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See also: Plea bargain, Judicial discretion, and Mandatory sentencing

Sentence Reduction Programs - Australia

The balance between law and justice

Sentence reduction programs are alternative options that the court may impose during the process of sentencing. Programs run in Australia through the justice system are imposed to better understand the contextual background that surrounds the defendant with a higher focus on rehabilitation rather than retribution. There are six states and two territories in Australia, each of which provides for a seperate Act of legislation governing the sentencing procedures for that jurisdiction.

Category:Crime templates Category:Law navigational boxes

Background

The law is an instrument which is binding on all people that fall within a set region - shaping the society with obligations to obey such imposed laws. These laws are divided and imposed upon between three seperate government institutions - legislature, the executive and the judiciary (formally known as the separation of powers). It is through the separation of powers that a distinction can be drawn between the parliament, the executive and the courts and the various roles in which each play.

It is the parliament which passes legislation - being the most authoritative form of law in Australia, and the courts which are then entrusted to interpret the words used in the legislation and apply their interpretation to cases which come before them. The ability for courts to interpret legislation is limited to the impositions and boundaries in which the legislation imposes - such as mandatory sentencing and sentencing guidelines. It is the relationship between such sentencing boundaries imposed through legislation and judicial discretion that form the basis of sentencing and sentence reduction programs.

Sentencing through legislation

Austrian Capital Territory

The Australian Capital Territory's legislation governing sentencing is the Crimes (Sentencing) Act 2005 (ACT). The Act equips the Court with the power to make sentences of imprisonment, non-custodial sentences, non-association and place restriction orders and any combination of the aforementioned. The Act provides the following powers to reduce penalties:

   " (1)     If, under a territory law, an offender is liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a stated term.

    (2)     If, under a territory law, an offender is liable to imprisonment for a stated term, a court may nevertheless impose a sentence of imprisonment for a lesser term.

    (3)     If, under a territory law, an offender is liable to a fine of a stated amount, a court may nevertheless make a fine order for a lesser amount."

Factors that are taken into consideration when considering reduced penalties include sexual offences against children, guilty plea, assistance in administration of justice, assistance to law enforcement authorities and victim impact statements. Additionally, intensive corrective orders and good behaviour order programs may be made, including community service and rehabilitation.

A different approach in sentencing is made when it comes to the sentencing of young offenders. Section 113C of the Crimes (Sentencing) Act 2005 (ACT) states that "a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes." Programs that young offenders may be enlisted into include good behaviour community service, education and training programs (promoting exposure to further education) and accommodation orders (requiring the offender to live at a specific place or with a specific person).

New South Wales

The legislation governing the sentencing in New South Wales is the Crimes (Sentencing Procedure) Act 1999 (NSW). The Act provides power for both custodial sentences and non-custodial sentences, including community correction orders, rehabilitation programs and participation in intervention programs. The power to reduce penalties is given within section 21 of the Act whereby:

"(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.

(2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term.

(3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount."

Factors considered when considering such a sentence reduction include guilty pleas, the offender facilitating the administration of justice, the offender providing assistance to law enforcement authorities, sentencing for child sex offences and victim impact statements.

Section 40 of the Act reiterates the principle of court discretion and provides "nothing in this division: (a) limits any power or jurisdiction of the Court to give a guideline judgment that the Court has apart from this Division, or (b) requires the Court to give any guideline judgment under this Division if it considers it inappropriate to do so." Although this section of the Act is only binding to the New South Wales jurisdiction, it is important to note the principal of "court discretion" when reading other sentencing legislation, as although the other jurisdictions do not strictly provide such a principle within their legislation, said principle is still binding within the common law of each jurisdiction.

Section 42A of the act states "a guideline that is expressed to be contained in a guideline judgment: (a) is in addition to any other matter that is required to be taken into account under division 1 of part 3, and (b) does not limit or derogate from any such requirement."

Northern Territory

The Northern Territory is bound by the Sentencing Act 1995 (NT) in reference to their sentencing procedures. Section 5 of the Act illustrates the purposes for which sentences may be imposed on an offender - including, to punish the offender, to rehabilitate the offender, to discourage the offender or other persons from committing the same or a similar offence and to protect the Territory community from the offender. In considering the sentence, the court considers the offender's character, age, intellectual capacity, any assistance given to law enforcement agencies and guilt pleas.

Section 100 of the Act states that "where a court may attach a condition to an order or require an offender to given an undertaking, the court may, as a condition of the order or as part of the undertaking, require an offender to undertake a prescribed treatment program." The court may order a range of punishments including community work programs under section 33A of the Act; home detention programs under section 44 of the Act; and make an order for the offender to attend a perpetrators program under section 77H-78N. Section 101 of the Act however provides that "a court shall not make an order which has attached to it conditions or which requires an offender to give an undertaking unless the conditions are explained to the offender... and the offender consents to - (a) the order being made and to the conditions being attached; or (b) the conditions being included in the undertaking, as the case may be."

Queensland

Queensland sentencing is governed by the Penalties and Sentences Act 1992 (QLD). Section 9 of the Act outlines the purposes of sentencing and include to punish the offender, to rehabilitate the offender, to discourage the offender or other persons from committing the same or a similar offence and to protect the Queensland community from the offender. Section 9 also provides that "a sentence of imprisonment should only be imposed as a last resort" and " a sentence that allows the offender to stay in the community is preferable." Such a preference does not however defer from the court taking into consideration the circumstances surrounding the offence and the seriousness of the offence. Optional program orders include probation orders under section 91 of the Act; a community service order under section 100; a graffiti removal order for convicted graffiti offenders under section 110A; and an order for intensive correction under section 112. Additionally, section 151C of the Act provides specific programs in relation to the treatment of drug and alcohol problems. This section provides that "the purpose of making a drug and alcohol treatment order for an offender is to— (a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented, integrated treatment regime; and (b) reduce the offender’s severe substance use disorder; and (c) reduce the level of criminal activity associated with the offender’s severe substance use disorder; and (d) reduce the health risks to the offender that are associated with the offender’s severe substance use disorder; and (e) assist with the offender’s integration into the community."

South Australia

South Australia's sentencing procedures is governed by the Sentencing Act 2017 (SA). Section 3 of the Act provides that "the primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general)." Section 4 of the Act provides that "the secondary purposes for sentencing a defendant for an offence are as follows:

(a) to ensure that the defendant—

     (i) is punished for the offending behaviour; and

     (ii) is held accountable to the community for the offending behaviour;

(b) to publicly denounce the offending behaviour;

(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;

(d) to deter the defendant and others in the community from committing offences;

(e) to promote the rehabilitation of the defendant."

Section 23 of the Act provides that "if a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may (a)         without recording a conviction—dismiss the charge; or (b) on recording a conviction—discharge the defendant without penalty."

The court may impose alternate methods of punishment including non-association or place restrictions under section 27, rehabilitation programs under section 29, home detention under section 69 and intensive correction orders under section 79.

Section 41 of the Act provides the method in which the court must follow in providing sentence reductions and states that the court must first determine the sentence that the court would ordinarily apply (but for any mitigating factors - such as guilty pleas) and then determine the maximum percentage that is available to be reduced in accordance with those mitigating factors. The court must then determine the percentage in which the court deems appropriate in the particular case and then apply that percentage to the sentence that the ordinary person convicted of said offence would have received.

Tasmania

The governing sentencing legislation in Tasmania is the Sentencing Act 1997 (TAS). The purpose of the Act is outlined in section 3, whereby, to promote the protection of the community, to help promote respect for the law, to help promote understanding of sentencing practices and procedures and to recognise the interests of victims of offences. Section 7 of the Act lists the methods of orders that the court may make in relation to sentencing and includes imprisonment, drug treatment programs, home detention, community correction and rehabilitation programs. Additionally, section 32 outlines the possibility of educational programs and states that "if an offender who is subject to a community service order attends an educational or other program in accordance with the directions of a probation officer, the time that the offender spends attending that program is taken to be performance of community service under the order." This would - by effect - also to be interpreted to be used in conjunction with any sentencing discounts imposed on the case.

Victoria

Sentencing in Victoria is governed by the Sentencing Act 1991 (VIC). Section 1 of the act provides that the purpose of the Act is "to prevent crime and promote respect for the law. Section 5 of the Act provides that the purpose for which a sentence is to be imposed is "to punish the offender to an extent and in a manner which is just in all of the circumstances." Some of the programs in which the courts may impose include a re-integration program under section 18N; drug treatment programs under section 18ZC; community protection programs under section 36 and rehabilitation programs under section 48D. Additionally to the aforementioned programs, the court may impose specific conditions of release or reductions on sentences, including a curfew condition under section 48I; alcohol exclusion condition under section 48J; bond condition under section 48JA; and judicial monitoring condition under section 48K.

Section 70 of the Act outlines the purposes for which such orders of condition and programs are made by the court and include rehabilitating the offender whilst taking responsibility for the trivial nature of the offence committed. This also provides the offender to demonstrate his or her remorse in a manner agreed to by the court and allows the courts the freedom necessary in considering extenuating factors that would render the ordinary punishment inappropriate.

Western Australia

Western Australia's sentencing procedures are governed by the Sentencing Act 1995 (WA). Section 6 of the Act sets out the principles of sentencing in accordance with that Act and states that "a sentence imposed on an offender must be commensurate with the seriousness of the offence." This section also outlines that "the seriousness of an offence must be determined by taking into account - (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors." Finally, this section provides that "a court must not impose a sentence of imprisonment on an offender unless it decides that - (a) the seriousness of the offence is such that only imprisonment can be justified; or (b) the protection of the community requires it."

Programs which the court may impose to substitute imprisonment include supervision programs through section 33F, curfew requirements through section 33H and community service programs through section 67. "The purpose of a programme requirement is (a) to allow for any personal factors which contributed to the offender’s criminal behaviour to be assessed; and (b) to provide an opportunity for the offender to recognise, to take steps to control and, if necessary, to receive appropriate treatment for those factors." Programs may require the offender to undergo assessment by a medical practitioner and if appropriate seek appropriate treatment, including drug and alcohol abuse treatments, attending educational, vocational, or personal development programs.