If you have been convicted of a criminal offence, the next most important step is a sentencing hearing which will determine the penalty to be imposed. With limited exceptions involving mandatory minimum penalties each case is assessed individually, guided by statutory principles and appellate authority.
The following outlines how sentencing works in Western Australia, including the purpose of sentencing, factors courts consider when sentencing and why legal representation matters.
The Purpose of Sentencing
When a judge is considering an appropriate sentence, they have a number of goals in mind, including:
- To punish the offender in a manner that is just in all the circumstances
- To prevent crime by deterring the offender and others
- To protect the community
- To promote the rehabilitation of the offender
- To make the offender accountable for their conduct
These purposes are not ranked in order of importance. The weight given to each depends on the nature of the offence and the characteristics of the offender.
For example, in offences involving serious violence or large-scale drug supply, general deterrence and community protection often assume significant importance. In cases involving young offenders or first-time offenders, rehabilitation may carry more weight.
Factors Courts Consider When Sentencing
Courts will consider a number of factors in determining the appropriate sentence.
Seriousness of the Offence
Section 6 of the Sentencing Act 1995 (WA) establishes that a key consideration in sentencing is that it must be proportionate to the seriousness of the offence. Seriousness is assessed by reference to the statutory maximum penalty, the circumstances of the offending including victim vulnerability and any aggravating or mitigating factors.
A statutory maximum is an upper limit for penalties prescribed by Parliament to deal with the most egregious forms of an offence. For example, dangerous driving causing death under section 59(3) of the Road Traffic Act 1974 (WA) carries a maximum penalty of 20 years’ imprisonment. Where dangerous driving causes grievous bodily harm under section 59(2A), the maximum penalty is 14 years’ imprisonment.
The maximum penalty does not represent the default sentence. Rather it is reserved for the worst category of offending within that offence. Sentencing courts must consider the objective seriousness of the conduct, the offender’s prior history, any aggravating or mitigating features and the purposes of sentencing when choosing to apply a penalty at or under this maximum penalty.
Criminal History & Personal Circumstances of the Offender
Criminal history may be relevant in determining the appropriate penalty. Courts take into account previous convictions and repeat offending, particularly for similar offences.
The offender’s personal circumstances may be relevant to issues of rehabilitation and risk. Age, mental health, employment history and family responsibilities may all be placed before the court. Pre-sentence reports may be ordered to assist the court in understanding the offender’s background and prospects.
Impact on Victims
Victim impact statements also play a role in determining sentence. These statements allow victims to describe the harm suffered as a result of the offending. While a sentence must remain proportionate, the court is entitled to consider the impact of the offence.
When sentencing an offender for multiple offences, a court must apply the totality principle. This requires the court to consider and assess the combined effect of all individual sentences to ensure the overall punishment is just and proportionate. Even where each individual sentence is appropriate in isolation, their cumulative impact must not be “crushing” or disproportionate to the offender’s overall criminality.
Precedents
Sentencing must also be consistent with comparable cases (follow ‘precedent’). Although each matter turns on its own facts, appellate courts in Western Australia provide guideline judgments and comparative analysis to promote parity in sentencing.
The principle of consistency does not require identical outcomes, but it does require that similar offending committed in similar circumstances attracts broadly similar penalties. This promotes equality before the law, public confidence in the administration of justice, and predictability in sentencing outcomes.
Aggravating and Mitigating Factors
Under the Sentencing Act 1995 (WA), a court must consider both aggravating (section 7) and mitigating (section 8) factors in determining sentence.
Aggravating factors are any circumstance of the offence or the offender that increases the seriousness of the offending and therefore justifies a heavier penalty. Aggravating factors may include:
- Offending committed while on bail or parole
- Breach of trust
- Targeting vulnerable victims
- Use of weapons
- Premeditation and planning
Mitigating factors being circumstances that reduce moral culpability or otherwise justify leniency. Mitigating factors may include:
- Lack of prior convictions
- Youth or advanced age
- Demonstrated remorse
- Cooperation with law enforcement
- Efforts at rehabilitation
An early plea of guilty has particular statutory recognition as a mitigating factor. Section 9AA of the Sentencing Act 1995 (WA) provides that a court may reduce the sentence it would otherwise have imposed to reflect the timing of a guilty plea.
A plea entered at the first reasonable opportunity may attract a significant reduction of the penalty of up to 25%. The longer the delay of a plea of guilty the more depleted the discount on the sentence becomes.
Types of Sentences Available in WA
A number of sentencing options are available to the courts and outlined under the Sentencing Act 1995 (WA).
Under section 46, a court may release an offender without imposing a sentence if the offence is trivial or technical and, having regard to the offender’s character, antecedents, age, health and mental condition, and any other relevant matter, it would be unjust to impose any other sentencing option.
Fines may also be imposed under Part 8 of the Act for a person or a body corporate. The court must consider the offender’s financial capacity when fixing the fine.
Under Part 7 of the Act, a court may impose a Conditional Release Order (CRO) if it is satisfied there are reasonable grounds to expect the offender will not re-offend during the term of the order and that the offender does not require supervision under a Community Corrections Order (CCO). A CRO operates on the basis that if the offender commits another offence while it is in force, they may be re-sentenced for the original offence.
Community-based orders (CBO) are governed by Part 9 of the Act. A CBO is a court order lasting between 6 and 24 months that requires an offender to follow certain conditions set by the court, and if they commit another offence or breach those conditions, they can be brought back before the court and dealt with again. These orders can include supervision requirements, program participation and other conditions designed to address offending behaviour.
An intensive supervision order (ISO) is outlined under Part 10 of the Act. An ISO is a court order lasting between 6 and 24 months that requires the offender to be supervised and to comply with any additional conditions set by the court. If they commit another offence or breach the order, they can be brought back before the court and re-sentenced.
Conditional suspended imprisonment is provided for under Part 11 if of the Act. The court may impose a term of imprisonment but suspend its operation subject to compliance with conditions. Offending during the course of the suspended period or no compliance with conditions may result in a breach of the order resulting in activation of the term of imprisonment originally imposed.
Finally, Part 13 of the Act outlines that a term of immediate imprisonment may be imposed where no lesser penalty is appropriate. Terms of imprisonment must adhere to the totality principle and when sentences may be served concurrently or cumulatively as well as the whether the offender is made eligible of parole.
For certain offences, other legislation imposes mandatory minimum penalties or mandatory drivers licence disqualification periods. For example, specified offences under the Road Traffic Act 1974 (WA) carry mandatory licence disqualification periods. In such cases, judicial discretion is constrained by the law.
Why Legal Representation Matters at Sentencing
Sentencing is often the most crucial stage of any criminal proceeding, requiring the tendering of material relevant to personal circumstances and rehabilitation. Character references, evidence of treatment programs and proof of restitution all can materially affect outcome.
Sentencing is a structured and principled process that balances punishment, deterrence, rehabilitation and community protection. The outcome in any case depends on the seriousness of the offence, personal circumstances and the material placed before the court. If you are facing sentencing, obtaining advice from a criminal lawyer in Perth can help ensure that all relevant mitigating factors are properly presented.