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‘Sentencing’ is when a judge decides on a punishment . Think of how hard it would be to be a judge and decide on a punishment for someone… How would you decide the punishments for these three armed robbery cases:. STATUTORY AND JUDICIAL GUIDELINES. The judge

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Sentencing is when a judge decides on a punishment

‘Sentencing’ is when a

judgedecides on a punishment.


Sentencing is when a judge decides on a punishment

Think of how hard it would be to be a judge and decide on a punishment for someone…

How would you decide the punishments for these three armed robbery cases:


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

The judge

can’t just pick ANY punishment.

There are GUIDELINES.

These guidelines come from

two different places:

1. Parliament(Statutory)

2. Previous cases(Judicial)


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

The really OLD way of choosing a sentence…

Judges used to hand down MASSIVE prison sentencesthat seemed tough (e.g. 25 years), but then the offender would only serve 4 or 5 years.

This caused public and mediaoutrage.


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

And THEN we had…

The NSW parliament passed the Sentencing Act 1989 (NSW)which required people sentenced with imprisonment to serve a minimumpercentage(75%) of their sentence without getting parole. This was called ‘truth in sentencing’.


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

And NOW we’ve got…

The Crimes (Sentencing Procedure) Act 1999 (NSW), which was amended in 2003to give us a very different, complicated system.

WHY???

NSW Attorney-General Bob Debus

2nd Reading Speech for the

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill 2003 (NSW)


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

And NOW we’ve got…

The Crimes (Sentencing Procedure) Act 1999 (NSW), which was amended in 2003 to give us a very different, complicated system.

MAXIMUM sentences for ALLcrimes

STANDARD Non-Parole Periods for SOMEcrimes

GUIDELINE judgements for SOMEcrimes

MANDATORY life sentences for murdering police

STATUTORY guidelines

STATUTORY guidelines

JUDICIALguidelines

STATUTORY guidelines


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

MAXIMUM sentences for ALL crimes

All crimes have a maximum punishment.

Most of the crimes and their maximum sentences are in the Crimes Act 1900 (NSW)

Armed Robbery maximum

= 25 years


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

But a judge isn’t just going to give the MAXIMUM sentence ALL the time!

Every case is going to be different.

Some will be more serious.

Some will be less serious.


Sentencing is when a judge decides on a punishment

FACTORS AFFECTING A SENTENCING DECISION

  • Aggravating circumstances

  • Mitigating circumstances

AGGRAVATING

FACTORS

MITIGATING

FACTORS

Looks at the actual CRIME/OFFENCE

Can make the punishment more severe

e.g. The offence involved violence, the victim was a police officer (or teacher…) who was doing their job, etc

Looks more at the OFFENDER

Can make the punishment less severe

e.g. The person is unlikely to re-offend, the person is of good character, the person has shown that he has taken responsibility for his actions, etc


Sentencing is when a judge decides on a punishment

FACTORS AFFECTING A SENTENCING DECISION

Discuss the issues involved with having aggravating and mitigating factors

  • Aggravating circumstances

  • Mitigating circumstances

DISCUSSfactors that affect sentencing decisions, including the purposes of punishmentand the role of the victim

  • The NSW Law Reform CommissionReport 138 – Sentencing looked into the problems with having a big list of aggravating and mitigating factors.

  • They found that s.22A (where the aggravating and mitigating factors are listed) was confusing a lot of judges.

  • There were:

  • Too many factors to consider; and

  • Most were completely irrelevant

FACTORS AFFECTING A SENTENCING DECISION

  • Aggravating circumstances

  • Mitigating circumstances


Sentencing is when a judge decides on a punishment

FACTORS AFFECTING A SENTENCING DECISION

Discuss the issues involved with having aggravating and mitigating factors

  • Aggravating circumstances

  • Mitigating circumstances

DISCUSSfactors that affect sentencing decisions, including the purposes of punishmentand the role of the victim

  • Also, some crimes (like sexual offences under the Crimes Amendment (Serious Sexual Offences) Act 2008) have NO POSSIBLE MITIGATING FACTORS- it doesn't matter if it's your first offence, or you’re usually a good person  you're getting the STANDARD NPP AS A MINIMUM!

FACTORS AFFECTING A SENTENCING DECISION

  • Aggravating circumstances

  • Mitigating circumstances


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

2. STANDARD Non-Parole Periods for SOME crimes

There are TWO SEPARATE LAWS that the judge has to follow.

The Crimes Act tells the judge the MAXIMUM punishment.

e.g. 25 years max for Armed Robbery

e.g. 7 years SNPP for Armed Robbery

The Crimes (Sentencing Procedure) Act tells the judge the ‘STANDARDNon-Parole Period’. This is what parliament says SHOULD be the “standard” minimum punishment.


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

2. STANDARD Non-Parole Periods for SOME crimes

From the

C(SP) Act

From the

Crimes Act

But this isn’t for every crime! Just SOME!!!

From the

C(SP) Act

From the

Crimes Act


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

2. STANDARD Non-Parole Periods for SOME crimes

But do judges HAVE TO give these ‘standard’ non-parole periods?

NO!

Judges always thought they had to START from the SNPP and then go up and down from there (based on the aggravating factors and mitigating factors).

But the High Court decided in 2011 that

the SNPP for a crime is just a ‘guidepost’ or ‘marker’

(Muldrock (2011)).

So, the SNPP for a crime just gives the judge SOME DIRECTION


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

2. STANDARD Non-Parole Periods for SOME crimes

35 crimes with SNPPs

(set by statute law)


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgements for SOME crimes

Not all judges think the same way.

They are humans, with their own ideas of what is important.

What’s the most important in choosing a partner? Sense of humour? Intelligence? Body?

Different people give different weight to different aspects.


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

To normal people, a judge’s REASONS for deciding to give someone 5 years in jail will look like this (x 20 pages)

But other judges see it like this:


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

So, for 3 Armed Robbery cases, 3 different judges will come up with 3 different decisions with 3 different personal “systems” deciding what is (and isn’t) important in working out a punishment.

Sentence: 5 years

Sentence: 3 years

Sentence: 8 years


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

But WE DON’T REALLY WANT THIS.

We want CONSISTENCYin our legal system (judges should be roughly thinking the same way; giving the same amount of weight to the same issues). We want the process to be PREDICTABLE.

Sentence: 5 years

Sentence: 3 years

Sentence: 8 years


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

The NSW Sentencing Councillooks at the way different sentencing decisions have been made by judges.

They focus on the REASONING of the judge in deciding on a specific sentence.

The decide for some cases, on ONE JUDGEMENT as being “the CORRECT way to work out the sentence in (this type of) case”


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

e.g. The NSW Sentencing Councilhas decided that the case R v Henry (1999) was an excellent example of how a judge SHOULD decide on the punishment for someone in an Armed Robbery case.

So NOW, every judge in an Armed Robbery case MUST follow what the judge did in R v Henry(or at least provide good reasons why he/she didn’t!).


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

3. GUIDELINE judgementsfor SOME crimes

So, R v Henry is now a

guideline judgement.

“best example” judgement

“should be followed” judgement


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

4. MANDATORY life sentences for murdering police

The NSW government passed the Crimes Amendment (Murder of Police Officers) Act 2011.

This means that if a person is found guilty (by a jury) of murdering a police officer, the judge has NO DISCRETIONin sentencing the defendant – the judge must hand down a mandatory LIFE SENTENCE.


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

4. MANDATORY life sentences for murdering police

Mandatory sentencing is popular, but it creates serious justice issues:

‘Is a policeman’s life worth more?’,SMH (2011)

Parliaments are not legally allowed to take over the role of the courts (e.g. by setting an exact sentence, rather than a range). Get-tough laws erode functions of justice, SMH,2011

And in Queensland, they brought in mandatory life sentences for repeated child sex offenders, which they deserve, but might give the paedophile an incentive to kill their victim (to prevent being caught and sent to prison for life).

Queensland child-sex law 'may lead to murder’, The Australian (2012)


Sentencing is when a judge decides on a punishment

So, our sentencing system is now:

STATUTORY AND JUDICIAL GUIDELINES

ALL crimes have a maximum punishment (set by statute law)

There are 35 crimes with SNPPs (set by statute law)

There are 22 possible aggravating factors

and 13 possible mitigating factors

that have to be looked at

There are 7 cases (from common law)

that are used as ‘guideline’ judgements

There is 1 crime with a mandatory sentence (set by statute law)

(life imprisonment for murdering a police officer)


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

“You’re almost inviting judges to run the court like a checklist, ‘Oh, he’s got one, two, three, four aggravating factors there – he’s only got three mitigating ones’”

Justice Conlon

‘Putting the Truth into Sentencing’, SMH, 2010

SEEM

STUPID

TOYOU?

Judges agree!

“The gradual increase in ‘law and order’ measures have forced judges to impose higher sentences for some crimes”

‘Putting the Truth into Sentencing’, SMH, 2010

The legislation setting standard non-parole periods should be overturned

Justice Reg Blanch

‘Putting the Truth into Sentencing’, SMH, 2010


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

The IMPACT of the SNPP sentencing scheme

on sentencing patterns in NSW

Judicial Commission of NSW, 2010

What effecthas this new sentencing system (since 2003) had on sentencing in NSW?

Did it REALLY make sentencing more consistent?

Or did it just INCREASE penalties?

IT DID BOTH!


Sentencing is when a judge decides on a punishment

STATUTORY AND JUDICIAL GUIDELINES

4. SENTENCING AND PUNISHMENT

EVALUATEthe effectiveness of sentencing and punishment as a means of achieving justice

Is the system of having SNPPs and guideline judgements for certain crimes (an increasing number of crimes – increasing each time a terrible individual crime happens and is on the news) the best way to achieve justice?

You should have a very good answer for this, because it is a good tip for the exam.

STATUTORY AND JUDICIAL GUIDELINES

?

NSW Law Reform CommissionReport 138 – Sentencinghadn’t come out by the time this was released, so check the Facebook page to see what the final conclusions were about the effectiveness of the system of sentencing…


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