Each state has its own sentencing legislation. These sentencing acts set out relevant factors to be considered when metting out the most appropriate sentences.
In Western Australia, this is the Sentencing Act WA
Discussed below are principles relevant you sentencing.
The court’s sentence has commensurate the gravity of the offence;
The gravity of the offence is determined based on following factors;
– the stipulated punishment in the law that defines the offence;
– circumstances surrounding the commission of the crime including the condition/vulnerability of the victim;
– presence of aggravating factors that might lean towards a heavier punishment;
– mitigating factors
These factors need to be present where the court is compelled to impose term of imprisonment.
– offense committed is of grave nature
– imprisonment is necessary for protection of the public
Plea of guilty is one of the mitigating factors. Where a plea is made at the first available time, the sentence can be reduced by as much as 25% off the sentence that would have been imposed on conviction following a trial.
MITIGATION PLEA
A mitigation plea is a representation or statement submitted to the court pleading for lightest possible sentence to be imposea. This is made following a finding of guilt or a plea of guilty..
A mitigation plea should address the following –
– family background
– educational history
– career prospects
– circumstances surrounding the commission of offense
– motive or factors leading to the commission of the offense
When sentencing, the judge is concerned with the possibility of re-offending. If the judge is persuaded that the risk of re offending is low, there is a higher chance of reducing the sentence or avoiding imprisonment..
A genuine demonstration of remorse may indicate that the convict is less likely to commit the offense.
The sentencing judge will consider whether the accused’s living environment is likely to cause the accused to re offend; and whether the accused has taken steps to distance himself from the environment that might trigger the accused to commit the offense again.
It is therefore important to address the above factors in the mitigation plea. Also be aware of “going rate” sentences. The lawyer consulted should advise you on the going rate based on case law.
SENTENCES
Possible sentences passed are discuss below.
Imprisonment:
Longer terms of imprisonment will include a period of parole with conditional release.
Community Based orders:
The offender is required to perform community work, attend rehabilitative programs under the supervision of a correctional officer.
Home Detention:
The offender is required to remain at home for a specified period of time, and allowed to leave home at specified times of the day.
Fine:
A financial penalty is another form of sanction which can also be in addition to any of the above sentences.
THE PROCESS
The offence alleged is stated in a prosecution notice which will be given to the accused person.
You will also be provided with a statement of facts. You need to ask for it to review for correctness because the judge will consider the facts stated when deciding on the appropriate punishment.
It is important to check the facts stated before pleading guilty because the facts stated will be the basis on which the judge decide on the appropriate punishment.
On the day of sentencing,. the accused will inform the court that he or she is pleading guilty. The police prosecuting officer will read out the statement of facts.
The.prosecutor might comment. on the appropriate punishment to be imposed for the judge to consider.
Thereafter, the defendant will made his or her mitigation plea (which is argument for the judge to pass the lowest possible sentence).
To be effective, the mitigation plea should contain relevant information or address the consderations set out in the Sentencing Act WA discussed above.
Totality principle
There are two aspects to this principle _
1. A judge is required “to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.”3
2. “The court should not impose a crushing sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release.”4
Where an accused is sentenced in the same proceeding for two or more counts of different but similar in nature – the judge will have to consider the above principle in deciding whether to impose that the punishment for the two count run concurrently and not consecutively – the latter means having to serve the total prison terms for count 1 and count 2 – so if count 1 is for 2 years and count 2 is for 3 years, the accused will have to serve in total 5 years – another way of saying is that the two terms are to run consecutively as opposed to having the two term run concurrently.
Sentencing Act WA
Principles of sentencing
(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2) 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.
(3) Subsection (1) does not prevent the reduction of a sentence because of —
(a) any mitigating factors; or
(b) any rule of law as to the totality of sentences.