Criminal Law

By Satomi Hamon


Disappointed or angry about a recently reported sentencing decision? Maybe you need to know more…

The process of sentencing an offender is complex and often misunderstood. Most people reach conclusions about sentencing based on media reports, and you often see people on social media complaining that the judge or magistrate has got the sentence wrong. Journalists condense lengthy and complex court matters into concise news stories – and, often, they are written with a little bias and sensationalism to keep things interesting. This means they do not cover all the facts of a case, and it can be difficult for a member of the public to judge whether a sentence is actually too harsh or too lenient.

Judges and magistrates are required to weigh up all the facts of a case, including any aggravating or mitigating factors, the applicable sentencing purposes, and the relevant sentencing principles. Sentencing judges and magistrates must provide reasons for the sentence imposed. These reasons are recorded and referred to as sentencing remarks.

If a judge or magistrate does not appropriately consider the relevant sentencing factors, purposes and principles this can provide grounds for an appeal to a higher court. Only a very small percentage of sentences are overturned on appeal, as, for the most part, courts get it right.

Sentencing factors

In the Australian Capital Territory, there are many factors a court must consider when deciding how an offender should be sentenced (if at all). They are contained in section 33 of the Crimes (Sentencing) Act 2005 (ACT), and include:

  • the nature and circumstances of the offence;
  • any other offences required or allowed to be taken into account;
  • if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—the course of conduct;
  • if the personal circumstances of any victim of the offence were known to the offender when the offence was committed—the circumstances;
  • any injury, loss or damage resulting from the offence;
  • the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
  • any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence;
  • the degree of responsibility of the offender for the commission of the offence;
  • a plea of guilty by the offender;
  • any assistance by the defence in the administration of justice;
  • any assistance by the offender to law enforcement authorities;
  • the cultural background, character, antecedents, age and physical or mental condition of the offender;
  • the financial circumstances of the offender;
  • the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants;
  • whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected;
  • the degree to which the offence was the result of provocation, duress or entrapment;
  • whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;
  • whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;
  • whether the offender was in a position of trust or authority when the offence was committed;
  • the reason or reasons why the offender committed the offence; and
  • whether the offender has demonstrated remorse.
Sentencing purposes and principles

A court may impose a sentence on an offender for one or more of the following purposes[1]:

  • to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
  • to prevent crime by deterring the offender and other people from committing the same or similar offences;
  • to protect the community from the offender;
  • to promote the rehabilitation of the offender;
  • to make the offender accountable for his or her actions;
  • to denounce the conduct of the offender; or
  • to recognise the harm done to the victim of the crime and the community.

Each purpose is equally important and can overlap, and even conflict. For example, protection of the community may not align with the rehabilitation of the offender. As noted by the High Court of Australia, the purposes of sentencing cannot be “considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence, but sometimes they point in different directions.”[2] In every case, a judge or magistrate will look at the features of the offending and the offender and decide on the purpose or combination of purposes that apply in that case.

In sentencing, a court must also take sentencing principles into account. Some of these principles include:

  • parsimony– the sentence must be no more severe than is necessary to meet the purposes of sentencing;
  • proportionality– the overall punishment must be proportionate to the gravity of the offending behaviour;
  • parity– similar sentences should be imposed for similar offences committed by offenders in similar circumstances; and
  • totality– where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour.

Sentencing is a complicated task, and each matter has a unique set of circumstances that must be properly considered. Judges and magistrates are usually assisted in this task by submissions made by prosecutors and defence lawyers regarding the relevant sentencing factors, purposes and principles.

These submissions and the remarks made by judges and magistrates during sentence hearings are often cherry picked by journalists to create the most interesting story to publish. It would be wise to remember when reading these articles that the court’s reasons for a sentence are probably not reflected in full. If, after reading a media report about a sentence recently imposed on an offender, you feel dissatisfied by the penalty, I recommend you find and read the court’s published sentencing remarks.

ACT Supreme Court judgments are free and easy to access online via the following websites:

The ACT Court website

The Australasian Legal Information Institute (Austlii):

[1] Section 7(1) of the Crimes (Sentencing) Act 2005

[2] Veen v The Queen (No 2) (1988) 164 CLR 465 at 476.