Examine the purposes of punishment, the range of sentencing options, the role of victims in sentencing, and the issue of consistency

What this dot point is asking

NESA wants you to know what sentencing is for, what sentencing options are available in NSW, how victims participate, and how effective sentencing is at achieving its purposes. Expect a Section II 5-8 mark question or a paragraph in a Section II extended response.

The answer

The statutory purposes

The Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A enumerates the purposes of sentencing:

1. Retribution. To ensure the offender is adequately punished.
2. Specific and general deterrence. To prevent crime by deterring the offender and others.
3. Incapacitation. To protect the community from the offender.
4. Rehabilitation. To promote the offender's rehabilitation.
5. Denunciation. To denounce the offender's conduct.
6. Restoration. To recognise the harm done to the victim and the community.

In practice the sentencing judge must weigh competing purposes. Where they conflict, the judge has discretion guided by the principle of proportionality (the sentence must fit the crime) and the totality principle (the total sentence must not be crushing).

The range of sentencing options

In NSW, the menu (in approximate order of severity) is:

• Dismissal under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Charge proven but no conviction recorded.
• Conditional release order (CRO). Section 9. With or without conviction. Replaced "good behaviour bonds" in 2018.
• Fine. Section 6. Capped by the offence-specific maximum.
• Community correction order (CCO). Section 8. Sentences of up to 3 years. Introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). Can include supervision, community service work, curfew and other conditions.
• Intensive correction order (ICO). Section 7. Sentences of up to 2 years served in the community with supervision and conditions.
• Imprisonment. Section 5. The court must not impose imprisonment unless no other sentence is appropriate.

The Act also provides for standard non-parole periods under Division 1A (s 54A-54D), which anchor sentencing for the most serious offences. Standard non-parole periods can be departed from where reasons are given.

Victim impact statements

Victim impact statements are admissible under s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They allow the victim or family member to describe the harm caused. They inform the sentencing judge but do not determine the sentence (R v Slack (2004) 58 NSWLR 552).

Consistency in sentencing

The Judicial Commission of NSW publishes sentencing statistics that help promote consistency. The NSW Sentencing Council reviews sentencing practice and recommends reforms. Despite these measures, public and academic debate over sentencing consistency continues, particularly for sexual offences and domestic violence offences.

Recent NSW reforms

• Sentencing Options Act 2017. Replaced suspended sentences, home detention and community service orders with CCOs and ICOs.
• Youth bail reforms 2022. Tightened bail for young offenders charged with offences while on bail.
• Domestic Abuse Offence 2022. Section 54D of the Crimes Act 1900 (NSW) inserted a coercive control offence (Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)).