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) -
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(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 meantime? (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
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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