Sentence hearings are one of the most common proceedings that take place at the Local Court in New South Wales. Sentence hearings occur when an offender has either entered a plea of guilty or has been found guilty at the conclusion of a defended hearing. The Magistrate hands down a formal judgment that details the appropriate punishment or penalty for an offender whose guilt has been proven. The appropriate sentence will depend on the objective nature and seriousness of the crime(s) involved, any features about the offending conduct that may aggravate or mitigate the seriousness of the offence, any relevant subjective features that attach to the individual being sentenced., and a range of other relevant factors.
Preparing for a sentence hearing
Ahead of a sentence hearing, criminal defence lawyers will typically undertake the following steps in preparation:
- Reviewing the factsThe lawyer will consider the facts detailed in the Facts Sheet together with their clients and check that the facts don’t contain any details that are unfairly detrimental to the case or that are disputed by the client. There may also be instances where Fact Sheets omit details that would otherwise assist a client’s case. Where this arises to a significant degree, lawyers may attempt to negotiate the contents of the Facts Sheet with the police prosecutor ahead of the sentence. In cases where an agreement cannot be reached, it may be worth listing the matter for a disputed facts hearing, whereby a Magistrate would hear evidence and determine the factual dispute. In other cases, lawyers can add some further context to facts through oral submissions at the sentence hearing.
- Letters to the courtIt is usually helpful for clients to have an opportunity to provide context to the offences they are being sentenced for and this can be done by way of an apology letter to the court. An apology letter is an excellent way to express remorse and recognition of harm done to the court. Where appropriate, this can be taken into account by a sentencing Magistrate in considering the ultimate penalty to apply. Character references are often also important to the sentencing process. These are letters written to the court by family, friends or colleagues who know the defendant well and who can attest to their character and anything else of relevance.
- Reports and recordsWhere relevant, defendants may wish to have psychological or psychiatric reports prepared. Where there exists an underlying mental health issue that should be brought to the Magistrate’s attention, such reports can often assist the court in understanding offending behaviour and often have a beneficial effect on the final sentence outcome. Where a term of imprisonment is likely, the court may order the preparation of a ‘Sentence Assessment Report’ which would be prepared by Corrective Services NSW. The purpose of the reportis to assist the court to determine what sentencing options are suitable for a defendant. The reports address the defendant’s likelihood of re-offending, their general attitude towards the offending behaviour and whether the defendant may be suitable for community service work, among other considerations. Lastly, an up-to-date criminal record of the defendant is also handed up by the prosecution for the Magistrate to consider.
Procedure at Court
Upon a finding of guilt after a defended hearing or the entering a guilty plea, a matter progresses to a sentence hearing. Oftentimes this happens immediately after the conclusion of a hearing or the entering of a plea. Where the matter requires additional preparation due to its complexity, the matter may be adjourned and listed for sentence on a later date.
- Tendering materialAt the start of the sentence hearing, the prosecution will hand up the Facts Sheet and the defendant’s criminal record to the sentencing Magistrate. If the matter is proceeding to sentence after a defended hearing, then the facts will be determined based on the evidence admitted during the hearing.
Defence practitioners will then hand up a bundle of subjective material which will typically include an apology letter, character references, psychological reports and other relevant material. Where a defendant is being sentenced for a drug or alcohol related offence, defence practitioners may wish to have their clients complete certain rehabilitation and recovery programs ahead of the sentence. Evidence of attendance at these programs can serve to mitigate the ultimate sentence. Similar programs exist for various other types of offences and defendants should seek advice from their lawyers in this regard.
- Oral submissionsMagistrates will usually invite defence practitioners and then the police prosecutor to make oral submissions. Defence practitioners usually summarise the offender’s personal circumstances, prospects of rehabilitation, and relevant family and background details. They will then make submissions on what the objective seriousness of the offence is and whether features of the offending conduct should be taken into account to either aggravate or mitigate the penalty. Finally, defence practitioners will specify the appropriate sentence they estimate the court should appropriately impose.
- Decision on sentenceAfter reviewing the material handed up and hearing submissions from the defence and the prosecution, a Magistrate will make a final determination as to the penalty imposed. Whilst Magistrate’s adhere to legislation that provides guidelines and limits to the proper exercise of their powers, they are afforded certain levels of instinctive discretion. Experienced defence practitioners can be crucial in strategically preparing for sentence hearings and customising their approach to the presiding Magistrate.
Umar Ikram, Lawyer