Table of Contents

Principles of Sentencing In NSW

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The criminal justice system is designed to maintain social order, protect individuals, and deter criminal behaviour. One of the crucial aspects of the justice system is sentencing, where judges and magistrates determine appropriate punishment for convicted offenders. In New South Wales, sentencing is guided by a set of principles that ensure fairness, proportionality, and consistency in the administration of justice. There are various sentencing factors a court may take into account.


Purposes of Sentencing


The sentence act under section 3A outlines the seven objectives “for which a court can impose a sentence on an offender”:


(a) Ensuring that the offender receives appropriate punishment for the offence.

(b) Preventing crime by deterring both the offender and others from committing similar offences.

(c) Protecting the community from the actions of the offender.

(d) Promoting the rehabilitation of the offender.

(e) Holding the offender accountable for their actions.

(f) Denouncing the offender’s conduct.

(g) Recognising the harm caused to the victim and the community by the crime.

The Principle of Punishment and Deterrence

One of the primary objectives of sentencing in NSW is the principle of punishment and deterrence. This principle seeks to impose penalties on offenders as a responce to their criminal conduct. The punishment serves both retributive and utilitarian purposes: retribution aims to balance the scales of justice by inflicting harm on the offender proportionate to their wrongdoing, while utilitarian aspects focus on deterring both the convicted individual and others in society from committing similar offences. By imposing appropriate punishments, the court aims to discourage criminal behaviour and maintain public safety.


Deterrence continues to be a pervasive aspect of sentencing law, as demonstrated by the case of Weribone v R [2018] NSWCCA 172: [14], [54], which firmly rejected any argument suggesting that the use of the word ‘may’ in s 3A would eliminate long-established sentencing principles related to specific and general deterrence.


Section 3A(b) acknowledges the common law concept of specific and general deterrence, wherein the theory posits that harsher punishments lead to a stronger deterrent effect. However, the efficacy of general deterrence has been subject to scrutiny.


Specific deterrence or personal deterrence comes into play when an offender possesses a previous criminal record that demonstrates an ongoing disposition of defiance, warranting greater consideration for retribution, personal deterrence, or community protection, as stated in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.


The Principle of Rehabilitation


Another essential principle of sentencing in NSW is rehabilitation. This principle emphasises the possibility of reform and the potential for offenders to reintegrate into society as law-abiding citizens. The court recognises that some individuals may be driven to criminal behaviour due to various factors, such as social and economic circumstances, personal circumstances and mental health issues. Therefore, rather than merely punishing offenders, the justice system aims to provide rehabilitation programs that address the root causes of criminal behaviour, fostering a positive change in the offender’s life.


The notion of rehabilitation encompasses not only preventing an offender from re-offending by addressing underlying issues related to the risk of recidivism, as stated in R v Pogson (2012) 82 NSWLR 60. Nevertheless, it is essential to understand that rehabilitation as a concept extends beyond the sole aim of avoiding re-offending.


Rehabilitation has been regarded as a fundamental aspect of sentencing discretion, as emphasized in R v Cimone [2001] NSWCCA 98. Strong evidence of rehabilitation is demonstrated when an offender voluntarily ceases their criminal activities.

The principle of protection focuses on safeguarding the community from potential harm posed by offenders. The court must consider the protection of the public as a paramount concern when determining the appropriate sentence. This principle applies to cases involving violent offenders, repeat offenders, or those who may pose a significant risk to society. In such instances, the court may impose longer sentences or alternative measures to ensure public safety and prevent future offences, injury loss or damage to the community.


The enactment of s 3A(c) was not intended by Parliament to introduce a system of preventive detention that would run counter to the principles established by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. Under common law, it was acknowledged that the diverse objectives of punishment were considered to serve the primary purpose of safeguarding the community from crime, as evident in the case of R v Goodrich (1952) 70 WN (NSW) 42.


In the case of Veen v The Queen (No 2), the court established that while safeguarding the community is a relevant factor in sentencing offenders, the sentence should not be escalated beyond proportionality to the crime solely to shield the community from the potential risk of future offending by the same offender.


An offender’s previous criminal record holds significant weight when considering retribution, personal deterrence, and community protection. While new penalties may not be imposed for past offences, it is entirely valid to take into account the offender’s prior criminal history when it indicates a dangerous propensity, as established in Veen v The Queen (No 2).


The Principle of Restitution and Reparation


The concept of restitution and reparation is an integral part of the sentencing process in NSW. It seeks to compensate victims for the harm they have suffered as a result of the offense. Sentencing orders may include the requirement for offenders to pay fines or restitution to victims, undertake community service, or participate in restorative justice programs. This principle promotes accountability and offers victims a sense of closure and justice.


In cases involving individuals directly engaged in the administration of justice, such as police officers, the purpose of denunciation holds greater significance than in ordinary situations, as noted in R v Nguyen [2004] NSWCCA 332. Denunciation aims to condemn the offender for their actions. Under common law, courts are obliged to consider the impact of criminal behaviour on victims when determining the culpability of the offender, as evident in Siganto v The Queen (1998) 194 CLR 656.


It is essential not only for the community to be assured that the offender receives appropriate punishment but also for the victim or those affected to feel a sense of justice served, as emphasised in Ryan v The Queen (2001) 206 CLR 267.

The Principle of Proportionality

The principle of proportionality serves as a safeguard against the imposition of excessively lenient or excessively harsh sentences. This principle dictates that a sentence should align with the seriousness of the crime, considering the objective circumstances, so that it neither exceeds nor falls short of the appropriate measure, as demonstrated in the case of R v McNaughton (2006) 66 NSWLR 566 at [15].


The principle of proportionality underscores the importance of aligning the severity of the sentence with the gravity of the offence committed. Sentences should be proportionate to the harm caused and the culpability of the offender. This principle ensures that similar offences receive consistent and equitable punishment, promoting confidence in the justice system.


The Principle of Consistency


Consistency in sentencing is essential to maintain public trust in the justice system. The principle of consistency emphasises that similar cases should receive similar sentences, regardless of the jurisdiction or the judge/magistrate presiding over the matter. Sentencing guidelines and precedents are used to guide judges in their decision-making, promoting uniformity and predictability in sentencing outcomes.

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The Principle of Mitigation and Aggravation

When determining a sentence, the court considers any aggravating or mitigating factors related to the offense or the offender. Mitigating factors may include the offender’s remorse, cooperation with authorities, and a lack of prior criminal history. On the other hand, aggravating factors may involve the use of violence, premeditation, or previous criminal convictions. These factors influence the severity of the sentence imposed by the court.


The Principle of Mercy


The principle of mercy allows the court to exercise discretion in sentencing, considering exceptional circumstances or cases where the strict application of the law may lead to unjust outcomes. Mercy can take the form of a reduced sentence, probation, or diversion programs for certain offenders who display genuine remorse and commitment to rehabilitation.


The principles of sentencing in NSW form the bedrock of the criminal justice system, ensuring that offenders are held accountable for their actions while offering opportunities for rehabilitation and reintegration into society. The court must take into account the sentencing factors and principles. Striking a delicate balance between punishment, deterrence, rehabilitation, and protection, these principles shape the outcomes of sentencing and uphold the rule of law.


By following these guiding principles, the NSW justice system endeavours to maintain fairness, consistency, and public confidence, while promoting a safer and more just society for all.


If you have pleaded guilty to a criminal offence in NSW, including serious sexual offences, contact our Parramatta criminal lawyers. At Lyons Law Group, we can provide free legal advice NSW 24 hours, 7 days a week.

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