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Sentencing

Sentencing

As part of getting a conviction, there will be punishments that will be given by the judge to punish you if you’re found guilty of a crime.

This section explains what sort of sentencing you may receive after getting a conviction.

What is sentencing?

If you have pleaded or have been found guilty of an offence, you will then be sentenced. This is where a judge looks at what you have been found guilty of and decides on an appropriate punishment for you. Sometimes the judge doesn’t get much choice, e.g. with some driving offences, the judge must disqualify you from driving for a minimum period of time except in exceptional situations. In other cases, the judge can make a number of different decisions.

What compulsory costs are there if I’m found guilty and get convicted?

Whenever you’re convicted of an offence, you have to pay an offender levy of $50 no matter what your sentence is. This money is used to help victims of crime. You might also have to pay the prosecution’s (government’s) costs of bringing the case against you. You can be made to pay court costs (generally around $130) no matter what your sentence is and even if you get a discharge without conviction.

What sort of sentencing will I get for minor offences?

Minor offences are crimes like petty theft, minor driving offences, and drunk and disorderly conduct. When a court is sentencing you for an offence, they will try to make sure that the seriousness of the penalty matches the seriousness of the offence. Sentences you are likely to get for minor offending include:

  • Diversion;
  • Discharge without conviction;
  • Conviction and Discharge;
  • Order to come up for sentence if called;
  • Reparation;
  • Fine;
  • Community service;
  • Disqualification/suspension from driving;
  • Confiscation of motor vehicle.

What is Discharge without Conviction?

On rare occasions, the court can give a discharge without conviction even though you have pleaded or have been found guilty. The court still thinks you’re guilty, but the sentence has a similar effect to being found not guilty and you won’t get a conviction on your record. The court can still order you to complete conditions, like pay compensation to the victim.

A discharge without conviction is only offered if the court considers that a conviction would have extreme consequences for you personally that would be out of proportion to the crime that you committed. You or your lawyer must apply for this, discharge without conviction is not automatically given at sentencing.

What is a Conviction and Discharge?

In some cases, you can be convicted of an offence and then discharged (the process ends and you can go). You will only get a conviction and discharge if the court is convinced that in your personal circumstances, the fact of having a conviction on your record is sufficient punishment for the crime you committed. The court will not give you further penalties but court costs, paying compensation to a victim may still be ordered.

What is an Order to come up for sentence if called?

Sometimes, instead of giving you a sentence, the court can order you to do certain things (e.g. pay money to a victim), and only come back to court for sentencing if you don’t fulfill the condition. If you don’t comply with an order or follow through on an agreement, you can be required to come back to court to be sentenced.

What is making reparations?

If you’ve caused another person (usually the victim) financial loss or emotional harm, you might have to pay them money to make up for their loss. The court should take into account your financial position. They might let you pay less than the loss you actually caused, or let you pay it back over time.

What is a fine?

You can be made to pay a fine for some offences – this is monetary penalty as a punishment for your crime. The money from a fine is generally paid to the government. The court should take into account your financial position in deciding how much the fine should be. Sometimes if you’re unable to pay a fine, the court may ask you to complete community service instead.

What is a sentence for community work?

You can be sentenced to community work for anywhere between 40 and 400 hours. This is a penalty to complete volunteer work to help out the community.

If the sentence is for less than 100 hours, you have to complete all those hours within the first 6 months. If it’s longer than 100 hours, you have to do at least 100 hours in every 6-month period until all your hours have been completed. You’ll have to report to a probation officer so they can monitor your progress, and you’ll need to inform them if you’ve moved addresses. The probation officer will tell you where you should do your community work. If there is an organisation you would like to do community work for, you can discuss this with your probation officer.

When will I get disqualified from driving?

If you commit a serious offence involving a vehicle, the court can order you to not drive and to not have a driver’s licence for up to 3 years (or longer if you were convicted of manslaughter).

Some traffic charges, like driving over the alcohol limit, result in an automatic disqualification for a certain period. If you really need to be able to drive for a specific reason (for example if you’ll lose your job otherwise), you might be able to apply to the court for a limited licence. If you get a limited licence, the court can tell you under what conditions you can drive, including which car you’re allowed to drive, when you can drive, the reasons you’re allowed to drive to name a few.

What’s the difference between getting my car impounded and getting my car confiscated?

If you’ve committed a serious crime involving a car or vehicle, the court may confiscate your vehicle. This is different from having your vehicle impounded by a police enforcement officer. If your vehicle is impounded, you can get it back after 28 days. If it’s confiscated, you don’t get it back at all. If your vehicle is confiscated, you also aren’t allowed to own another vehicle for 12 months after the confiscation.

When will my car be confiscated?

The judge can confiscate your vehicle under a number of circumstances. There are situations where your vehicle may be confiscated, and at times where your car must be confiscated.

If you were convicted of driving offence, the judge may confiscate the vehicle you used when you committed the crime for:

  • Reckless or dangerous driving;
  • Street-racing or wheel-spins;
  • Careless or inconsiderate driving causing injury or death;
  • Failing to stop or stay stopped for the police, or failing to give them your details when stopped;
  • Driving over the breath or blood- alcohol limits, or any other drink/drug driving offence.

There are also some situations where your vehicle can be confiscated for non-traffic offences. This can happen if you’re convicted of any offence for which you can be jailed for more than 12 months and you used that vehicle to help commit the offence or to help you get away (whether you were the driver or not).

The judge must confiscate your vehicle if:

You have committed 2 driving offences from the list below within 4 years:

  • driving while disqualified or in breach of a limited licence;
  • breaching your alcohol interlock licence or zero alcohol licence;
  • reckless or dangerous driving;
  • aggravated careless driving causing injury or death;
  • manslaughter involving a vehicle;
  • failing to stop at an accident where someone has been injured or killed;
  • street-racing or wheel-spinning;
  • driving while over the 400 microgram breath-alcohol limit or the 80 milligram blood-alcohol limit, or driving under the influence of alcohol so that you’re incapable of proper control;
  • a drug-driving offence;
  • failing or refusing to have a blood test;
  • careless driving causing injury or death when affected by alcohol or drugs.

If you’re convicted of a street racing offence 3 times in 4 years, the court must order that your vehicle be confiscated and destroyed.

The judge cannot confiscate a vehicle that you do not own.

My car is being confiscated, but I need to have a car, what can I do?

Whenever the judge may or must confiscate your vehicle, they must take into account any hardship this would cause you in your job or business, and the hardship it would cause anyone else who regularly uses the vehicle, e.g. your partner or spouse.

For situations where the judge may confiscate your vehicle, they must take into account any “undue hardship”, meaning that you’ll have to prove that the loss of your vehicle would cause you inconvenience beyond the normal person.
For situations where the judge must confiscate your vehicle, you will need to prove that this would cause you “extreme hardship” or “undue hardship” to someone else (e.g. your family member or boss).

What is undue hardship?

When the court confiscates your car or disqualifies your licence, they understand that in most situations, it will inconvenience you and cause hardship. Everyone in the same boat will find it annoying and difficult without their vehicle. To show undue hardship, you must show that it’s not just an inconvenience to you, as it would be for the average person. Your circumstances must mean that it would be worse for you than the average person. Generally, this may mean serious financial hardship, the risk of losing your job, or some sort of harsh health reason.

What sort of sentencing will I get for serious offences?

Serious offences include things like stealing in a violent way, sexual crimes and seriously hurting someone on purpose. If you commit a serious offence you’re likely to get a more serious sentence. This might include:

  • Supervision;
  • Intensive Supervision;
  • Community Detention;
  • Home Detention;
  • Imprisonment;
  • Preventive Detention;
  • Any of the minor offence sentences.

In terms of sentencing, what is supervision?

Supervision targets less serious offenders and provides rehabilitation opportunities that motivate positive change. If you’re sentenced to supervision, you’ll need to report to your probation officer whenever they ask you to. You have to tell them where

If you’re sentenced to supervision, you’ll need to report to your probation officer whenever they request and update them on your living and working arrangements. You can’t move without telling your probation officer. The probation officer can also tell you that you aren’t allowed to live or work in certain places, or associate with certain people. Part of your conditions might also include requiring you to go to counselling, take medication, or to complete some other rehabilitation course or programme.

The court can put other conditions on your supervision sentence if they think the conditions will make it less likely for you to commit another crime.

 

In terms of sentencing, what is intensive supervision?

Intensive supervision is a more serious form of supervision and can last up to 2 years. You have to report to your probation officer at least once a week, as well as whenever they ask you to. You may have to participate in residential treatment and training programmes while there. Regular reports will be made back to the court about your attendance.

In terms of sentencing, what is community detention?

If you’re sentenced to community detention you can be required to stay in a certain place and not leave for between 2 and 84 hours per week. Community detention can last for up to 6 months. If anyone else lives in the place where your detention is, they have to be OK with you serving the sentence there.

You will be supervised by a probation officer, and have to follow their instructions. You need to tell the probation officer your address and let them know if you move or change jobs. Sometimes community detention can be electronically monitored.

In terms of sentencing, what is home detention?

You can be sentenced to home detention for between 2 weeks and a year. Home detention means that you have to stay at a certain place for the entire time of your sentence. If anyone else lives in the place where your detention is, they have to be OK with you serving the sentence there.

You’ll be under the supervision of a probation officer and have to follow their instructions. If you’re at home, you have to let a probation officer into the house if they ask. You can only leave the house if there is a serious medical emergency or the probation officer has given you permission to leave so that you can go to work or attend another approved programme. Sometimes home detention can be electronically monitored.

What happens after I finish home detention?

The court can also make you follow ‘post-detention conditions’ for up to 12 months after your home detention sentence finishes. These usually require you to report to a probation officer and to notify them when you change your address. Your probation officer can forbid you from living or working in specific places or associating with specific people during this period.

As part of sentencing, I’ve been told I have to wear an ankle bracelet, what is this?

Sometimes community detention or home detention can be electronically monitored which means that you will need to be attached to an electronic device some or all of the time. The monitoring device, usually in the form of an electronic ankle bracelet (anklet) lets the police know where you are, so they can check that you’re following the conditions of your home detention.

What happens if I try to remove the ankle bracelet?

If you try to remove the tracker or leave where you’re allowed to be without approval from your probation officer, an alert will be triggered at the monitoring centre and a field officer will be sent to your address. In some cases, the police may come and arrest you.

In terms of sentencing, what is imprisonment?

You may be sentenced to imprisonment if you commit a very serious crime or the court thinks that imprisonment is necessary to stop you from committing more crimes.

If you’re sentenced to less than 2 years’ imprisonment, you will likely receive parole after you have served half of your sentence. If you were given a longer sentence, you usually need to serve between one-third and two-thirds of the sentence before you automatically get parole. The parole board then decides what conditions you’ll have to follow for the rest of your sentence time. This includes reporting to a probation officer who can tell you where you can live or work, and whether you can associate with certain people.

If I am sentenced to prison, which prison will I go to?

Usually, you’ll be taken to the prison that is closest to the court where you were convicted and sentenced but it depends on availability and suitability. You do not get to choose the prison you go to.

In terms of sentencing, what is preventive detention?

If you commit a serious violent or sexual offence and the court thinks that you’re likely to do it again if you’re not stopped, you can be sentenced to preventive detention. This means that you’ll be imprisoned with no specified sentence length, and become eligible for parole after serving at least 5 years of imprisonment. Even if you’re released on parole, you may remain to be managed by Corrections for the rest of your life and can be recalled to prison at any time.

You can be sentenced to preventive detention, even if the court couldn’t usually give you a sentence of that length for the crime you’ve committed.

Will I get the maximum sentence in sentencing?

All offences have a maximum penalty. The judge will look at the facts of your case and decide what the suitable sentence would be. Generally, the maximum sentence is not given except in the most serious cases.

There is a “three strikes” law though where if you had previously been convicted of 2 or more serious violent offences, and are found guilty of another serious violent offence, then the judge must sentence you to the maximum prison sentence.

How does the judge decide on a sentence?

The judge will take into account the seriousness of the type of crime you had committed and what the law says about that crime, the seriousness of your offending, your involvement in the crime, the effect on the victim, and your personal circumstances including your cultural background.

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