SENTENCING IN AUSTRALIA
A defendant is sentenced after pleading guilty to an offence or after being found guilty of an offence by the court. Each state and territory has legislation that establishes principles and guidelines that must be followed by the courts in imposing an appropriate sentence. Generally, such legislation establishes the purposes for which sentences can be imposed, as well as the factors that must be taken into account by the judicial officer imposing the sentence and the types of sentences that can be imposed.
There are similarities in the laws and procedures of most states and territories, but sentence types and sentence ranges can vary.
The sentencing laws create boundaries within which a sentencing court must operate while still allowing the judicial officer discretion as to whether or not the maximum penalty for an offence is imposed.
Judicial officers across the court levels have different scope in the sentences they can impose. The Higher Courts generally process more serious cases and, consequently, longer sentences can be imposed. The Lower Courts process less serious offences and have maximum sentences they can impose.
In imposing a sentence on a person proven guilty of an offence, the judge or magistrate will consider:
- the purpose to be achieved by the sentence
- any mitigating factors (these can reduce the potential sentence)
- any aggravating factors (these can increase the potential sentence).
The main purposes that may be considered when imposing a sentence are:
- to ensure that the offender is adequately punished for the offence
- to promote the rehabilitation of the offender
- to deter the offender and others from committing similar offences
- to protect the community
- to recognise the harm done to the victim and the community.
As a general rule, the sentencing legislation across Australia requires that the sentence that is imposed should not be more severe than is necessary to achieve its purpose.