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The Sentencing Process Explained

This information sheet will explain the purpose of sentencing once the court determines someone has committed a crime, how the process works and the meaning of mitigating and aggravating factors.

The purpose of sentencing is:

  • to ensure the offender is adequately punished for the offence
  • to prevent crime, by deterring the offender and others from committing similar  offences
  • to protect the community from the offender
  • to promote the rehabilitation of the offender
  • to make the offender accountable for their actions
  • to denounce, or publicly condemn, the offender’s conduct
  • to recognise the harm done to the victim of the crime and the community.

When a magistrate or judge decides a sentence, there are many factors they must take into account and these are specified in section 3A of the Crimes (Sentencing and Procedure) Act. One factor is proportionality, in other words that “the time fits the crime”. Where a number of sentences are being imposed, the court will determine whether they should be served together or one after the other—to reflect the totality of the crimes.

How the process works

The court begins by questioning whether the seriousness of the offence requires a custodial sentence. If the answer is yes, the court has to determine:

  • that only a sentence of imprisonment is appropriate, in other words prison is the last or only sentencing option
  • the length of imprisonment—without regards to how it will be served
  • are there any alternatives to a full-time custodial sentence? For example, if the sentence is less than 18 months, an alternative could be home detention. Or if the sentence is less than two years, alternatives might be a suspended sentence or an Intensive Corrections Order.

Note that a Local Court cannot impose a sentence of more than two years.

What are aggravating and mitigating factors?

Under section 21A of the Crimes (Sentencing and Procedure) Act, the court must consider any factors that may lessen a person’s culpability, or blameworthiness.

Aggravating factors are things that made the crime even more serious. This can include:

  • the use of weapons
  • the crime being committed in the companyof others
  • the victim being a police officeror emergency services worker etc
  • the actual or threatened violencethat was used
  • any previous convictionsthe offender has
  • gratuitous cruelty, in other words the actions had no reason or justification
  • the offence was committed without regard for public safety
  • the victim’s vulnerability, for example whether they were very young, disabled or elderly
  • many other elements the court will consider to have raised the level of criminality.

Mitigating factors are circumstances that might explain or lessen the severity of an offence. This could be:

  • the damage or injuryto the victim being minimal
  • the crime was unplanned
  • the offender was acting under duress
  • it is a first offence
  • the offender is unlikely to reoffend and/or has good prospects of rehabilitation
  • other justifying circumstances like reparationbeing undertaken and any assistance the offender gave to police.

A good lawyer will take all these factors into account when they prepare a plea, to achieve the best outcome possible for their client.

Call our Criminal Law team for the best results on 02 4929 3995 or email us at info@catherinehenrylawyers.com.au

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.

Contact our Criminal Law team


Types of Sentences

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