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.
6.8 Each state and territory, and the Commonwealth, has legislation that guides the sentencing process. 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, and are outlined in the sentencing statutes of the majority of states and territories except South Australia (SA), Tasmania 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.
6.10 The purposes of sentencing can overlap, and even conflict. 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’.
6.11 Sentencing principles have also been developed by the common law, and incorporated into some sentencing statutes.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;
- parity: treat like cases alike and different cases differently;
- totality: the total sentence, where there are multiple terms, needs to be just and appropriate to the whole of offending; 
- imprisonment as a last resort; and
- parsimony:impose the least severe sentencing option that is open to achieve the purpose or purposes of punishment.
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. Aggravating factors in NSW include the ‘seriousness of the offence; the criminality of the offender; and the identity and vulnerability of the victim’. 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 be ‘aggravating’ or ‘mitigating’. 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.Other jurisdictions simply provide that the court must take into account any aggravating or mitigating factors.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper—Criminal Justice (2016) [12.1]. Sentencing courts also consider the maximum penalty for the offence as set by the legislature, and any submissions as to penalties for similar offending imposed by the court.
Crimes (Sentencing) Act 2005 (ACT); Crimes Act 1914 (Cth); Sentencing Act 1997 (NT); Crimes (Sentencing Procedure) Act 1999 (NSW); Penalties and Sentences Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA).
Veen v R (No 2) (1988) 164 CLR 465.
Criminal Law (Sentencing) Act 1988 (SA) s 10 described as ‘sentencing considerations’.
Sentencing Act 1997 (Tas) s 3 describes the purpose of the Act.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; Sentencing Act 1997 (NT) s 5; Penalties and Sentences Act 1992 (Qld) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 10; Sentencing Act 1997 (Tas) s 3; Sentencing Act 1991 (Vic) s 5; Veen v R (No 2) (1988) 164 CLR 465. The ACT and NSW sentencing statutes each include an additional two purposes of sentencing: ‘to make the offender accountable for his or her actions’; and ‘to recognise the harm done to the victim of the crime and the community’: Crimes (Sentencing) Act 2005 (ACT) ss 7(e), 7(g); Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(e), 3A(g).
Muldrock v The Queen (2011) 244 CLR 120 .
Veen v R (No 2) (1988) 164 CLR 465, .
See, eg, Sentencing Act 1997 (NT) s 5; Penalties and Sentencing Act 1992 (Qld) s 9; Sentencing Act 1995 (WA) s 6.
Veen v R (No 2) (1988) 164 CLR 465.
Green v The Queen (2011) 244 CLR 462, .
Mill v R (1988) 166 CLR 59.
See, eg, R v Way(2004) 60 NSWLR 168, ; R v Vasin (1985) 39 SASR 45, ; R v Zamagias  NSWCCA 17, –.
The principle of parsimony has been rejected by the courts in NSW: Blundell v R  NSWCCA 63, .
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper—Criminal Justice (2016) [12.5]; Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2).
Sentencing Act 1991 (Vic) s 5(2); also see Crimes (Sentencing) Act 2005 (ACT) ss 33–36.
Sentencing Act 1995 (WA) s 6(2); Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper—Criminal Justice (2016) [12.5].