Sentencing

Week 12 - The Sentencing Process

Last lecture... Introduction to sentencing Theories of punishment History of criminological thought Justifications for punishment Philosophical basis for sentencing in Qld - s

9(1) PSA

Part B. The sentencing process

Appeals against sentence Governing principles Other principles

Appeal against sentence by offender s 668D Buckmaster Skinner Griffiths S 668E (3) - Corndale

Appeal by Attorney-General s 669A *Melano [1995] 2 Qd R 186 - Is the

sentence outside the range of a proper sentencing discretion?

What matters can be raised?

– Yanner [1999] QCA 515

Appeal to High Court Special leave to appeal required What must be shown?

– Lowe v The Queen 1984 HC

Penalties and Sentences Act 1992 Definitions s 4

– “Sentence” - wide definition

– Brown

– Corrigan

– Briese

Sentencing factors: s 9(2) Sentencing a discretionary process -

balancing the different factors against one another

The list in s 9(2) is NOT EXHAUSTIVE: see s 9(2)(p): court may take into account “any other relevant circumstance”.

Sections 9(3) and (4)

Added by Serious Violent Offences amendments (7/97) - (see also Part 9A), but operates INDEPENDENTLY from Part 9A.

Applies where offence involves violence or results in physical harm (s 9(3)).

Means that s 9(2)(a) does NOT apply Court must have regards PRIMARILY to factors in s 9(4) -

emphasises protection of the community, circumstances of the offence and effect on the victim

s 9(2) ALSO applies

Factors: imprisonment as a last resort s 9(2)(a) - imprisonment as last resort;

sentence to stay in community is preferable

– Condoleon

Imprisonment? Youthful offenders - Lovell

Maximum penalties (b) - the maximum and any minimum

penalty prescribed for the offence

– Veen no 2 (HC) 1988 - for which cases are the maximum penalties reserved?

– Applied in Qld in Chivers

Nature and seriousness of offence and harm done (c) - The nature and seriousness of the offence

including any physical or emotional harm done to the victim – H (1993) 66 A Crim R 505 - charged with

assault occ BH (339) and indecent assault (337) See also ss 9(4)(a), (b), (c), (d), (e), (f) and (k)

– NB: only where applicable– How do these subsections apply to make a

difference?

Section 9(2) cont

(d) - extent to which offender is to blame for offence - eg co-offenders - may also include moral culpability

(e) - damage injury or loss - eg amount of money taken in bank robbery

Personal characteristics (f) - the offender’s character, age and

intellectual capacity

– Character: see s 11 (post)

– See also s 9(4)(g) and (h)

– Age: youth as mitigating factor: Hammond, and Lovell

– Intellectual capacity: see Dunn (study guide)

Character: s 11 Includes previous convictions; significant

community contributions; other relevant matters Previous convictions - particularly relevance and

date Veen (no 2) Discretion in s 11(c) does not permit the court to

take into account other alleged offences not the subject of convictions: Burrows.

Personal circumstances (g) the presence of any aggravating or

mitigating factor concerning the offender - can cover many factors: eg:

Family responsibilities: R v Le should this be mitigatory?

Ill health: R v Smith

Prevalence

(h) prevalence of the offence– What does prevalence mean?– How is it assessed?– What is the relevance of prevalence to

sentencing?– How should the court be informed of prevalence?– link to s 9(1)(c) - special and general deterrence– eg, H (see above)

Assistance to law enforcement agencies (i) assistance to law enforcement agencies (this

offence or others)– Batchelor (SG), Postiglione - (1997) 189 CLR 295

– What is the relevance of this to sentence?– How should such assistance be taken into account?– What are the ramifications of this for the offender?– What procedures should be followed when giving

an undertaking? See s 13A

Intoxication and drug addiction What is the relevance of intoxication to

sentence? Is intoxication of the offender at the time of

the offence a mitigating factor? What effect does drug addiction have on

sentence? See Rosenberger and Hammond.

Disparity between co-offenders

What does disparity mean? Why is this important? What is the principle for sentencing co-

offenders? See Lowe v The Queen 1984 HC

The totality principle

What is the totality principle? How does it apply? Does it only apply to Qld offences? See Mill 1988 High Ct

– applied in Coss

– approved of in Postiglione (High Court)

Delay

What relevance does delay have to sentence? What principles should be applied where there is a

substantial delay between the commission of the offence and sentence?

Should the offender get the benefit of circumstances which have occurred in the mean-time? (eg, rehabilitation etc)

See Law 1996 Qld

Sentencing submissions video Use to see sentencing procedure and what

happens on sentence Hearing takes place in the District Court Note: Defence counsel refers to s 9(3)(b)

which has now been replaced with something totally different: ignore this reference

Section 10 Why is giving reasons for sentence

important? When does this section apply? How does it apply? What will happen where the court does not

give reasons?

Recording a conviction - s 12

S 12(1) discretionary (with exceptions) s 12(2) factors Brown: s 12(2) not exhaustive -balance - not

restricted to young offenders S 12(3)(a) conviction without recording conviction

not a conviction for any purpose s 12(3)(b) not entered in any records, except

records of the court, and offender’s criminal history for purposes of s 4(b)

Cases on s 12

Eg, Graydon v Dickson - university student - possession of cannabis (SG) - minor offence

What principles are to be applied?

– R v Brown 1994

– R v Briese 1997

Section 13 - Plea of guilty What is the relevance of a plea of guilty to sentence? How is a plea of guilty taken into account?

– R v Corrigan

What factors are relevant? Must a court make a reduction in the sentence to take into

account a plea of guilty? Is there a penalty for pleading NOT GUILTY?

– See Siganto 1998 High Court

What is the relevance of remorse?– See s 9(4)(i)

Plea of guilty (cont) What qualifies as a reduction?

– wide interpretation, includes recommendation for early release on parole, suspending the sentence, imposing a fine etc - Corrigan

– How does this work in practice?– video re-enactment– R v Corrigan [1994] 2 Qd R 415

Information on sentence - s 15 Section 15: court may receive “any information”; eg

references, reports Psychiatrist and psychologist’s reports

– What role do they play? Pre sentence reports:

– Can these refer to other offences/allegations?

Comparative sentences – What are comparative sentences?

– How are they taken into account?

Information on sentence (cont) Victim Impact Statements

– Optional on sentence

– See Criminal Offence Victims Act 1995

– S 9(2)(c) PSA

– Statement by victim, family, friend etc

– Read orally or tendered

– Victims can participate in process

– Problem - damaging or inadmissible information

– DPP guidelines

Disputed facts Disputed facts: Morrison (unreported, Qld Court

of Appeal 26 June 1998) - where disputed and fact is adverse to offender: beyond reasonable doubt. Where disputed and favourable to offender: balance of probabilities

NB: SEE EVIDENCE AMENDMENT BILL 2000 (12 APRIL 2000), PROPOSES TO OVERTURN MORRISON

Judge must only sentence on facts before him/her Boney 1986 CA: Judge cannot take into

account circumstances of aggravation which would have warranted a conviction for a more serious offence: applying De Simoni (HC)

Confirmed in R v D [1996] 1 Qd R 363

Other offences taken into account: s 189 See s 189 (eg, video) Court may take into account other offences

if offender is: represented, pleads guilty; and requests that they may be taken into account

Prosecution must also consent