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Sentencing

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

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Sentencing

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  1. Sentencing Week 12 - The Sentencing Process

  2. 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

  3. Part B. The sentencing process • Appeals against sentence • Governing principles • Other principles

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

  5. 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

  6. Appeal to High Court • Special leave to appeal required • What must be shown? • Lowe v The Queen 1984 HC

  7. Penalties and Sentences Act 1992 • Definitions s 4 • “Sentence” - wide definition • Brown • Corrigan • Briese

  8. 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”.

  9. 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

  10. 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

  11. 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

  12. 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?

  13. 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

  14. 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)

  15. 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.

  16. 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

  17. 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)

  18. 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

  19. 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.

  20. 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

  21. 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)

  22. 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

  23. 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

  24. 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?

  25. 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)

  26. 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

  27. 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)

  28. 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

  29. 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?

  30. 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

  31. 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

  32. 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

  33. 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

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