NCJ Number
45117
Date Published
1977
Length
113 pages
Annotation
AN INSIGHT INTO THE SENTENCING PROCESS ITSELF IS PROVIDED, INDICATING THE BASIC PRINCIPLES APPLICABLE IN THE DETERMINATION OF SENTENCE AND ILLUSTRATING HOW SENTENCING DECISIONS ARE REACHED.
Abstract
THE REPORT IS PART OF A LONG-TERM STUDY OF THE PRINCIPLES OF SENTENCING AS ENUNCIATED IN THE JUDGMENTS OF THE NEW SOUTH WALES COURT OF CRIMINAL APPEAL. THE MAJORITY OF CASES ANALYZED WERE TAKEN FROM UNREPORTED JUDGMENTS OF THE COURT AND INVOLVE CHALLENGES MADE EITHER TO THE SEVERITY OR LENIENCY OF THE SENTENCES IMPOSED AT THE TRIAL. THE REPORT PROVIDES SOME INDICATION OF WHAT SENTENCES ARE ACTUALLY BEING IMPOSED UPON CONVICTED SEX OFFENDERS IN THE HIGHER CRIMINAL COURTS OF NEW SOUTH WALES AND INCLUDES STATISTICAL INFORMATION. BY EXAMINING THE JUDGMENTS, A BROAD SENTENCING PATTERN AND PHILOSOPHY EMERGE. THE MOST SIGNIFICANT FACTOR IN SENTENCING INVOLVES AN ASSESSMENT OF THE SERIOUSNESS OF THE OFFENSE. IN THIS REGARD, THE LEGISLATURE GIVES GUIDANCE BY INDICATING THE MAXIMUM PENALTIES WHICH MAY BE IMPOSED. A STUDY OF THESE PENALTIES, WHEN COMPARED WITH THE SENTENCES IMPOSED IN PRACTICE, REVEALS THAT MAXIMUM PENALTIES ARE RARELY IMPOSED. INCLUDED IN THE CONCEPT OF SERIOUSNESS IS THE DEGREE OF VIOLENCE USED BY THE OFFENDER; GENERALLY SPEAKING, THE GREATER THE DEGREE OF VIOLENCE THE MORE SERIOUS THE OFFENSE AND THE HEAVIER THE PENALTY. THE DISPARITY BETWEEN THE AGES OF THE OFFENDER AND THE VICTIM IS ALSO RELEVANT IN ASSESSING THE GRAVITY OF AN OFFENSE (E.G., THE INTENTION OF THE LEGISLATURE TO PROTECT YOUNG GIRLS FROM SEXUAL MOLESTATION OR INTERFERENCE CAN BE EASILY DISCERNED FROM THE STATUTORY GRADING OF PENALTIES). OTHER FACTORS THAT FREQUENTLY EMERGE FROM THE CASES STUDIES INCLUDE THE DEGREE OF PREMEDITATION INVOLVED IN THE CRIME, WHETHER THE OFFENDER WAS UNDER THE INFLUENCE OF ALCOHOL AT THE TIME OF THE OFFENSE, WHETHER THE CRIME COMMITTED BY THE OFFENDER WAS OUT OF CHARACTER, THE OFFENDER'S REPUTATION IN THE COMMUNITY, AND THE OFFENDER'S WORK RECORD. ONE FACTOR PARTICULARLY RELEVANT TO SEX CRIMES IS WHETHER THE VICTIM PRECIPITATED OR PROVOKED THE OFFENSE. THE SENTENCES IMPOSED IN CASES WHERE THE VICTIM HAD PLACED HERSELF IN A POSITION OF RISK (E.G., HITCHHIKING) APPEAR TO BE SLIGHTLY LESS SEVERE THAN IN SITUATIONS WHERE THE OFFENDER HAD CREATED THE OPPORTUNITY TO COMMIT THE OFFENSES (E.G., THE OFFENDER INVADES THE PRIVACY OF THE VICTIM'S HOME). THE COURT'S POLICY OF SENTENCING IN THE MORE SERIOUS CASES IS BASED ON THE PRINCIPLES OF DETERRENCE AND RETRIBUTION. REHABILITATION ASSUMES A SECONDARY ROLE IN RELATION TO CRIMES OF VIOLENCE. THE TWO MOST SIGNIFICANT FACTORS IN SENTENCING IN THIS AREA ARE THE CIRCUMSTANCES OF THE OFFENSE WITH SPECIAL EMPHASIS ON THE DEGREE OF VIOLENCE USED AND THE OFFENDER'S PRIOR CRIMINAL RECORD. ANOTHER IMPORTANT FACTOR IN ASSESSING SENTENCE IS THE MEDICAL OR PSYCHIATRIC CONDITION OF THE OFFENDER; HERE, THE COURT TENDS TO EMPHASIZE THE NEED TO PROTECT THE COMMUNITY IN PREFERENCE TO CONSIDERING THE INTERESTS OF THE OFFENDER. REMORSE IS ALSO A PLEA FOR REDUCING THE SEVERITY OF SENTENCE; HOWEVER, IN MANY CASES WHERE SUCH SUBMISSIONS ARE RAISED, THEY APPEAR TO CARRY LITTLE WEIGHT WITH THE COURT OF CRIMINAL APPEAL. IN MANY CASES, THE SUBJECTIVE ELEMENTS TEND TO BE REFLECTED IN THE LENGTH OF THE NONPAROLE PERIOD RATHER THAN IS THE HEAD SENTENCE. THE NONPAROLE PERIOD REPRESENTS THE MINIMUM PERIOD OF IMPRISONMENT WHICH THE OFFENDER IS REQUIRED TO SERVE AS PUNISHMENT FOR HIS CRIME. APPENDIXES PRESENT STATUTORY LIMITS FOR SEXUAL OFFENSES AND A SUMMARY OF RAPE OR RAPE-RELATED SENTENCING DECISIONS AT THE TIME OF WRITING.