Sentencing

Potentially. In certain situations, you may be required to disclose your conviction & criminal record on official documents, typically for ten years following the sentence, so long as the past offender has not been convicted of another subsequent offence.

We urge you to call our lawyers today to determine if you must declare your conviction.

Section 3A Crimes (Sentencing Procedure) Act 1999 proves the purposes of sentencing that a decision maker must take into account:

“The purposes for which a court may impose a sentence on an offender are as follows–

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

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

In addition, the presiding Magistrate or Judge must also consider the objective seriousness of the offence and any aggravating or mitigating factors.

What are aggravating or mitigating factors?

Section 21A Crimes (Sentencing Procedure) Act 1999 outlines aggravating, mitigating and other factors in sentencing:

(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters–

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b) the offence involved the actual or threatened use of violence,

(c) the offence involved the actual or threatened use of a weapon,

(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e) the offence was committed in company,

(ea) the offence was committed in the presence of a child under 18 years of age,

(eb) the offence was committed in the home of the victim or any other person,

(f) the offence involved gratuitous cruelty,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i) the offence was committed without regard for public safety,

(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib) the offence involved a grave risk of death to another person or persons,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity,

(o) the offence was committed for financial gain,

(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if–

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

Unless it is a fine only offence (you can receive a non-conviction for fine only offences) then the below sets out all the possible sentencing outcomes:

• Section 10(1)(a) – charge proven, no conviction recorded, it is dismissed without penalty;
• Section 10(1)(c) – same as above but on the conditions that the person enters into an agreement to participate into an intervention program;
• Section 10A – Conviction recorded, no further penalties apply;
• Condition release order (CRO) with or without a conviction – The Court has the discretion to impose a conviction or not under a CRO. It is effectivlye a good behavior bond for up to two years and the Court can impose further conditions including attending drug and alcohol programs;
• Fines – monetary penalty;
• Community Corrections order – it is similar to an CRO but it is a more serious outcome. This can include up to 500 hours of community service and a curfew;
• Section 11 Adjournment – it is an extended adjournment in the sentencing proceedings (up to 12 months) for the purposes of the offender participating in rehabilitation or other intervention programs before they are sentenced. Note, you have to be on bail in order to be eligible;
• Intensive Correction order (ICO) – this is a custodial sentence up to two years or three years if you have multiple offences. The custodial sentence is served in the community and supervision by correctives is mandatory. The Court has the discretion to include up to 750 hours of community service, home detention (for some offences) or even electronic monitoring; and
• Imprisonment (Gaol) – lastly, if none of the other sentencing options are appropriate the Court will impose a term of imprisonment. This can either be fixed or with a parole period. For example the Court may give you 4 years imprisonment but you’ll be eligible for parole in 2 years.