Courts and Tribunals Tasmania

General Sentencing Principles

Sentencing law and purposes

Sentencing Law & Purposes

Sentencing Law - Sources

  • Sentencing Act 1997 (TAS)
  • Youth Justice Act 1997 (TAS)
  • Crimes Act 1914 (Cwth)
  • Common law (case law; previous judgments of Courts)
  • Acts creating particular offences and crimes (eg. drink-driving penalties)

Purposes of Sentencing

  • punishment and retribution
  • rehabilitation of offenders
  • deterrence of offenders and other persons from committing offences (individual deterrence; and general deterrence)
  • denunciation of the conduct of offenders
  • incapacitation

The purposes of the Sentencing Act 1997 are set out in section 3 of the Act as follows:

  1. promote the protection of the community as a primary consideration in sentencing offenders; and
  2. promote consistency in the sentencing of offenders; and
  3. establish fair procedures for ­
    (i) imposing sentences on offenders generally; and
    (ii) imposing sentences on offenders in special cases; and
    (iii) dealing with offenders who breach the conditions of sentences; and
  4. help prevent crime and promote respect for the law by allowing courts to ­
    (i) impose sentences aimed at deterring offenders and other persons from committing offences; and
    (ii) impose sentences aimed at the rehabilitation of offenders; and
    (iii) impose sentences that denounce the conduct of offenders; and
  5. promote public understanding of sentencing practices and procedures; and …
  6. ...
  7. recognise the interests of victims of offences.

Sentencing principles

General Sentencing Principles

  • ensure that the punishment fits the crime
  • discretion by Magistrate/Judge within a range of possible sentences
  • maximum penalties
  • mandatory minimum penalties
  • aggravating and mitigating factors
  • conviction or non-conviction
  • proportionality of sentence to offence committed
  • totality of sentences on multiple charges for single defendant
  • comparable ("parity of") sentences for co-offenders
  • changing ("commuting") sentences eg. fines changed to Community Service Orders [$100 = 7hours] or imprisonment

Factors Considered

Factors considered

Circumstances of the Offence

  • Seriousness of the offence
  • Prevalence of the type of offence
  • Impact on victim – taking into account age/circumstances of victim
  • Premeditation
  • Degree of participation – leader, minor role?
  • Aggravating or mitigating factors

Circumstances of the Offender

  • Prior Convictions, including response to previous orders
  • Plea of guilty
  • Remorse, demonstrated for example by:
  • Co-operation with the Police
  • Character
  • Background, including cultural background
  • Age
  • Means
  • Physical condition/ mental capacity
  • Prospects for rehabilitation
  • Deterrent effect that any sentence may have on the person
  • Alcohol/drugs but only to show out of normal character
  • Parity with like offenders
  • Special hardship

Range of Sentencing Orders

Range of Sentencing orders

  • Imprisonment
  • Suspended term of imprisonment (partially or wholly)
  • Community Service Order
  • Probation Order
  • Fine, Compensation Order, or Restitution Order
  • Adjournment with Undertakings (with or without a conviction)
  • Record a conviction and discharge the offender
  • Dismiss the charge without conviction

The range of sentencing orders set out by the Sentencing Act 1997 are found in section 7 of the Act as follows:

7. A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –

  1. record a conviction and order that the offender serve a term of imprisonment; or
  2. record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or
  3. record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or
  4. with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or
  5. record a conviction and order the offender to pay a fine; or
  6. with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or
  7. record a conviction and order the discharge of the offender; or
  8. without recording a conviction, order the dismissal of the charge for the offence; or
  9. impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment.