Sentencing

Factors relevant to sentence are many and varied and include but are not limited to the following considerations:

• prior criminal history;
• age;
• circumstances of the offence and motive for the commission of the offence;
• background and personal circumstances of the offender;
• prospects of the offender being rehabilitated;
• personal deterrence;
• general deterrence;
• retribution

These factors have the potential to significantly influence a sentence. Often the judge or magistrate will require written medical, psychiatric or pre-sentence reports before they can sentence the offender. Witnesses may also be called to give oral evidence or victims can tender Victim Impact Statements for the court to consider in determining a sentence. Judges and magistrates may be subject to enactments relating specifically to the offence – for example minimum disqualification and minimum fine provisions in the Road Safety (Alcohol and Drugs Act) 1970.

Sentencing therefore is a finely balanced consideration of many issues and has been described as being an art rather than a science. Whilst sentences imposed for similar crimes and offences are relevant in determining the appropriate sentence, it should be noted that no two persons and no two crimes are the same.

The Sentencing Act 1997 was enacted essentially to amend and consolidate the law relating to the sentencing of offenders in the state of Tasmania. The principles espoused in the Sentencing Act are applicable to the Supreme Court and the Magistrates Court.

Sentencing is much more complicated than you would think. Not only are there fines, community service, sentences of imprisonment, or suspended sentences of imprisonment to consider, there are also therapeutic sentencing options available to a justice in deciding a sentence. For example, a person may have committed an offence because of drug problems. The court can decide to divert the offender to a Court Mandated Drug Diversion Program, or make a Drug Treatment Order (s27C, Sentencing Act 1997). A person could be suffering from a mental illness, in which case a Mental Health Diversion List Program is also a sentencing option. These are known as ‘therapeutic jurisprudence’ options, and focus more on rehabilitation than punishment.