Sentencing ACT

The principles and procedures relating to sentencing for criminal offences in the ACT are substantially set out in the Crimes (Sentencing) Act 2005 (ACT) (“the Sentencing Act”).

The purposes of sentencing in the ACT are set out at section 7 of the Sentencing Act. The listed purposes are as follows:

1. To ensure that the offender is adequately punished;
2. To prevent crime by deterring the offender and other people from committed the same or similar offences;
3. To protect the community from the offender;
4. To promote rehabilitation of the offender;
5. To make the offender accountable for his or her actions;
6. To denounce the conduct of the offender;
7. To recognize the harm done to the victim of the crime and the community.

Courts can generally impose the following penalties at sentence, listed in order of increasing severity:

1. Unconditional No Conviction Order (Section 17 Order);
2. No Conviction Order conditional on a Good Behaviour Order (GBO);
3. Fine;
4. Good Behaviour Order;
5. Community Service Hours;
6. Suspended sentence of imprisonment;
7. Intensive Corrections Order (ICO);
8. Full-time imprisonment.

A Good Behaviour Order (GBO) represents an undertaking (promise), signed by an offender, not to commit a further offence in set period, as an alternative to being sentenced to a more serious penalty such as imprisonment. A GBO can also set additional conditions beyond this, such as restrictions about not driving a motor vehicle (which is separate to a licence disqualification order), making a payment to charity or completing certain types of treatment

A GBO can include a condition that an offender accept the supervision of ACT Corrective Services and follow their reasonable directions to attend to certain tasks. It can also include a condition that an offender give security for an amount (such as $1,000.00), a rehabilitation condition, a probation treatment or anything else the court considers appropriate (see s13 of the Sentencing Act).

Sentences of imprisonment can be in the form of a fully suspended sentence, Intensive Corrections Order or by way of a sentence that includes a portion of full-time imprisonment or a non-parole period. If an offender commits an offence, which carries an offence punishable by more than 1 year imprisonment or more, during the term of a Good Behaviour Order that is attached to a suspended sentence of imprisonment, the court must either impose the sentence as full-time imprisonment or resentence the offender. The Court cannot simply decline to take any action in relation to a breach of the GBO in these circumstances.

An Intensive Corrections Order can be understood as a more strict version of a suspended sentence of imprisonment. It has the same effect of technically being a sentence imprisonment  without ordinarily requiring an offender to actually spend any time in a Correctional Centre (in the ACT this is the Alexander Maconochie Centre), but the conditions that have to be complied with to avoid any time in goal are stricter than a suspended sentence. Some less serious breaches of Intensive Corrections Orders, such as testing positive to an illicit drug in a random drug test, can result in the ACT Sentence Administration Board setting penalties for an offender that include short sentences of imprisonment for 3 or 7 days. Significant breaches of an ICO, such as committing a serious offence during the set period of the ICO, can result in the court cancelling an ICO and instead imposing full-time imprisonment.

A custodial sentence will usually involve a total head sentence (for example, 3 years), with a portion of that sentence being by way of full-time imprisonment (or non-parole period) and the balance suspended or with the possibility of parole (for example, 18 months out of the total 3 year head sentence).

The courts also have the power to make a reparation order under section 19 of the Sentencing Act. This may be justified where the DPP has set out with sufficient evidence that a certain justifiable amount of damages has been incurred by a victim as a direct consequence of the offence.

In sentencing an offender at a sentence hearing, a court must also take account of a range of considerations (section 33(1) of the Sentencing Act):

1. the nature and circumstances of the offence;
2. any other offences required or allowed to be taken into account;
3. whether the offences forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character;
4. whether the personal circumstances of any victim of the offence were known to the offender when the offence was committed;
5. any injury, loss or damage resulting from the offence;
6. the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
7. whether the victim was a pregnant woman or a vulnerable person (disability or mental impairment);
8. any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence;
9. the degree of responsibility of the offender for the commission of the offence;
10. a plea of guilty by the offender;
11. any assistance by the defence in the administration of justice;
12. any assistance by the offender to law enforcement authorities;
13. the cultural background, character, antecedents, age and physical or mental condition of the offender;
14. the financial circumstances of the offender;
15. the probably effect that any sentence or order under consideration would have on any o the offender’s family or dependants;
16. whether the offender was affected by alcohol or drugs when the offence was committed and how they consumed the substance;
17. the degree to which the offence was the result of provocation, duress or entrapment;
18. whether the recording of a conviction or the imposition of a another particular type of penalty would be likely to cause particular hardship to the offender;
19. if the sentence follows a jury trial, any recommendation for mercy by a jury;
20. whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;
21. whether the offender was in a position of trust or authority when the offence was committed;
22. the reasons why an offender committed an offence;
23. whether an offender has demonstrated remorse;
24. whether an offender has complied with a Court Alcohol and Drug Assessment Service (CADSA) order;
25. whether an offender has participated in restorative justice;
26. whether an offender has paid an equivalent infringement notice penalty already for the relevant offence.

A defendant is entitled to obtain and seek to tender at sentencing a range of material that may be relied on to provide information about their background and subjective circumstances or addressing other issues that may be mitigating. This material can include a defendant’s apology letter to the court, character references, a treatment letter, medical records or a forensic psychological or psychiatric report.

A prosecutor is entitled to seek to tender a victim impact statement (under Part 4.3 of the Act), prepared by a victim of an offence. This can be read out in court by the victim or prosecutor or simply tendered for the magistrate or judge to read at sentencing. A prosecutor may also be entitled to tender other material such as medical records relating to a victim or photographs of injuries or video footage of the relevant offence.