The types and lengths of sentences vary depending on the nature of the offending, the personal circumstances of the offender, and sentencing patterns for similar cases. The Magistrates Court sentences offenders for less serious offences whereas the Supreme Court  sentences offenders for more serious criminal matters.

In the ACT, the legislation that governs sentencing is the Crimes (Sentencing) Act 2005 (Sentencing Act) and the Crimes (Sentence Administration) Act 2005 (Sentence Administration Act). Other legislation applies where the offence is against Commonwealth law.

When does sentencing occur?

In the Supreme Court, sentencing occurs in two stages. First, there is a sentence hearing where the Court receives evidence and hears from each party on what matters the Court should take into account and what sentencing options are appropriate. In cases where the offence involves a victim, the victim may choose to provide a victim impact statement.

Secondly, the judge hands down the sentence and gives reasons. This may occur on the same date or, for more complex matters, the judicial officer may elect to give reasons on a later date.

What are the purposes of sentencing?

In sentencing an offender, the Court must have regard to the purposes of sentencing stated in section 7 of the Sentencing Act. The purposes of sentencing are:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;,

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for their actions;

(f) to denounce the conduct of the offender; and

(g) to recognise the harm done to the victim and the community.

These purposes often point in different directions. For example, an offence may be so serious that a term of imprisonment may appear to be the just and appropriate punishment; but on the other hand, to promote rehabilitation of the offender, it may be appropriate to allow the offender to undertake residential drug and alcohol rehabilitation. It is the judicial officer’s role to determine what weight should be given to any competing sentencing purposes depending on the nature of the offence and the individual circumstances of the offender.

What matters can a judicial officer consider on sentence?

In addition to the purposes of sentencing, the judicial officer must also take into account “relevant considerations” listed in section 33 of the Sentencing Act. These include the nature and circumstances of the offence and aspects of the personal circumstances of the offender. These are described in more detail below.

Determining the appropriate sentence for an offence is not a mathematical exercise. The task of sentencing requires the judicial officer to identify all the relevant factors, consider their significance and then make a value judgment as to the appropriate sentence. Only at the end of the process can the judicial officer determine the sentence.

The seriousness of the offence

The Court must have regard to the seriousness of the offence in question. The judicial officer is often guided by the maximum penalty for an offence which indicates how seriously parliament and the community views that kind of offending. The maximum penalty is generally only imposed in the most serious example of that offending. For example, the maximum penalty for murder is imprisonment for life, but most people sentenced for murder in the ACT do not receive life imprisonment as the maximum sentence is generally reserved for the most serious category of murder, such as where a murder involves gratuitous cruelty.

Objective circumstances

This is information about the offence and how it was committed. This includes:

• The nature and circumstances of the offending;
• Whether the offence was planned or premeditated;
• The degree to which the offence was the result of provocation, duress or entrapment;
• Whether the offender was in a position of trust or authority when the offence was committed;
• Whether there were several offences forming a course of criminal conduct;
• Any injury, loss or damage caused by the offences;
• The harm to the victim or victims; and
• Whether the victim or victims were vulnerable persons.

Where an offender is sentenced after a hearing or trial, the judicial officer will make findings on these issues from the evidence that was brought before the Court in the hearing or trial.

Where an offender is sentenced following a plea of guilty, the prosecution and the offender may give the Court an “agreed” statement. If the prosecution and the offender cannot agree the Court make determinations on these issues after hearing evidence from relevant witnesses.

Subjective circumstances

This is information about the person who committed the offence. This includes:

• Any remorse shown or action taken to repair the harm done;
• Their cultural background, character, age and physical and/or mental condition;
• Whether they have a criminal history;
• Their financial circumstances;
• Why they committed the offence;
• The significance of any background of disadvantage (especially childhood disadvantage) (see further the discussion of ‘moral culpability’ below);
• The probable impact of the sentence on the offender’s family or dependants;
• Whether the offender was affected by alcohol or drugs when the offence was committed, and if so, the circumstances in which the offender became affected;
• Whether the offender has provided any assistance to the administration of justice or law enforcement authorities; and
• Whether the offender is addressing the reason they offended (for example, by undertaking counselling or rehabilitation programs).

It is helpful to have evidence about the offender’s subjective circumstances. This can include a report from a doctor, a letter from the offender to the Court, character references from people who know them and/or family members, or letters from an employer or supervisor in a program. It can also include a report from a psychologist addressing the offender’s mental health.

Moral culpability

(Section 33(1)(i) of the Sentencing Act)

The term “moral culpability” often arises in sentencing and refers to the degree of responsibility or blame the offender should bear for the offence. Many factors inform a person’s moral culpability.

A common example is where a person has had a childhood of significant disadvantage, dysfunction or trauma. For example, some offenders who come before the Court on drug-related offences were introduced to drugs by their parents when they were children. The law recognises that people from dysfunctional backgrounds may not have had the same opportunity as others to learn how to make good decisions that benefit themselves and others.

Another example is where a person lives with a mental illness (such as schizophrenia, bipolar disorder or depression) or a cognitive impairment. In these cases, the Court may find that the moral culpability of the offender is reduced because their mental illness or cognitive impairment contributed to the commission of the offence.

If the judicial officer finds that a person’s moral culpability is reduced because of such factors, this may be taken into account to reducethe sentence that person is given. On the other hand, the very same circumstances may indicate that the offender is someone from whom the community needs protection. The need for community protection would be a consideration that could be taken into account to increase the sentence. This is an example of where there are sentencing purposes that pull in different directions.

Plea discount

(Section 35 of the Sentencing Act)

If a person pleads guilty, it means they can be sentenced without going to trial. This saves public resources and court time. More importantly, it spares victims and other witnesses the ordeal of having to give evidence in Court.  This is referred to as the “utilitarian value” of the plea. To recognise the value of a plea of guilty, a discount on sentence of up to 25% can be granted, depending on how early the plea was entered. The judicial officer will consider how early the plea was entered and the strength of the prosecution case in determining what the discount should be. This means a person who pleads guilty will usually receive a lesser sentence than they would have received if they had pleaded not guilty and later been found guilty.

Comparative cases

(Section 33(1)(za) of the Sentencing Act)

Where possible, the judicial officer will also consider current sentencing practice in the ACT, referring to similar previous cases or to statistics, to see what other offenders have received when they have been sentenced for the same offence. This assists to maintain consistency in sentencing. Ultimately, however, the sentence imposed is individual to the offender and their offending.

Types of sentences

There are many types of sentences that a court can impose. Each offence committed is given a separate sentence. A judicial officer may impose more than one type of sentence for a single offence. Types of sentences can be split into two categories: non-custodial (a term of imprisonment is not imposed) and custodial (a term of imprisonment is imposed). The most common types of sentences are as follows.

Non-custodial sentences

Non-conviction order

(Sections 17 and 18 of the Sentencing Act)

In exceptional circumstances, even though a person has been found or pleads guilty to an offence, the Court may decide not to enter a conviction. This sentencing option enables a person whose offending is isolated and out of character to have a further chance of maintaining a clean record. This option is only considered where compelling circumstances exist, such as where a conviction for a minor offence would have a disproportionate impact on the person, for example by preventing them from continuing in their occupation. When this occurs, the Court can direct that the charge be dismissed, even though it has been proved (which means no sentence will be imposed) or make a Good Behaviour Order (see below).

Fine

(Sections 14, 15 and 15A of the Sentencing Act)

An offender can be ordered to pay a fine. The maximum penalty in the legislation limits the amount that can be imposed. Before deciding to impose a fine, the judicial officer will have regard to the financial circumstances of the offender and their ability to pay the fine.

Good behaviour order

(Section 13 of the Sentencing Act)

A person can be sentenced to a Good Behaviour Order (GBO). The purpose of a GBO is to encourage rehabilitation. It requires the offender to give an undertaking to comply with specified conditions for a specified period. The “core conditions” of a GBO are stated in section 86 of the Sentence Administration Act. These include a requirement not to commit any further offences. Additional conditions can also be imposed, such as a requirement to accept supervision by Corrective Services. This enables Corrective Services to, for example, monitor whether the person is employed, whether they are using prohibited drugs, and so on. Additional conditions can also include a requirement to perform community service, to make reparation to the victim or undertake drug or alcohol rehabilitation. If an offender breaches a condition of their GBO, the judicial officer may (among other things) cancel the order and resentence the offender or take no further action.

Driving disqualification

Some driving offences carry a licence disqualification which is automatically imposed either from the time of the offence (if the person is issued with an immediate suspension notice) or at the time of sentencing, when the judicial officer notes the automatic disqualification period. The judicial officer does not have the power to cancel or remove an automatic licence disqualification. In other cases, the licence disqualification period is discretionary, meaning that the judicial officer can use their discretion to impose a period appropriate to the seriousness of the offence. The length of the disqualification period will also depend on whether the person is a first or repeat offender.

Deferred sentences

(Section 27 of the Sentencing Act)

Instead of sentencing a person shortly after they have pleaded guilty or been found guilty, the Court can defer or postpone sentencing the person and grant them bail, usually on conditions requiring the person to continue on an established path of rehabilitation. This sentencing option allows the Court to give an offender the opportunity to prove, over a period, that their rehabilitation is genuine and consistent. If, the offender has made positive progress by the time the offender comes back before the Court, a wider range of sentencing options may be appropriate. For example, where an offender has made significant positive progress towards rehabilitation, it may be appropriate for the Court to impose a GBO or an Intensive Correction Order rather than imprisonment.

Custodial sentences

Imprisonment is the sentence of last resort. The Court can only impose a term of imprisonment if satisfied, having considered possible alternatives, that no other penalty is appropriate: section 10 of the Sentencing Act.

A sentence of imprisonment does not always mean that the offender must go directly into full-time detention. In limited circumstances, the Court can order that a sentence of imprisonment be served in an alternative way. The different ways in which sentences of imprisonment may be served are:

Full-time detention

If an offender is sentenced to full-time imprisonment, they will be taken directly from Court to the Alexander Maconochie Centre (for adults) or Bimberi Youth Justice Centre (for young people). The judicial officer will decide the term of the sentence and will specify the dates when the sentence begins and ends. The start date can be backdated to account for any time the person may have already spent in custody for the offence, such as if bail was refused when the person was arrested.

If a judicial officer imposes a sentence of full-time imprisonment for more than one offence, they will also decide whether the sentences are served cumulatively (one after the other) or concurrently (at the same time).

If the Court sentences an offender to a period of 12 months imprisonment or more, the Court is required to set a non-parole period. The offender will not be eligible to apply for parole before the expiration of the non-parole period. The decision to grant parole is made by the Sentence Administration Board. If granted parole, the offender will serve the balance of their sentence in the community, as long as they comply with the conditions of their parole. If they do not comply with those conditions, the Sentence Administration Board may revoke their parole and the offender will have to return to custody.

Suspended sentence order

A sentence of imprisonment may be wholly or partly suspended. Upon suspending a sentence, the Court must make a GBO (see above) or a Drug and Alcohol Treatment Order (DATO) (see below). If the Court decides to wholly suspend the sentence, the offender is not taken into custody at all, unless they commit further offences or breach their GBO (see above). Alternatively, the Court can order that the sentence be suspended after a fixed period. This requires the offender to serve part of their sentence in custody but to have the rest of the sentence suspended while they are subject to a GBO (see above).

If a person breaches the conditions of their GBO (or DATO) while their sentence is suspended, they are liable to have the Order cancelled and to be sent to gaol to serve the time remaining on their sentence.

Intensive correction order

(Section 11 of the Sentencing Act)

A sentence of imprisonment can be served in the community by Intensive Correction Order (ICO). An ICO is made under section 11 of the Sentencing Act and requires the offender to comply with the core conditions in section 42 of the Sentence Administration Act. These include a requirement not to commit any further offences, not to use or obtain any drugs, and to follow any directions given to them in relation to the ICO. An ICO can also include additional conditions, such as abiding by a curfew or undertaking community service, counselling, or drug or alcohol rehabilitation.

Drug and alcohol treatment order

A sentence of imprisonment can also be served by a Drug and Alcohol Treatment Order (DATO). A DATO can only be made if the eligibility criteria in section 12A of the Sentencing Act are met. The Order requires a person to complete a rehabilitation plan designed for them, with the support of Corrective Services, Canberra Health Services and judicial supervision by the judge in the Drug and Alcohol Sentencing List.

Appealing a sentence

An appeal from a sentence can be brought by either the offender or the Director of Public Prosecutions. The grounds for appeal may be that the sentencing judge made a specific error in the sentencing process, or that the sentence imposed was too harsh (“manifestly excessive”) or too lenient (“manifestly inadequate”).

Appeals from sentences imposed by a magistrate are determined by a single judge of the Supreme Court. Appeals from sentences imposed by a judge of the Supreme Court are determined by the Court of Appeal (three judges of the Supreme Court sitting together). In rare circumstances, there can be an appeal from the Court of Appeal to the High Court of Australia.