Considerations to be taken into account when sentencing

6.7        Sentencing or a sentencing hearing follows a conviction, regardless of whether an offender entered a plea of guilty or was found guilty at trial. Sentencing in serious or complex matters is undertaken by judges and magistrates who apply the principles and purposes of sentencing to the characteristics of the offence and the subjective characteristics of the offender to come to a sentencing decision.[5]

6.8        Each state and territory, and the Commonwealth, has legislation that guides the sentencing process.[6] The relevant sentencing statutes often provide the principles and purposes of sentencing, as well as listing the factors that the court may take into account when considering the subjective characteristics of the offender.

Purposes and principles of sentencing

6.9        The purposes of sentencing are well established in common law,[7] and are outlined in the sentencing statutes of the majority of states and territories except South Australia (SA),[8] Tasmania[9] and Western Australia (WA). Generally, the purposes of sentencing are:

  • punishment: to punish the offender for the offence in a way that is just and appropriate in all the circumstances;
  • deterrence: to deter the offender (specific deterrence) or other people (general deterrence) from committing the same or similar offences;
  • protection: to protect the community from the offender;
  • rehabilitation: to promote the rehabilitation of the offender; and
  • denunciation: to denounce the conduct of the offender.[10]

6.10     The purposes of sentencing can overlap, and even conflict.[11] For example, protection of the community may not align with the rehabilitation of the offender. As noted by the High Court of Australia, the purposes of sentencing cannot be ‘considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence, but sometimes they point in different directions’.[12]

6.11     Sentencing principles have also been developed by the common law, and incorporated into some sentencing statutes.[13]The main principles related to sentencing and the sentencing decision are:

  • proportionality: the sentence needs to be appropriate or proportionate to the gravity of the crime;[14]
  • parity: treat like cases alike and different cases differently;[15]
  • totality: the total sentence, where there are multiple terms, needs to be just and appropriate to the whole of offending; [16]
  • imprisonment as a last resort;[17] and
  • parsimony:impose the least severe sentencing option that is open to achieve the purpose or purposes of punishment.[18]

Sentencing factors in Australia

6.12     Some sentencing statutes provide the factors that sentencing courts can take into account in sentencing an offender. These vary in form. For example, New South Wales (NSW) legislation provides a non-exhaustive list of the mitigating and aggravating factors that the sentencing court is to take into account.[19] Aggravating factors in NSW include the ‘seriousness of the offence; the criminality of the offender; and the identity and vulnerability of the victim’.[20] If the offender was a person of good character; was acting under duress; did not plan the offence; or had shown remorse, the severity of the sentence may be mitigated.

6.13     Some states and territories list a number of factors that a court must have regard to in sentencing, which are not expressed to beaggravating’ ormitigating’. For example, in Victoria the sentencing court must have regard to, among other things, the nature and gravity of the offence; the offender’s culpability and previous character; the impact of the offence on any victim; and any injury loss or damage resulting directly from the offence.[21]Other jurisdictions simply provide that the court must take into account any aggravating or mitigating factors.[22]