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How Will My Sentence Be Determined?

If you have pleaded or been found guilty of a criminal offence your matter will progress to sentencing.

The sentence you receive will depend on a vast array of factors.

Even if two people have committed the same offence, the penalty that is imposed may differ slightly between offenders.

Most people would be quick to attribute this to judicial discretion, however, contrary to what many people believe, sentencing is a science.

The ‘science of sentencing’ is comprised of two key steps:

Sentencing proceedings are very complex.

Even if the offence for which you’re being sentenced seems relatively minor, having an experienced criminal lawyer making submissions on your behalf can often be the difference between walking away with a conviction (and criminal record) or convincing the Magistrate or Judge not to record a conviction and ultimately avoiding a criminal record.

Our lawyers are highly experienced and can navigate you through the process to get you the best result in your case.

The sentence imposed must reflect the prescribed purposes of sentencing.

These purposes are outlined in section 3A of the Act, and include things like:

Next, a judge is obligated to consider all the possible alternatives to a custodial sentence.

Section 5 of the Act outlines that a judge cannot send a person to prison unless it is satisfied that no other penalty is appropriate.

A judge is obligated to take into account any ‘factor that affects the relative seriousness of the offence’.

This step is often referred to as the ‘proportionality principle’. It requires the judge to take into account the maximum statutory penalty that may be imposed, the circumstances in which the offence was committed and consideration of an offender’s culpability.

To determine an offender’s degree of culpability, a judge will consider things like the degree of intent or motive behind the commission of the offence.

Next, the judge will consider any aggravating or mitigating factors.

The presence of aggravating factors will likely increase the severity of your sentence, whereas the presence of mitigating factors will likely lesson the severity.

Aggravating factors include:

Mitigating factors include:

The totality principle is a common law principle that applies in cases where an offender has been convicted of multiple offences.

Adhering to the principle of totality requires a judge to ensure that the overall sentence imposed is a ‘just and appropriate measure of the total criminality involved’.

Therefore, if you are being sentenced for multiple offences, the judge is required to ensure that the penalty imposed reflects the ‘totality’ of your offending.

However, the judge will often allow you to serve your sentence concurrently, meaning the penalty will often overlap.

Our lawyers have extensive experience appearing in sentencing matters and will get you the best result.

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