Sentence and penalty options available to courts if convicted of a criminal offence

A plethora of crimes

Murder. Bigamy. Robbery. Bushfires. Terrorism. Domestic violence. Computer offences. Concealing the birth of a child. Fraud. Rape. The list of criminal offences for which a person may be convicted in any Australian jurisdiction is extensive.  It covers a range of crimes which vary in terms of their severity and how frequently they are committed.

In turn, to enable the the punishment to fit the crime, there needs to be a range of penalties and sentencing options available to a court to respond to this plethora of criminal offences.  While a sentence can be defined as a judgment given by the court, a penalty can be described as a punishment, and often takes the form of a fine or monetary payment.  A series of State and Commonwealth Acts direct the judge in her of his determination of the appropriate penalty or sentence. In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) is of particular importance.

Imprisonment

Under Division One of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), the court is entitled to sentence a criminal offender to a term of imprisonment.  Indeed, when someone asks the question “what penalties are available to a court if a person is convicted of a criminal offence?”, imprisonment is likely to be the first response of many people. 

However it is interesting to note that the 1983 case of R v Palliaer found that the correct approach to imprisonment is to first consider whether there is any other appropriate alternative.  This sentiment was later embodied in statute law throughout Australia.  In NSW, s 5 of the Act states that a court must not sentence an offender to imprisonment unless it has considered all of the alternatives, and has reached the conclusion that there is no other appropriate penalty. If a judge chooses to impose a prison sentence of less that six months, he or she is obligated to provide an explanation for this sentence.

Periodic and home detention

In NSW, detention comes in a variety of forms.  If a sentence has been imposed for less than three years, a person may be allowed to report to jail for only two days per week, either on the weekend or during the week. The conditions of imprisonment in the jail are identical to full-time imprisonment but the person comes and goes according to specific rules.  This is known as periodic detention.

Alternately, home detention is a possibility in the Northern Territory, New South Wales and Victoria whereas in Queensland, South Australia and Western Australia, a final period of imprisonment may be served in a prisoner’s home.  Both of these options may be available to prisoners in the Australian Capital Territory.  Indeed in New South Wales, if a sentence term is no longer than 18 months, a convicted offender may be able to serve their term of imprisonment in their own home, supervised by an officer of the Probation and Parole service.

Good behaviour, community service, fines and orders

Not all sentences involve a form of detention. A more favorable outcome for a criminal offender would be if the court releases the person on a good behaviour bond.  This means that a person must show good behaviour for a fixed period of time, that cannot be longer than five years.  Another option is to sentence a person to up to 500 hours of community service. Both in the case of a bond and community service, supervision by an officer of the Probation and Parole service may be required. Also, if a person breaches their obligations under these sentences, they will return to the courtroom and may be faced with the imposition of an alternate penalty.

If a person is sentenced to a good behaviour bond, they might also be fined by the court.  A fine is often used as a means to deal with a less serious criminal offence, in combination with another sentence or in and of itself.  The maximum amount for a fine is stated in the legislation.  In most cases, it is referred to in terms of penalty units. To determine the monetary equivalent, the number of penalty units can be multiplied by $110.00.

The range of penalties and sentences available to courts is an ongoing subject of law reform. In mid-2002, new penalties known as non association and place restriction orders were introduced in an attempt to deal with gang violence. A non association order stops a person from associating with a specified person for a specified period of time. A place restriction order prevents a person from visiting a specified place or district for a specified period of time.

What penalty or sentence is appropriate?

The court will of course be influenced by a number of factors in determining its sentence for a criminal offender. Firstly, it is necessary to ask whether the court is primarily influenced in a particular case by the need to punish, deter, rehabilitate, denounce or incapacitate? Imprisonment may best address a need to incapacitate whereas community service or a good behaviour bond may be appropriate for rehabilitation. Secondly, the court will need to take a variety of circumstances into account, for example aggravating factors and mitigating circumstances. 

Ultimately, it is interesting to note that in many cases in Australia, courts impose a sentence at the lower end of the sentencing scale. The significant impact of sentencing is recognised such that if a judge wishes to impose a maximum sentence, he or she must point to specific reasons as to why the crime committed was in its worst conceivable form.