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Sentencing

09 Sep 2016 - 11:15 | Version 8 |

Contributed by RennieAnderson and current to 1 May 2016

In the NT, over 90% of people accused of offences either plead guilty or are found guilty of at least some of the charges levelled against them. The laws governing sentencing determine how the community deals with a person once they have been convicted of an offence. In the NT, the law relating to sentencing and the enforcement of most sentences is, for adult offenders, contained primarily in the CCA and the Sentencing Act (SA). Some Acts, such as the Traffic Act and MDA contain their own penalties. Laws governing the sentencing of youths (under 18 years) are contained in the Youth Justice Act. This section is concerned only with the sentencing of adults. Information about the sentencing of juveniles can be found in Young people and crime.

The sentencing process

The way the sentencing process begins depends on whether an offender has pleaded guilty or not guilty to an offence.

Where the offender has entered a plea of not guilty, but the court, after hearing all the evidence, finds the offence proved, the judge decides what penalty to be imposed. Because the 'facts' of the case were presented during the trial, the judge or magistrate does not need to hear them again to determine the sentence.

Presenting the 'facts'

Where an offender admits to committing an offence, a trial or hearing is not necessary, so to obtain the information needed to set an appropriate sentence, the judge calls on the prosecutor to outline its facts. A prosecutor generally makes these facts available before the court session begins.

Before these facts are read in court or given in evidence, they should be checked for accuracy by the offender or their lawyer. If the offender seriously disputes the facts as stated by the prosecution, a plea of guilty may be inappropriate. An offender can indicate to the court that they wish to plead guilty to the offence, but they do not agree with the facts. If the dispute about the facts is not trivial or irrelevant, the court will order a hearing on the facts.

Informing the court of any prior convictions

A prosecutor then informs the court of any prior convictions recorded against the offender. This not only includes convictions in the Northern Territory, but also in other states and territories. The offender or their lawyer should check that any record of prior convictions is accurate as mistakes do sometimes occur.

Making a plea to lessen the sentence

Once the court has heard the 'facts' of the case, either throughout the trial or from the prosecutor after a guilty plea, the judge asks the offender or the offender's lawyer to present any facts to mitigate (lessen) the offence. This is usually referred to as a plea.

The offender or their lawyer may call witnesses to testify as to the offender's good character or to explain the circumstances that led the offender to commit the offence. The offender's lawyer may also hand the judge references of the offender's character. A referee can be called on to give evidence. The offender's lawyer may also hand the judge any relevant reports from experts, such as medical or psychiatric reports. The offender's lawyer may also call the offender to give evidence in the witness box. In the witness box, the offender can explain why they committed the offence and put forward any mitigating circumstances.

Calling for pre-sentence reports

Sometimes a judge will call for a pre-sentence report from Correctional Services to help determine sentence or assess an offender's suitability for certain types of penalties, such as community service or home detention. A person has to be convicted before a pre-sentence report can be ordered. If a pre-sentence report is called for, the case will usually be adjourned for around six weeks to enable it to be prepared.

The court also hears from the victim, either through a victim impact statement or a victim report (see Victim impact statements and victim reports , below.

Handing down the sentence

Finally, the offender or their lawyer will address the judge on why a severe penalty should not be imposed, and put forward the penalty they believe most appropriate. The judge will then pronounce sentence.

What does the court take into account?

Most criminal offences carry a maximum penalty. Some offences carry a minimum penalty. When deciding what penalty to impose, a judge can't exceed the maximum penalty allowable under the Act that created the offence. In addition, the courts will, when determining a sentence, give regard to the following general principles [SA s.5(1)]:
  • the need to ensure that the offender is adequately punished for the offence;
  • the rehabilitation of the offender;
  • the deterrent effect any sentence under consideration may have on the offender or other persons;
  • the protection of the general community.
A judge will also pay particular attention to the following factors [SA s.5(2)]:
  • the nature and seriousness of the offence and whether the victim suffered any physical, psychological or emotional harm;
  • the extent to which the offender is to blame for the offence;
  • any damage, injury or loss caused by the offender;
  • the offender's character, age and intellectual capacity;
  • the prevalence of the offence;
  • how much assistance the offender gave to the investigating police;
  • whether the offender pleaded guilty, and if so, at which stage in the proceedings was a guilty plea indicated;
  • time spent in custody before being sentenced;
  • sentences already imposed on the offender that have not been served;
  • sentences that the offender is liable to serve because of the revocation of orders, such as breach of suspended sentence;
  • if the offender is the subject of a community work order, the level of compliance with that order.

Determining an offender's character

When determining an offender's character for the purpose of sentencing, a judge can take into account a number of factors including [SA s.6]:
  • the number, date, seriousness and relevance of any previous convictions;
  • the general reputation of the offender;
  • any significant contributions the offender has made to the community by the offender.

Victim impact statements and victim reports

As a result of the Sentencing Amendment Act 1996, a victim of crime can now make a victim impact statement to the court during sentencing. A statement should make clear the physical, psychological and/or property damage or injury the victim sustained as a result of the crime. A statement can be given verbally or in writing. The police or the Witness Assistance Service located at the Office of the Director of Public Prosecutions (see Contact points ) can help a victim prepare their statement.

If a victim doesn't wish to make a victim impact statement, the prosecutor prepares a victim report for the court's information and use.

The court may take a victim impact statement or victim report into account when sentencing an offender.

'Double jeopardy'

A person who performs one action can in fact commit more than one offence. For example, a drunk driver commits at least two offences: driving under the influence and exceed 0.05. However, under the legal principle of double jeopardy a drink-driver can only be penalised for one of these offences. Police may charge them with both offences, but the driver can only be convicted of one. When the case reaches court, the police only pursue the charge they believe will most likely result in a conviction.

Sometimes, one incident results in a series of connected offences. For example, a person who breaks into a house to commit rape has committed at least two offences: unlawful entry and sexual assault. In such a case, where an offender is convicted of separate but connected offences, several convictions are recorded and a sentence determined for each offence. Prison term sentences are generally served concurrently (at the same time) where the offences occur as part of the same set of events.

Minimum penalties

Some legislation sets out mandatory minimum sentences where a person pleads guilty or is found guilty of an offence. Some examples are:
  • driving under the influence [Traffic Act s.19(1)]: minimum penalty is disqualification of licence for six months for a first offence; 12 months for a second or subsequent offence
  • exceed .08 [Traffic Act s.19(2)] minimum penalty is disqualification of licence for six months for a first offence; 12 months for a second or subsequent offence
  • exceed .15 [Traffic Act s.19(2)] minimum penalty is licence disqualification for 12 months for a first offence; 18 months for a second or subsequent offence
  • driving at a dangerous speed (45 km or more over the speed limit) [Traffic Act s.30A]: minimum penalty for a first offence is three months licence disqualification; six months for a second or subsequent offence
  • for violent or sexual offences [SA s.78DG & DH, s.78F] a court must impose a term of imprisonment where an offender has previously been found guilty of a violent offence.

Mandatory terms of Imprisonment

The regime for mandatory minimum sentences of imprisonment is applied under the SA [s.78C to s.78DH]. The offence charged and whether the person has previously, no matter whether such offence was committed in another state or territory, and no matter, when committed, will determine the mandatory sentence of actual imprisonment imposed. The SA uses a system of classifying offending according to particular levels (level 1 to level 5), which once established to the satisfaction of the sentencing Court, requires the Court to impose the given mandatory minimum sentence of imprisonment. Second or subsequent offending requires the sentencing Court to impose longer sentences of minimum actual imprisonment. The SA does, however, provide a discretion to the sentencing Court, in limited circumstances, not to impose the mandatory sentence of imprisonment [s.78DI].

Types of penalties

Release without conviction

A conviction for an offence in the CSJ often has serious consequences. For example, a conviction for a dishonesty or drug offence can carry a lasting stigma (see The effects of criminal convictions ). Conviction for certain traffic offences will see the offender's driving licence automatically disqualified.

The courts have, however, in certain circumstances, the power to pass a sentence without recording a conviction for that offence.

Where a charge is proved, but the court decides the offender should not be punished due to their character, history, age, health or mental condition, standard of education or ethnic background, or because the offence is trivial in nature or there are extenuating circumstances, the court may, without proceeding to a conviction, make an order, dismiss the charge, impose a fine or place the offender on a good behaviour bond. Such orders do not have the detrimental impact that convictions do.

In dismissing a charge, the court is able to make orders to 'discharge the defendant absolutely' without conviction [SA s.10], though such orders are rarely made.

Most often, offenders are released on a bond for a specified sum of money to be of good behaviour for a period of up to five years, otherwise known as a good behaviour bond.

Good behaviour bonds

Good behaviour bonds are imposed under sections 11 and 13 of the SA. Conditions may be attached to a bond, such as a residential conditions or supervision orders. For example, an offender can be told where they are to live, who they can't associate with, and can be required to attend drug alcohol rehabilitation programs.

When a bond is entered into the offender must sign a document (the bond) agreeing to be of good behaviour for the period specified in the bond (up to five years). The bond is successfully completed at the end of the bond period, provided the offender does not commit further offences during this period and obeys other conditions of the bond (if any). If further offences are committed during this period or there is a breach of a condition of the bond, for example, for failing to report to the Correctional Services or live at a specified place, the offender might be required to go back to court and can be re-sentenced for the original offence. Instead of being re-sentenced the court also has the option of finding the breach proved but taking no action on it, or ordering that all or part of a financial recognisance (promise to pay money) be paid. A bond can be varied if the offender's circumstances have changed significantly since the bond was imposed [SA s.14].

Fines

Fines are the most common penalty imposed in the CSJ. The Act that created a particular offence usually sets out whether a fine is to be imposed and what its maximum (and in some cases minimum) amounts are.

Under the SA, a court can impose the maximum fine allowed under the Act that created the offence committed or, where no amount is specified, a maximum of 20 penalty units [SA s.16(2)]. A penalty unit is $110. Penalty units are set out in the Penalties Unit Act 2002.

Amongst other factors, a court will, when calculating the amount of a fine, take into account the financial circumstances of the offender, but is not prevented from imposing a fine simply because the offender's financial circumstances are unknown or they do not have enough money to pay.

The Fines and Penalties (Recovery) Act 2001 (FPRA) sets out how a fine imposed by a court is to be administered and recovered. The FPRA also establishes a Fines Recovery Unit (FRU) to administer the recovery of fines and penalties. The FRU administers most fines imposed by a court, as well as infringement notices issued by police or other approved agencies including:
  • traffic infringement notices;
  • bail forfeitures;
  • sureties;
  • court fines;
  • restitution;
  • parking fines.
Courts can only allow 28 days for payment of fines [FPRA s.23]. A person who can't pay a fine within 28 days should contact the FRU and enter into a time to pay agreement (TTP agreement). A TPP agreement allows a person to either extend the time to pay the whole fine or pay the fine in instalments. Payments can be made by cash, credit, cheque, direct debit, telephone or post. The FRU also has a direct debit payment arrangement with Centrelink, which allows deductions to be made directly from benefit payments. The minimum payment is $10 per fortnight. A person may also apply to the FRU to write off the debt where payment would cause financial hardship.

If a fine is not paid within 28 days or the TTP Agreement has not been complied with, the FRU issues a fine enforcement order which provides an offender with a further 28 days to pay the fine and any enforcement costs. If the fine remains unpaid, the FRU may take the following types of enforcement action:
  • suspend the offender's drivers licence;
  • suspend the offender's vehicle registration;
  • restrict the offender's business with the Motor Vehicle Registry;
  • property seizure orders;
  • garnishee wages;
  • examination summons;
  • register charge on property;
  • community work orders;
  • issue a warrant for breach of a community work order (last resort).
The FRU, which is a registry of the Local Court, has the power to do all these things without going through the court.

A person is likely to have their driver's licence or registration suspended first. A suspension remains until all outstanding money is paid in full. Where a person does not hold a driver's licence or have vehicle registration, the FRU will ask the MVR to stop doing business with the person. For example, a person won't be able to apply for a driver's licence until all fines are paid. If the fine is still unpaid after three months, the FRU then considers civil action, such as garnisheeing wages and seizing property.

The FRU may also order a person to perform community work to pay off fines. The current rate for community work orders is $12.50 an hour or $100 for an eight hour day. If a community work order is revoked, the FRU can issue a warrant to have the person imprisoned. The current default rate for time spent in prison is $100 per day.

Victim's Financial Assistance Levy

In addition to any other penalty, a person convicted of an offence is liable to pay a victim's financial assistance levy for each conviction, unless they have incurred an immediate gaol sentence [Crimes (Victims Assistance) Act s.25B]. Depending on when the given offence was committed determines the set amount of the levy to be imposed.

Arrangements and penalties regarding payment of the victim's levy are the same as for payment of fines (see Fines, this section).

Community work orders

Instead of imposing a prison sentence, a court may order an offender to do unpaid community work to a maximum of 480 hours [SA s.34]. An offender must first be assessed for suitability by Correctional Services.

A community work order is breached when an offender:
  • fails to do some or all of the community service work within the time period set under the order;
  • fails to do the work satisfactorily;
  • disturbs others at the attendance centre;
  • assaults, threatens or insults a supervising officer;
  • fails to pay the outstanding balance of a fine within the specified time;
  • commits an offence during the period of the order.
If any breach occurs, the offender is taken before a court, which may vary, confirm or revoke the community work order, and in doing so can take into account the extent to which the order has been complied with. Where a court is satisfied that a breach of a community work order has occurred, it may order that the person be imprisoned for a term that equals one day of imprisonment for each eight hours of the approved project that the person failed to participate in, or for seven days, whichever is the greater [SA s.39(4)].

Getting a community service worker

Currently there are a number of community work projects running in Darwin. Almost all towns and major communities have projects. In some areas a community service project is combined with a local Community Development Employment Program (CDEP) Scheme.

Any organisation interested in providing work for people carrying out community service orders should make a written submission to the Community Corrections. The Community Work Advisory Board makes decisions to approve organisations as Community Work Providers. The submission should contain details of the type of work available, how the work will be supervised, and the financial background and community base of the organisation. To be approved, the organisers of a project must be able to provide supervision for eight hour periods. Commercial propositions are not acceptable.

Restitution orders

A court has the power to order an offender to make restitution to compensate a person who sustains injury or loss as a result of the offender's actions [SA s.88], and in particular to:
  • compensate for injury suffered by any person as a result of the offence. But it is rare for judges to award compensation for injury. This is normally done by the victim seeking compensation under the Crimes (Victims Assistance) Act;
  • return any property relating to the offence;
  • compensate for damage, loss or destruction to property that occurred as a result of the offence.
The court order may stipulate whether the amount is to be paid as compensation or restitution (which doesn't amount to any practical difference), and can specify the person who it is to be paid to, the time period it must be paid within, and the way payment is to be made. An offender can apply to the FRU or the court for an extension of time to pay.

Defaulting on payments

The court may also impose a penalty of up to 12 months imprisonment to take effect if the compensation or restitution is not made within the time allowed [SA s.93]. Sometimes, where an offender has defaulted on restitution payments, the court directs them to show cause; that is, to explain why the sentence of imprisonment should not be carried out. It can also order that a warrant of distress be issued, allowing, within certain limits, property to the value of the compensation or restitution ordered to be seized from the offender.

When compensation is to be paid by instalments and one instalment is missed, the total amount immediately becomes payable. If it is not paid, a warrant may be issued for the arrest of the offender and they may be required to serve the term of imprisonment the court imposed if restitution payments were not made.

Imprisonment

A term of imprisonment can only be ordered if the Act that created the offence allows for imprisonment. An Act sets down the maximum period of imprisonment for a particular offence, but such maximums are generally reserved for the worst type of conduct that could constitute the offence. The court can and often does impose a lesser sentence. Some offences also carry minimum penalties, including minimum terms of imprisonment (see Minimum penalties , above).

Courts are required to consider first all other sentencing options and to view imprisonment as a last resort except when dealing with certain types of drug-related offences and murder (see Drug offences ). A term of imprisonment usually begins on the day that sentence is passed [SA s.62(1)]. However, an offender who has spent time in custody for the same offence, and then is later convicted of this offence may have their gaol sentence backdated to begin on the day to take into account this period spent in custody. Where an offender is sentenced to more than one term of imprisonment, sentences may be ordered to be served concurrently (at the same time) or cumulatively (one after the other).

In the Local Court a judge can only impose a term of up to five years imprisonment for any one conviction, even where the maximum penalty for the offence is longer [SA s.122]. However, the court can impose an unspecified longer sentence on an offender convicted of multiple offences.

The Supreme Court can impose a maximum sentence of life imprisonment for certain offences, such as murder.

Other orders a court can make

Suspending a sentence

A judge who thinks an offence serious enough to impose a sentence of imprisonment may, due to certain factors, such as age or previous good character, suspend the sentence. For example, a person who is before the court for growing 40 cannabis plants, but who has no relevant prior convictions and a strong basis for leniency, might receive 12 months gaol wholly suspended. A person with a minor cannabis history might receive a partly suspended sentence, such as 12 month gaol suspended after 28 days have been served.

After ordering the sentence suspended, the judge must then specify a period during which the offender is not to commit another offence punishable by imprisonment [SA s.40(6)]. This is, in effect, similar to a good behaviour bond (see Release without conviction , this section), but, unlike a bond, the offender doesn't have to agree with the order being made. If the offender is found guilty of another offence during the period specified, the court must, unless it would be unjust to do so, sentence the offender to serve both the original suspended term of imprisonment plus the latest term imposed [SA s.43(7)]. A suspended sentence can also have conditions attached to it [SA s40(2)]. If an offender breaches a condition they can be arrested and brought to court. A court can order that all or part of the suspended sentence be served, can extend the operational period of the sentence, or can make no order other than to find the suspended sentence has been breached [SA s43(5)].

Home detention

An offender sentenced to a term of imprisonment may have the sentence suspended on condition they enter into a home detention order [SA s.44], which can be for no more than 12 months. Under a home detention order an offender is required to:
  • live at a specified residence or place;
  • remain at the premises or place, unless Correctional Services has given them permission to leave, to go to work for example;
  • comply with any reasonable conditions specified by Correctional Services, such as abstaining from alcohol.
A home detention order can only be made with the offender's consent and if a suitable place of residence is available. A surveillance officer, employed by Correctional Services, carries out frequent day and night checks on the offender's place or premises to ensure they are complying with the order.

An offender breaches a home detention order when they [SA s.48(1)(h)]:
  • ignore the terms of the order;
  • fail to live at the specified premises or place;
  • behave abusively towards a surveillance officer;
  • interfere with a person also residing at the offender's premises;
  • commit an offence during the term of the order.
If the breach is a further offence, the offender must serve the suspended sentence. However, if the further offence is a regulatory offence or is not punishable by imprisonment the court does not have to order that the suspended sentence be served. Any gaol term incurred for the new offence must be served cumulatively [SA s.48(13)]. Where other breaches occur, the court can revoke the home detention order, allow it to continue, extend the period it is in force or vary it.

A home detention order may be reviewed at any time by a court. If it appears to be in the interests of justice to do so - having regard to circumstances that have arisen since the order was made - the court may vary the terms and length of the order, discontinue it and require that the offender complete their sentence in prison, or revoke the order and sentence the offender anew.

Setting a non-parole period

A non-parole period is the minimum period of time an offender is required to serve in custody. Where a person is sentenced to 12 months imprisonment or more, and the sentence is not suspended in whole or in part, a non-parole period must be fixed by the court unless the court does not think it is warranted, given the nature of the offence or the prior convictions of the offender [SA s.53(1)].

The non-parole period should not be less than 50% of the total sentence (called the head sentence) [SA s.53(3)]. In the case of certain sexual offences, rape for example [CCA s.192], the non-parole period should not be less than 70% of the total sentence. The NT Parole Board decides whether a prisoner is to be released on parole (see Prisoners ).

Appeals

It is essential to our system of justice that unreasonable or incorrect decisions can be reviewed. If a judge makes a decision about a case that is incorrect then both the accused and the Crown have a right to appeal the decision. An error can include a decision about a relevant fact in the case, an error about the way the law applies or an incorrect decision as to whether the person is guilty or not of the offence.

If a judge imposes a sentence that is incorrect or unreasonable, both the accused and the Crown can appeal against the sentence. The court has the power to reduce or increase a sentence as it thinks fit.

Before appealing, a person in custody should note that:
  • time spent in prison waiting for an appeal to be heard does not count towards the sentence unless the appellant (person appealing) makes an application requesting that the time be counted, and the court makes a special order to that effect
  • it may be several months before the appeal is heard, during which time an appellant is ineligible for various programs arranged by Correctional Services.
An appeal against a decision in the CSJ, YJC or SCT must be lodged within 28 days of the date the sentence was given. A right of appeal applies to both NT and Federal cases.

Bail, pending the outcome of an appeal, can be obtained in certain circumstances (see Bail ).

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