Sentencing: The judge's decision about punishment
The different types of sentences
There are a range of sentences that a judge can give, depending on what's appropriate in the particular case. A judge can also give a combination of sentences.
The following are the categories of possible sentences and orders:
Discharge, or order to come up for sentence
- Discharge without conviction – this is the equivalent of being found not guilty (an acquittal). The judge can only discharge without conviction if the direct and indirect consequences of a conviction would be out of all proportion to the seriousness of the offence. Also, a discharge without conviction can only be given if the particular offence doesn't have a minimum sentence. The judge may also order restitution or compensation.
- Conviction and discharge – This is only available if there isn't a minimum sentence. Also, the judge can only convict and discharge if the judge is satisfied a conviction would be a sufficient penalty in itself.
- Order to come up for sentence if called on – If you have been convicted, then instead of imposing a sentence the court may order you to come up for sentence if called on within a period of up to one year. (This is sometimes called a “suspended” sentence, or a “good behaviour bond”.)
Fines and reparation
- Paying a fine – A fine is a punishment for breaking the law. It's paid to the court. (For more information about fines, see “Fines” below.)
- Paying reparation – Reparation is a payment as a form of compensation made by an offender to a victim of a crime.
The $50 offender levy
Everyone sentenced in the District or High Court has to pay a special $50 fee called the “offender levy”.
- Community work – This requires you to complete a set number of hours of community work, being not less than 40 or more than 400 hours.
- Supervision – You will be subject to supervision by a probation officer for a period of between six months and one year, and must comply with various reporting, residential, association and other conditions.
- Intensive supervision – You will be subject to supervision by a probation officer for a period of between six months and two years and must comply with various reporting, residential, association and other conditions. It involves more frequent reporting to the probation officer than for a standard sentence of supervision, and it may include doing a residential programme as one of the conditions.
- Community detention – You are required to remain at an approved residence under electronic monitoring for between two and 84 hours per week for a period of up to six months.
Home detention and prison
- Home detention – You are required to remain at an approved residence under electronic monitoring with strict limitations on when you can be away from the residence, and close supervision by a probation officer. Sentences can be for a period of 14 days to 12 months.
Will I get the maximum sentence?
All offences have a maximum penalty. The judge will look at the facts of the case to decide what sentence is appropriate in the circumstances. The maximum sentence is usually given only in the most serious cases.
Under the “three strikes” law, if you have previously been convicted of two or more serious violent offences (and you received the appropriate warnings), and you are receiving a sentence for a further serious violent offence, then the court must sentence you to the maximum term of imprisonment (see “‘Three strikes' law for repeated serious violent offending” in this chapter).