknown guilt — the Ellis principle
[12-220]
“Unreasonably disproportionate” penalty — s 23(3)
[12-225]
Requirement to indicate reduction for assistance — s 23(4)
[12-230]
Applying the discount
[12-240]
Promised assistance
Court to take other matters into account (including pre-sentence custody)
[12-500]
Counting pre-sentence custody
[12-510]
What time should be counted?
[12-520]
Intervention programs
[12-530]
Quasi-custody bail conditions — residential programs
Victims and victim impact statements
[12-790]
Introduction
[12-800]
Common law
[12-810]
Sections 3A(g), 21A and the common law
[12-820]
The statutory scheme for victim impact statements
[12-825]
The statutory scheme does not cover the field
[12-830]
Evidentiary status and use of victim impact statements at sentence
[12-832]
Victim impact statements and harm caused by sexual assault
[12-836]
Victim impact statements and De Simoni
[12-838]
Victim impact statements of family victims
[12-839]
Victim impact statements when offenders are forensic patients
[12-840]
Robbery offences
[12-850]
The relevance of the attitude of the victim — vengeance or forgiveness
[12-860]
Statutory scheme for directions to pay compensation
[12-863]
Directions to pay compensation — further considerations
[12-865]
A direction to pay compensation not a mitigating factor
[12-867]
Victims support levies
[12-869]
Corporation as victim
[12-870]
Federal offences
Taking further offences into account (Form 1 offences)
[13-100]
Introduction
[13-200]
The statutory requirements
[13-210]
Guideline judgment for Form 1 sentencing
[13-212]
Should the “utilitarian” benefits of admitting guilt be taken into account?
[13-215]
Should the effect of Form 1 matters be quantified?
[13-217]
Deterrence and retribution
[13-240]
Serious, numerous and unrelated offences on a Form 1
[13-250]
Obligation on the Crown to strike a balance
[13-260]
The statutory power to reject a Form 1 under s 33(2)(b)
[13-270]
Effects of the Form 1 procedure
[13-275]
Charge negotiations: prosecutor to consult with victim and police
Sentencing guidelines
[13-600]
Introduction
[13-610]
The statutory scheme
[13-620]
Guideline judgments promulgated
[13-630]
Use of guideline judgments as a “check” or “sounding board”
[13-640]
Sentencing guidelines and standard non-parole period offences
Correction and adjustment of sentences
[13-900]
Correcting a sentence via an implied power or the slip rule
[13-910]
Re-opening proceedings under s 43
[13-920]
The limits of the power under s 43