The sentencing process

Contributed by Lorana Bartels and Anthony Hopkins. Current to November 2021.

The sentencing process can only commence once a person has pleaded guilty or been found guilty of an offence. Before this, a person is presumed innocent and cannot be subjected to punishment. A person may still have their liberty restricted (ie, be detained on remand at the Alexander Maconochie Centre (AMC) or as a young person at the Bimberi Youth Justice Centre) under the Bail Act 1992 (ACT). Information about bail can be found in the section on bail.

The magistrate or judge must hold a sentencing hearing before imposing a sentence. The time that the hearing takes will vary, depending on the seriousness of the charge, the number of charges and the complexity of the case. In a simple case, the process may be over very quickly, immediately after the finding of guilt is recorded. However, in more serious cases, a sentencing hearing will often be adjourned (delayed) to a later date so that the court can receive more information about the circumstances of the offence and/or the offender. Such information might include:

• A pre-sentence report (see Part 4.2 of the Sentencing Act): This is a report prepared by ACT Corrective Services based on one or more interviews with the offender and other information obtained by the pre-sentence report writer. This information might relate to:
  • the reasons for offending;
  • the offender’s attitude to the offence, including whether they are remorseful;
  • any history of offending;
  • any history of drug and alcohol misuse or mental health concerns;
  • their prospects for rehabilitation; and,
  • their risk of reoffending.

• A Court Alcohol and Drug Assessment Service (CADAS) report (see s 40B of the Sentencing Act): In circumstances where offending is related to alcohol or drug misuse, the magistrate or judge can order the preparation of a CADAS report. This report will detail the nature and extent of any drug and alcohol misuse issues and identify treatment services available to the offender. These services are designed to support rehabilitation and reduce the risks of reoffending.
• A victim impact statement (Part 4.3 Sentencing Act): In many cases, the prosecution will provide a victim impact statement to a court. A victim impact statement is made by or for a victim of an offence and contains details of the harm suffered by the victim because of the offence. Such statements are designed to enable the court to recognize the harm caused by an offence. Parents, close family members or relatives and carers of the victim can make victim impact statements. Subject to certain restrictions, an offender or their lawyer may cross-examine the maker of the victim impact statement.
• Character References: Commonly, offenders will ask the court to take account of their past good character to demonstrate that the offence is out of character, or as evidence of an acceptance of responsibility and of remorse (that is, that they are sorry) or positive prospects of rehabilitation (see s 33(1)(m) and (w) Sentencing Act). Even where a person has been convicted of offences previously, good character evidence may be very important to show that an offender has reached a turning point. Character references may be written by family members, friends, employers or respected members of the community. The reference must set out how the writer knows the offender and state that the writer is aware of the current offence(s) for which the offender is to be sentenced, as well as any history of past offending. The prosecutor may cross-examine a character referee, though they often do not do so.
• Letter of Apology: Where an offence has caused harm, an offender’s recognition of this and the remorse they feel is an important matter that the magistrate or judge will take into account. In certain situations, it may be appropriate to offer a written apology. It may also be appropriate for an offender make an apology or give evidence of their remorse in the court as a witness. Where an offender gives evidence as a witness, they can be cross-examined by the prosecutor. If the offender has a lawyer, the possibility of writing an apology letter or giving evidence should be discussed as soon as possible.

Restorative Justice Conferencing

In appropriate circumstances, the sentencing hearing may also be adjourned to enable an offender to participate in a restorative justice conference under the Crimes (Restorative Justice) Act 2004 (ACT). These conferences are designed to assist victims to take an active role in repairing the harm done by offenders. By bringing the offender and the victim together in a supported safe environment, these conferences can also enable an offender to see the real impact of their offending, acknowledge this harm, express remorse and make a commitment to their own rehabilitation. Genuine participation in this process can result in a reduction in the penalty imposed by the magistrate or judge (see s 33(1)(y)).

At the sentencing hearing

In a case where an offender has pleaded guilty, once the sentencing hearing commences, the prosecutor will provide the court with a document that sets out the factual circumstances of the offence(s). An offender must be given a chance to consider this document and decide whether to agree. If the offender agrees, then this document becomes the agreed statement of fact. If an offender does not agree, then the judge or magistrate will have to determine the factual basis for the sentence. Both the prosecutor and the offender may call witnesses or introduce other evidence to enable this determination to be made. If the offender has been found guilty after pleading not guilty, then the facts of the offence will be those found by the court following the hearing or trial.

Once the facts have been determined, the prosecutor will also provide the court with a document setting out any past criminal offending of which the offender has been found guilty. Again, the offender must be given a chance to challenge the accuracy of the record. The prosecutor will then provide the court with any pre-sentence report, CADAS report and/or victim impact statement. The victim impact statement can be made orally or read out in court. The prosecutor may also provide other reports to the judge or magistrate, such as a forensic mental health report if the offender has been a patient of mental health services. If the court is sentencing a young person, they may also receive a report or information from Child and Youth Protection Services. If there is any disagreement about the contents of these documents, or any oral evidence, then the offender, or their lawyer, may cross-examine the person who made the report or gave the oral evidence.

The offender may then provide any reports they seek to rely upon, including any report by a psychologist, psychiatrist or rehabilitation treatment provider, character references and/or a letter of apology. The offender may give evidence themselves about the circumstances of the offence or their personal circumstances. The offender may also call character witnesses to give evidence directly to the magistrate or judge. All of this information and evidence must be relevant to the purposes of punishment and relevant sentencing considerations.

Once all of the evidence is before the magistrate or judge, the offender will be invited to make submissions in relation to relevant sentencing considerations, the purposes of punishment and the appropriate penalty. The prosecution will then be invited to make submissions in relation to matters the court should take into account. After this, the magistrate or judge will either sentence the offender immediately or adjourn the case to consider the evidence and determine the penalty. The magistrate or judge must give reasons for the sentence they impose, though these need not be detailed, particularly for less serious matters.