Sentencing and Punishment Guidelines

• Sentencing and punishment involves statutory and judicial guidelines
• Crimes (Sentencing Procedure Act 1999 (NSW) (CSPA) is part of sentencing and punishment legislation.

Statutory Guidelines

• These are Acts of Parliament that judges must follow.
• CSPA empowers the Court of Criminal Appeal to issue guideline judgments in NSW.
• They establish general guidelines for courts in sentencing offenders.

Judicial Guidelines

• Originate from judgments made by judges from the NSW Court of Criminal Appeal.
• Aims to achieve consistency in the sentencing process, ensuring predictability and equal treatment across cases.

Mandatory Sentences

• Mandatory sentences or prison terms remove judicial discretion.
• Examples
  • s.19B of the Crimes Act 1900 (NSW) mandates a life sentence for the murder of a police officer.

Mandatory Minimum Penalties

• Acts as a penalty floor, preventing courts from sentencing below the minimum.
• Examples
  • s.25B of Crimes Act 1900 (NSW) sets an 8-year minimum for assault causing death while intoxicated without mitigating factors or judicial discretion.

Maximum Penalties

• Outlines the upper sentencing limit.
• Examples
  • s.19A of the Crimes Act 1900 (NSW) sets life imprisonment as the maximum penalty for murder.
  • s.24 sets a 25-year maximum penalty for manslaughter.

Arguments for Sentencing Laws

• Ensure sentences reflect community standards and are not unduly lenient, maintaining public confidence in the justice system.
• Elected officials are more attuned to community concerns than appointed judges.
• Help reduce crime by deterring potential offenders and incapacitating repeat offenders, thus lowering crime-related costs.
• Can be drafted precisely to avoid excessively harsh sentences and allow judges to depart from fixed penalties in "exceptional circumstances".

Arguments against Sentencing Laws

• Removing judicial discretion can lead to injustice, causing excessively harsh sentences in some cases.
• Increased penalties do not effectively deter crime, as many offenders act impulsively or under the influence.
• Laws aiming to incapacitate offenders may unfairly target individuals who would not have reoffended.
• Impose substantial costs on the justice system, potentially leading to fewer guilty pleas, more trials, and higher prison costs.
• There are less severe alternatives, such as guideline judgments and focusing on offender apprehension and addressing causes of offending behavior.

Specific Deterrence

• Prevents individuals from reoffending
• Aims to discourage someone from repeating actions.
• There is little evidence that specific deterrence is effective.

General Deterrence

• Punishment serves as an example to deter others from committing crimes.
• Little evidence supports its effectiveness; rehabilitation may be a better approach.
• The Law Reform Commission suggests deterrence not be included as a sentencing objective since it can lead to disproportionate sentencing.

Retribution

• The "eye for an eye" concept ensures proportionate punishment.
• Provides legal revenge for victims.
• Holds criminals responsible and acknowledges harm to victims/communities.

Rehabilitation

• Discourages future offenses by addressing root causes.
• Encourages offenders to eliminate factors contributing to crime.
• Younger offenders are more likely to reform with less severe sentences.
• Includes drug counseling, rehab programs, alcohol programs and anger management courses.

Incapacitation

• Limits an individual's ability to commit crimes by restricting liberties or freedom.
• The most extreme punishment involves imprisonment or home detention.
• Considers the likelihood of reoffending to ensure the sentence is not excessive.

Aggravating Circumstances

• Increase the severity of a crime.
• Involves violence, weapons or explosives.
• Offender has a previous record of convictions.
• Committed offences in company, in the presence of a child, in the home of the victim.
• Substantial injury, emotional harm, loss or damage.
• Motivation by hatred or prejudice.
• Offence abused trust, or the victim was vulnerable.
• Was planned or organized criminal activity.

Mitigating Circumstances

• Reduce the severity of a crime.
• Injury, emotional harm, loss or damage was not substantial.
• Offender was provoked by the victim or acting under duress.
• Does not have a prior record.
• Shows good prospects for rehabilitation.
• Was not fully aware of the consequences.

Special Cases

• Certain factors are not considered.
• Child sexual offences do not consider good character or lack of previous convictions.
• Self-induced intoxication is not a mitigating factor.

Role of the Victim in Sentencing Appeals

• A Victim Impact Statement (VIS) is a written statement submitted to the court before sentencing.
• It details the offense's impact on the victim.
• Courts will consider VIS', but the extent is not explicitly defined.

Purposes of a VIS

• Serves both instrumental and expressive functions.
• Gives a voice to victim in criminal proceedings.
• Provides offenders with insight into their actions' consequences.
• Can serve a therapeutic function for victims by having their harm acknowledged and validated.

Instrumental Function

• Informs the court of physical, emotional, or financial harm.
• Assists the court in determining appropriate punishment.

Expressive Function

• Gives victims a voice in criminal proceedings.
• Provides offenders with insight into their actions' consequences.
• Serve a therapeutic function acknowledging their harm

Primary Victim

• A person is directly harmed by a crime, such as someone attacked, witnessed violence, or threatened.

Family Victim

• A close family member of a deceased primary victim, like a spouse, child, parent, or sibling.

Arguments for the Use of VIS

• Research suggests VISs do not significantly affect sentencing outcomes, but may enhance proportionality.
• Provides a voice in proceedings and have harm acknowledged and validated offering therapeutic benefits.

Arguments against the Use of VIS

• Drafting/submitting a VIS can be distressing and re-traumatizing.
• Creates an expectation gap regarding penalties.
• Victim satisfaction can be reduced by unrealistic expectations, especially if sentencing impact is unclear.

Two Major Law Reforms in Relation to VIS

• Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)
• Courts can consider a "family victim's" VIS if supported by the prosecutor.
• This was not available before the 2014.
• Before 2014, there was no statutory guidance on how to consider a VIS.
• Prior case law precedents ruled that differential sentencing could be unjust if based solely on a family member's VIS.

Crimes Legislation Amendment (Victims) Act 2018 (NSW)

• Courts must receive, acknowledge and consider a VIS if a prosecutor presents it.
• The VIS must be tendered by the prosecutor to mitigate evidentiary concerns.
• Expanded the list of the deceased victim's immediate family for VIS submission.
• Included the inadmissibility of sentencing views by victims in CSPA 1999 (NSW).
• Victim can now comment on emotional suffering and distress.

Full Time Custodial Imprisonment

• Is a last resort, considered after all alternative options.
• The most punitive form of punishment.
• Achieves incapacitation and retribution, but not rehabilitation or deterrence.
• Involves a non-parole period outlined by statutory guidelines and a parole period before release.

Effectiveness of Imprisonment

• Achieves certain purposes of punishment.
• Incarceration severs ties to factors encouraging crime, assisting prisoner reform (in some cases)

Ineffectiveness of Imprisonment

• Inexpensive
• Offers no rehabilitation opportunities.
• little proof is reduces reoffending
• Offender may feel resentment
• More likely to commit greater crimes.

Home Detention

• Is an alternative to full-time imprisonment, offenders are confined to an approved residence for periods of the day.
• Maintains family, community, employment ties and access to community services.
• Offenders are subject to Home Detention Orders (HDO) and electronic monitoring.

Aims of Home Detention

• To divert less serious offenders from full-time imprisonment.
• To maintain a high level of control over offenders.
• To provide a cost-effective alternative to full-time imprisonment.
• To reduce the risk of reoffending through rehabilitation.
• This system is no longer available after September 2018.

Home Detention Conditions

• No penalty other than imprisonment was appropriate for the offender.
• Sentence must be less than or equal to 18 months.
• Appropriate to make a Home Detention Oder (HDO)
• The person living with the offender consented
• The offender has signed to abide by the conditions of the HDO

Home Detention Considerations

• The court should review an assessment report from NSW Community Corrections.
• Conditions relate to the offender's employment.
• May require community service if unemployed.

Crimes Excluded From Home Detention Eligibility

• Murder / manslaughter
• Sexual assault
• Armed robbery
• Any offence involving the use of a firearm
• Assault occasioning actual bodily harm
• Domestic / personal violence (S.13)
• Drug offences involving a commercial quantity

Home Detention Effectiveness

• Can maintain social relationships and community ties.
• Assists prisoners in overcoming offending habits and behaviours.
• Is more cost effective than full-time imprisonment.
• Access to education and employment promotes better behavior.
• 64% of offenders have not reoffended.
• 80% of Home Detention Ordes (HD) were completed.

Home Detention Ineffectiveness

• Shifts the burden of supporting offenders to the community without adequate resources.
• Offenders require support services such as counseling, job training, and substance abuse treatment that may not be available.
• Exposes families to the risk of harm if the offender is violent or a substance abuser.

Auditor-General Report, 2010

• 80% of Home Detention Ordes (HD) were completed (2008-2009).
• Only 36% of offenders who completed their Home Detention Oder (HDO) reoffended within 2 years (2005-2007).
• 42.6% recidivism in prison population.
• $187/day for custodial imprisonment vs $47/day HDO
• $4.4 million saved in 2008-9

Cons of Home Detention

• Not enough Community Corrections officers.
• Not enough Rehabilitation programs.
• 100 courts have not got access to Home Detention Ordes (HDO)
• 40% of offenders marked unsuitable.
• Inconsistent monitoring
• Failure to meet monitoring goals.
• Possibly places the community at risk due to limited supervision of those under Home Detention Ordes (HDO)

Drug Court Program

• Overview: The drug court is a compulsory drug treatment detention that is an alternative to full time imprisonment
• 1998 (NSW) Diversionary program
  • Aims to reduce drug dependency, promote reintegration and reduce the need for drug dependent persons to resort to crime to support their dependence
  • Offender must be likely to be sentenced, be willing to plead guilty, be dependent on drugs, be 18 or over and live in certain areas and be referred from certain courts
  • Offender must not be charged with violent conduct, sexual offence, suffering from a mental condition or be charged under Division 2 Part 2 of Drug Misuse and Trafficking Act 1985 (NSW)

Process for Drug Court

• Detoxification + assessment → the individual is placed in a drug free unit and undertake a health review
• Treatment plan → will individuals live in rehab or court approved residence?, will they be placed on abstinence?
• Entry of guilty plea → after assessment they will entry guilty plea, receive a sentence, sign an undertaking to abide by program conditions
• Start program → closely monitored by Drug court team
• Rewards → rewarded if they maintain a satisfactory level of compliance e.g. work, decrease in supervision, decrease in drug testing
• Sanctions → imposed if they act up e.g. increase in supervision or drug testing
• Awards → certificate of graduation or achievement
• Total costs of Drug Courts is 16.376 million per year

Local Court MERIT Program

• Started in 2000 as a 3 month drug treatment and rehab program before any plea is made
• Designed to allow defendants to focus on treating drug programs separate from their legal issues.
• Case is adjourned until treatment ends
• After completion, the magistrate will assess their progress and decide on a sentence

Early Referral into Treatment Program

• Be on bail / not need bail
• Not charged with any offence heard in the District court
• Not be suspected of drug use
• Have a treatable problem
• Live in an area that provides MERIT
• Consent to participation In 2017, 61% of defendants successfully completed the program

Human Trafficking and Slavery (TIP)

Forced Labour

• The International Labour Organization(ILO) estimates that approximately 28 million people worldwide are subjected to forced labor
• Victims often include domestic workers, factory laborers, miners, agricultural workers, and those in construction

Debt Bondage

• Where a person is forced to repay a loan with labour instead of money
• Often involves extreme interest rates, working for no money, unreasonable expenses added to debt

Sexual Slavery

• Many forms for example prostitution, single owner slavery, religious practices or other slavery where SA is common
• Victims are usually women and children

Australian legal measure

• Modern Slavery Act + Amendments
• Australia's Modern Slavery Act: what does it mean?', Monash University, (2018)
• Support for trafficked persons program delivered by the Australian red cross

International legal measure

• The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000 (TIP Protocol 2000/TIPP 2000) is the most important international treaty instrument on TIP that legally binds all 182 state parties that have ratified it.

International non-legal measure

• UNODC Global TIP Report (2024)
  • Provides data to identify trends, state action and areas for improvement
  • Without it, there would be little to no info → therefore valuable as the only source -Data is not from all state parties -2024 report got data from 152 states (30 missing)

Summary of notification

• Slavery = condition or status of being owned by another (Slavery Convention 1926)
• Trafficking in Persons (TIP) = act of recruiting, transporting, or harboring people for the purpose of exploitation
• Modern slavery = Division 270, Division 271, trafficking in persons or the worst forms of child labour##