Sentencing is the process of determining and applying an appropriate penalty for an offender’s actions. There are purposes of sentencing that aim to guide how a sentence is applied. These are well established at common law, and supported in South Australia in the Sentencing Act 2017 (SA). The primary sentencing purpose, outlined in section 3 of this Act, is to protect the safety of the community. Other secondary purposes detailed in this act include punishment, deterrence, and rehabilitation.
The courts decide sentences by looking at many factors. Most importantly, precedent is assessed by looking at sentences given for previous similar cases. The laws governing the particular offence which sets out the maximum penalty is also a key source for determining a sentence. In South Australia, we are governed by the Sentencing Act 2017 (SA). Depending on the circumstances surrounding the offending, other influences toward sentencing include sentence discount regimes, specialist reports, and victim impact statements, which informs the sentencing judge on the impact of the crime on the victim.
Categories of Sentencing
Traditional categories of sentencing, such as deterrence and rehabilitation, are forward looking and seek to benefit society into the future. It looks beyond the offending itself to its social context, working together to protect society and individuals from a dangerous person, deter future crimes, and reduce the rates of reoffending.
There are two approaches to deterrence – general and specific. General deterrence attempts to deter all people from committing a type of crime, by imposing a significant penalty to deter people from committing the act. For example, there are significant fines for breaking road laws such as speeding, to try to stop people from doing it. Specific deterrence, on the other hand, aims to prevent a specific individual from re-offending. For example, a robber might be sentenced to a few years in prison, which aims to deter them from re-offending when they get out.
Rehabilitation aims to provide help and support to offenders to try and change their behaviour and attitudes through gaining skills and education. It helps offenders to reintegrate into society if they have served a prison sentence. Defined in R v Pogson (2012), it helps offenders re-establish themselves in the community with a conscious determination to renounce their wrongdoing and become an honourable law abiding citizen. Rehabilitation is commonly used for drug offences; for example, offenders are often sentenced to some sort of drug and alcohol program.
In contrast to these two aims, retribution is a backwards-looking aim of sentencing because it imposes penalties based on past conduct, penalising offenders for breaking the law. It is closely aligned with principles of vengeance, reflected in modern ‘tough on crime’ policy frameworks.
Sometimes, these purposes can conflict with one another. According to the High Court in Veen v R (No 2) (1988), the purposes are intended to be guideposts for determining the appropriate sentence, and sometimes they do point in different directions. For example, rehabilitation might point the sentence to be lighter, while deterrence might encourage a longer sentence.
The sentencing judge must also consider precedent and proportionality, meaning the sentence must fit the crime. Some offences give different weighting to different purposes, and other considerations surrounding the offender’s reason for offending are also relevant.
If you are charged with a criminal offence, it is very important that you get a lawyer as early as possible. Sentencing principles are complex and there are many technical considerations that the court will take into the account during the sentencing process. Lawyers can make submissions to the court that put your “best foot forward” in terms of your personal circumstances, the circumstances of your offending, and other relevant considerations the court should know about. There may also be sentence discounts regimes applicable to your circumstances, and a lawyer will be able to identify these to help you minimise a sentence imposed.
If you would like advice on a criminal law matter, please contact our office on (08) 8223 3199 to speak with our experienced criminal lawyers.