Sentencing

• Responsible for sentencing- parliament, judge/magistrate and government department agencies
• Relevant legislation: Sentencing Act 1997 (Tas)- sets out principles and powers of the court to impose criminal sanctions- Section 3 outline the purpose of sentencing. S3b promotes protection of the community as a primary consideration in sentencing.

  Section 7- a summary of all the sentences options available to Tas court e.g., S7(a) order offender to imprisonment
• Aims of punishment:Incapacitation- imprisonment

  2- Retribution (just punishment)- to punish the offender in a way that is just in all circumstances

  3-Rehabilitation- S3(e)(ii)- change offenders personality, belief, attitude, habits, outlook or skill to stop reoffending

  4-   Denunciation- S3(e)(iii)- denounce, condemn or censure the offending conduct

  5- Deterrence- S3(e)(i)- to deter offender or others from committing crime 
• Judicial discretion

  Sentencing decisions are not automatic - ensures court imposes sentence that is most appropriate to each case
• Sentencing decision

  1. Judge/magistrate chooses type of sentence and the length

  2. Based on a number of factors
• Sentencing factors

  • Nature of the crime and circumstances of the offender and impact on victim
  • Background and character
• Culpability


  Extent to which offender is held accountable for the offence that was committed
• Sentencing principles

  Set of principles that help judge/magistrate decide on what sentence to impose
• Parsimony


  • Sentence imposed must be no more severe than needed to achieve the purpose of justice
• Proportionality


  • The sentence must fit the seriousness of the crime and there should be no excessive punishment
• Parity


  • Co-offenders who are jointly involved in the same offence receive similar sentences- requires it to be consistent but not always receive same sentence depending on culpability
• Totality


  • When offender faces more than one sentence, total sentence must be just and appropriate to offender's overall criminal behaviour
• Crushing sentence


  • Must avoid imposing sentence that is so severe that it crushes any hope of the offender- unless it is just and appropriate
• Imprisonment

  Restricting a person's freedom by confining them in prison. In Tasmania- Risdon prison in Hobart for men and women. Prison being the most severe sentence in Tas and treated as a last resort- only imposed if no other sentence is appropriate
• Maximum penalty in Tas under Criminal Code is 21 years- other than murder which is maximum life
• Relative legislation: Sentencing Act 1997 (Tas) under S7(a)- judge/magistrate has power to sentence an offender to a term of imprisonment
• Non-parole period


  Rules when court must set a non-parole period, depending on the length of sentence. Non-parole period is the minimum time the offender must spend in custody before they can apply for release on parole- not automatic can only be let out if finished non-parole period and parole board considered case and granted release
• Drug Treatment Order (DTO)


  A custodial sentence- being a prison sentence which is suspended so offenders can have treatment in the community for their addiction
• Eligibility for DTO

  • Offender had shown a history of illicit drug use and that the drug use contributed to their offending. But are not available to sexual offences, or offences leading to major body harm- physical/psychological
• DTO has 2 parts

  1. Custodial: sentence of imprisonment imposed- time in prison is not served by offender unless court activates the custodial part- orders the offender to spend time in prison

  2. Treatment and supervision: consists of core conditions- participation in treatment programs, reporting to court or correction staff, attending court as required, not associating with specific people and more. A range of consequences and rewards encourage offenders to complete DTO. Offenders who breach conditions- may have additional conditions imposed and or imprisoned
• May 16, 2024- bill introduced by Tas parliament to amend DTO to include alcohol treatment order. Bill proposed to amend part 3a of Sentencing Act to make treatment order where the offender has shown history or alcohol dependence or linked to alcohol dependence. Bill is called Sentencing Amendment (alcohol treatment order) bill 2024
• a sentence can only be imposed when the offender is found guilty or pleads guilty to a criminal offence
• just punishment- not working in Ashly commission of inquire into child sexual abuse in institutional setting. COI recommend shut down August 3 closing youth DC. further 62% will commit a further significate offence 2 years after release
• Incapacitation- chief justice Alan Blow commented inhumane conditions of solitary saying prisoners only allowed out 1 hour a day. over 50% suffer from mental illness and disability
• Rehabilitation- productivity commission states that in Tas 62% of prisoner will be back in prison in 2 years
• deterrence- no specific or general deterrence as 62% end back in prison after 2 years
• Denunciation- salvation army estimates 750 adults are released a year 54% are homeless and 78% unemployed. lots of stigma and shame after going to prison-works to well
• Just punishment DTO- is a just punishment addresses the rout of the problem in therapeutic way
• Incapacitation DTO- condition of having DTO puts enough restrictions on offender without incapacitant them. i.e., where they live, who they can see, having to go to court. Avoids $224000 cost per year per inmate at risdin
• Rehabilitation DTO- justice Brett says alternative to prison and emphasizes on the rehabilitation of the offender. Able to rebuild ties with family and community 56.7% will not reoffend
• Deterrence DTO- deters from reoffending by 56.7%
• Denunciation DTO- effective because avoids the denunciation and shame/stigma and labels of being in prison