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 Types Of Punishment 

Sentencing options are determined by legislation, which generally sets out maximum penalties for particular offences. Within this framework, sentencing judges or magistrates have a discretion as to the penalty that will be imposed. In New South Wales, the Crimes (Sentencing Procedure) Act 1999 sets out the range of penalties that may be imposed. These can be divided into two classes: custodial and non-custodial.

CUSTODIAL PENALTIES

Custodial penalties require the offender to be deprived of liberty in some way. In Australia, the general principle expressed in legislation is that imprisonment is the sentence of last resort. The Crimes (Sentencing Procedure) Act 1999 states in section 5 that ‘a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate’. The forms of custodial penalties are imprisonment, periodic detention and home detention.

IMPRISONMENT

When a court sentences an offender to a term of imprisonment, the court sets a non-parole period (that is, a minimum period for which the offender must be kept in detention). The non-parole period must be not less than three-quarters of the term of the sentence, unless the court decides that there are special reasons justifying a shorter non-parole period. A court may decline to set a non-parole period (and so require the offender to serve the whole term in prison) if it appears this is appropriate.

If the offender has been in custody on remand (that is, detained while waiting for trial and during the trial), the term of imprisonment is adjusted to take account of the time already spent in prison. The court must inform the offender of the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole.

If the offender receives sentences for more than one offence, the sentences are normally to be served concurrently (that is, the sentences are served at the same time). However, the court may order that the sentences be served consecutively (each sentence commencing at the termination of the preceding sentence).

In some States a court is able to impose an indefinite sentence of imprisonment on an offender. For this type of sentence, the court does not set a minimum period of imprisonment. Instead the offender is sentenced to imprisonment, with the period of release to be determined by the court at some time in the future. For example, in Victoria s 18A of the Sentencing Act 1991 allows a court to impose an indefinite sentence on a person aged 21 or over who is convicted of a serious offence, regardless of the maximum penalty for the offence. There is no provision for indefinite sentences in New South Wales.

PERIODIC DETENTION

A court that has sentenced an offender to imprisonment more than three years may order that the sentence by way of periodic detention. Periodic detention generally involves the offender being detained in a detention weekly two-day detention periods (such as weekends), liberty the rest of the time. An offender on periodic may be required to carry out community service work participate in any activity that is conducive to the welfare or training.

HOME DETENTION

A court that has sentenced an offender to imprisonment more than 18 months may direct that the sentence way of home detention. Home detention involves the being required to stay inside his or her residence at times (for example, from 7pm to 7am). The detention monitored by an electronic device attached to the by random visits and calls to the residence.

There are a number of precautions to prevent violent potentially violent) offenders being allowed to serve by way of home detention, in order to protect both the community and those likely to share the residence the offender is detained. Home detention is only available limited range of offences. It may not be ordered for with a certain criminal history (such as a person who any time been convicted of sexual assault; or who has, the last five years, been convicted of a domestic violence offence against any person with whom the offender live if a home detention order were made).

Also, a home detention order may not be made unless is satisfied that:

•the offender is a suitable person to serve the way of home detention, and •it is appropriate in all of the circumstances that sentence be served by way of home detention, •the people who are likely to live with the offender in a relationship with the offender) have consented writing to the order, and •the offender has signed an undertaking to comply or her obligations under the order.

PAROLE

This is the period of a sentence of imprisonment that served outside prison. Strict conditions are attached on parole, such as supervision by a parole officer. part of the custodial sanction, but is also designed the offender to re-integrate into mainstream society. offender breaches any conditions of parole, the parole revoked and the offender returned to prison to serve remainder of the sentence. Parole is not strictly a type punishment but rather a variation of custody.

A court that sentences an offender to a term of imprisonment for less than three years with a non-parole period must order that the offender is to be released on parole at the end of the non-parole period. If the offender is sentenced to a term of imprisonment for more than three years with a non-parole period, the offender is eligible to apply for parole after he or she has served the non-parole part of the sentence. In deciding whether to grant parole, the Parole Board takes into account a number of factors, but must have regard to the principle that the public interest is of primary importance.

Different parole provisions apply to an offender who is classified as a ‘serious offender’. The Parole Board receives reports and advice from the Serious Offenders Review Council about the release on parole of a serious offender. The Parole Board must notify any victims of the offender who are listed in the Victims’ Register of a preliminary intention to grant parole to the offender. The victims may make submissions to the Parole Board about whether parole should be granted.

NON-CUSTODIAL PENALTIES

The non-custodial penalties available under the Crimes (Sentencing Procedure) Act 1999 are community service orders, good behaviour bonds, dismissal of the charge, conditional discharge of the offender, deferral of sentencing, suspended sentences and fines.

COMMUNITY SERVICE ORDERS

A court may sentence an offender to community service work if the offender undertakes to comply with the order and if the offender is assessed as suitable for community service work by the Probation and Parole Service. The maximum number of hours of community service that may be ordered is 500. The kind of community service work to be performed is determined by the probation and parole officer supervising the offender. The court making the community service order may recommend that the community service work to be performed should include the removal or obliteration of graffiti and the restoration of buildings, vehicles etc following the removal or obliteration of graffiti.

GOOD BEHAVIOUR BONDS

A court may make an order directing an offender to enter into a good behaviour bond for a term of up to five years. A person under a good behaviour bond must comply with the conditions of the bond imposed by the court, must be of good behaviour and must keep the court informed of any changes in the person’s residential address. If the person doesn’t enter into the bond as required, the court may re-sentence the offender for the original offence.

DISMISSAL OF CHARGE

If a court finds an offender guilty the court may, without recording a conviction against the offender, order that the charge against the person be dismissed. Even though the person is not convicted, the court may order the person to compensate the victim under the Victims Compensation Act 1996 or make other restitution. Dismissal of charge is generally by the courts for trivial offences, or where the age, character, prior criminal record or mental condition of the offender indicates that only a nominal sentence should be imposed.

CONDITIONAL DISCHARGE

If a court finds an offender guilty the court may, without recording a conviction against the offender, discharge offender on condition that he or she enter into a good behaviour bond. If the offender breaches the bond, the court may convict and sentence the offender for the original offence.

DEFERRAL OF SENTENCING

A court that convicts an offender may adjourn the case grant conditional bail to the offender for the purpose assessing the offender’s capacity to undergo rehabilitation (such as a drug or alcohol program or finding employment). The case can be adjourned for up to 12 months. When proceedings are recommenced, the court can, taking into account the outcome of the rehabilitation, impose no or sentence the offender for the original offence.

SUSPENDED SENTENCE

A court that imposes a sentence of up to two years imprisonment on an offender may make an order suspending execution of the sentence for up to two years, and directing that the offender be released from custody on condition the offender enters into a good behaviour bond. If the breaches the good behaviour bond, the court may revoke bond and the offender must serve the sentence of imprisonment originally imposed.

FINES

A court may impose a monetary penalty on an offender of, or in addition to any other penalty. Fines are the most common form of penalty. The maximum fine that can imposed for an offence is generally set in the legislation creating the offence, and is usually expressed in ‘penalty units’. The amount of a penalty unit is set by section Crimes (Sentencing Procedure) Act 1999; currently it is For example, if the maximum penalty for an offence is penalty units, the heaviest sentence that may be imposed fine of $110 000.

The court is required to take into account the offender’s to pay when determining the amount of a fine (Fines s 6) If a fine is not paid, the driver’s licence and vehicle registration of the fine defaulter can be cancelled. If remains unpaid (or the fine defaulter does not have a licence or motor vehicle), the fine defaulter’s property seized, or payment of the fine from the defaulter’s wages salary can be arranged without the defaulter’s consent. If the fine still remains unpaid, a community service order be imposed on the defaulter. If the defaulter does not with the community service order, the defaulter can be imprisoned (but may be able to serve the sentence by periodic detention).

CASE STUDY

The option of deferring a sentence is set out in the Crimes (Sentencing Procedure) Act 1999. Before that Act was passed, there was no legislation providing for such deferred sentences. Instead, the courts relied on their general powers to adjourn proceedings and to grant bonds. These deferred sentences were known as ‘Griffiths bonds’, after the case of Griffiths v R (1977) 137 CLR which confirmed the court’s powers make such orders. Griffiths was charged with offences of breaking and entering. He pleaded guilty and was committed for sentencing by the District Court. At the sentencing hearing the judge adjourned the determination of a sentence for twelve months and allowed Griffiths to be released on condition that he enter into a bond to be good behaviour until that date. The Attorney General appealed to the Court of Criminal Appeal on the ground that the sentence was inadequate. The Court of Criminal Appeal imposed a sentence of imprisonment for six years. Griffiths applied for special leave to appeal to the High Court against the decision the Court of Criminal Appeal. The High Court discussed the powers of courts to grant good behaviour bonds without actually imposing a sentence, and ultimately decided that the Attorney General did not have the power to appeal against the decision of the District Court judge. The Crimes (Sentencing Procedure) Act 1999 has clarified the court’s powers to defer sentencing and has given them a place in the legislative hierarchy of sentencing options.

OTHER WAYS OF DEALING WITH OFFENDERS

The process of convicting and sentencing offenders through the courts is often time-consuming and expensive for the Government as well as defendants. To limit demands on the courts and on persons accused of relatively minor crimes, a system of infringement notices (often called ‘tickets’) has been developed. Infringement notices are used for a number of traffic offences, and other offences such as littering. These notices are issued on-the-spot and impose a fixed monetary penalty on the person. This fixed amount is usually substantially less than the maximum penalty for the offence.

A person who pays the fine in the infringement notice does not have to go to court. Alternatively, a person may decide the infringement notice is unjustified and may challenge infringement notice in court, but runs the risk that the court may decide that the person is guilty and that a more severe penalty than the fixed amount should be imposed. Unpaid infringement notices are dealt with in the same way as unpaid fines. For traffic offences, licence suspensions and disqualifications can also be imposed in addition to a fine or other type of sentence.

There are special options for dealing with juvenile offenders, to avoid drawing children and young persons into the criminal justice system. For example, the police may give a juvenile offender a formal caution, instead of charging him or her with an offence. Another option is to hold a youth conference involving the young person’s family, the victim, and officers from the Department of Juvenile Justice. (For more information, see the Juvenile Justice Hot Topics).

RESTORATIVE JUSTICE

This involves dealing with offenders by bringing them together with their victim to reach a mutual agreement about ways of repairing the harm done by the offender, and to give the offender an understanding of the effects of the crime. Youth conferencing is an example of the concept of restorative justice. The Department of Corrective Services is establishing a restorative justice unit for adult offenders, to commence in 2000.5

COMPENSATION ORDERS

A court can order a person convicted of an offence to make a payment to another person by way of compensation for any injury or loss sustained by reason of the offence: Victims Support and Rehabilitation Act 1996.

That Act also provides that a victim of crime can in some circumstances apply for monetary compensation from the Victims Compensation Fund kept by the State Government. The Government can take steps to recover the amount of compensation paid to the victim from the offender. There are strict limits on the amount of compensation available (for example, the maximum amount of compensation payable to a victim of an act of violence is $50 000).

MENTALLY ILL OFFENDERS

The Mental Health (Criminal Procedure) Act 1990 provides for mentally ill people who are charged with criminal offences. Such a person may be found by a court to be not fit to stand trial. In that case, the court holds a special hearing to determine whether or not the accused person committed the offence. If the person is found to have committed the offence and the court would, if the person were fit to stand trial, have imposed a sentence of a term of imprisonment, the court is to set an equivalent ‘limiting term’. A limiting term may be served in a hospital, if the person is suffering from a mental illness, or the person may elect to serve the term in another place.

Other sentencing options include dismissal of charge and discharge into the care of a responsible person. The court may impose conditions on the person being discharged or on the responsible person (such as a condition that the person must continue to take specified medication and receive specified psychiatric treatment).

Appeals

The discretion given to courts in sentencing matters means that there is scope for courts to make mistakes. Appeal procedures exist to allow people convicted of an offence,who think that the trial court has made a mistake, to have a higher court review the case. Appeals provide a means for the higher courts to supervise and regulate the exercise of sentencing discretion by the courts, and to promote consistency in sentencing principles and practices.

There are two kinds of appeals - appeals against conviction (where the convicted person argues that he or she is innocent and was wrongly found guilty) and appeals against sentence (where the person accepts that he or she is guilty but argues that the sentence imposed is too severe).

The Director of Public Prosecutions or the Attorney General can appeal against the leniency of a sentence imposed by a court, but they cannot appeal against a jury’s verdict of not guilty.

Appeal procedures in criminal matters are complex. overview, decisions in the Local Courts can way of rehearing in the Local Court or the District that the matter is heard again as if the original had never dealt with it.

On appeal from the Local Court or the District higher courts (the Supreme Court or the Court Appeal), the higher courts do not rehear the examine the original decision to determine error of law by the magistrate or judge.

An appeal can be made from a decision of the Criminal Appeal to the High Court, but only decides to hear the appeal (‘grants leave to there is an important question of law involved. therefore no automatic right to appeal to the criminal cases.

The Acts governing criminal appeals are the and the Criminal Appeal Act 1912.


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