Some Sentencing Terminology

* Concurrent – is when a punishment is served at the same time as another punishment.  For example, if an offender receives a term of 2 years imprisonment for one offence and another 2 years imprisonment (concurrent) for a second offence, then that equates to a total of 2 years imprisonment to cover both offences.

* Cumulative – is when a punishment is served on top of another punishment.  For example, if an offender receives a term of 2 years imprisonment for one offence and another 2 years imprisonment (cumulative) for a second offence, then that equates to a total of 4 years imprisonment to cover both offences.

* Parity – when more than one offender is charged with the same offence (known as co-offenders), they should receive the same punishment unless they are distinguishable from each other in some way (such as by the particular role they played in the offence or by their criminal records).

* Totality -when an offender is imprisoned for multiple offences, the total sentence must not exceed the overall criminality or be crushing.  It is not just a case of adding up all the terms of imprisonment because that could result in a very long and excessive sentence.  Some of the terms may have to be made concurrent to reduce the total sentence to a fair length in the circumstances.

General Deterrence

The sentencing principle that regularly over-rides all others is general deterrence.  It dictates that a severe punishment (often imprisonment) must be given to an offender so that other, potential offenders are deterred from offending.  It differs from specific deterrence, which relates to encouraging a particular offender not to re-offend.  When general deterrence is given priority, the factors personal to the offender take a back seat such that people of otherwise good character, with a lot going for them, and who are unlikely to re-offend, can still be imprisoned.  Such cases are always very difficult from the defence perspective.

General deterrence presumes that potential offenders are; (a) aware of the severe punishments that have been imposed in previous cases, and (b) will go through a process of rational forethought before deciding not to offend because the consequences are too great.  I am not alone in wondering whether general deterrence really works.  Offences are typically committed by people who do not keep track of the latest sentences reported in the paper and who have deep-rooted problems with decision making and other life skills.  Other offences occur in the heat of the moment when rationality is put to one side, if only very briefly, by otherwise sensible people.  After many years of imposing severe punishments for certain offences, I doubt the official statistics show a significant reduction in offending.  Further, I often wonder what becomes of those offenders imprisoned in the name of general deterrence whose own rehabilitation would have been best served by a different punishment.  Does the system actually make criminals in those cases rather than deter others?

Parole

When offenders are sentenced to a term of immediate imprisonment, they are nearly always made eligible for parole.  That does not mean they will definitely be released on parole when the time comes but, rather, they are allowed to apply for release on parole.  It will then be up to the Prisoners Review Board whether they are in fact released on parole and, if so, on what conditions.

Technically, parole is not available for terms of imprisonment less than 1 year, but there is a similar system in place for such terms called “administrative parole”.  An application for release on parole can be made after serving half the term of imprisonment.  However, the longest period an offender can be on parole is 2 years.  As such, for terms of imprisonment longer than 4 years, the offender must serve all but 2 years before being able to apply for parole (as opposed to serving half the term).  By way of example, a term of 18 months imprisonment equates to 9 months in jail before potentially being released on parole, while a term of 6 years imprisonment equates to 4 years in jail before being eligible to apply for parole.

The position is not surprisingly different when an offender is sentenced for murder.  In those cases, the court must impose a term of life imprisonment and, if there is to be parole eligibility, it cannot occur before serving at least 10 years in jail.

The Value of Pleading Guilty

Undoubtedly the strongest mitigator (i.e. reducer of punishment) known to the law is a plea of guilty.  The earlier the plea is entered in the process, the better, but a benefit will flow to the offender so long as it is entered before going to trial.  A plea of guilty at the first opportunity (sometimes referred to as a “fast-track” plea) can result in a reduction of 25% to 35% off the punishment.  The theory behind giving such a high value to an early plea is that it typically evidences remorse on the part of the offender and it certainly saves precious resources that go into a trial as well as the trauma associated with victims and witnesses giving evidence.

Perhaps the only other mitigator that would come close to a plea of guilty is youth but, clearly, not all offenders have that going for them.  Youth in the adult courts is generally 18 to mid-20s.  However, not all offenders have a plea of guilty open to them either.  In order to plead guilty to a charge, an accused person must accept that they committed the offence and did so substantially in the way alleged.  If they do not accept that they committed it, then they must plead not guilty and have a trial.  In WA, we do not recognise a plea of “no contest” like they do in America whereby an accused person can accept responsibility for a charge without admitting that they committed the offence.  In WA, even if an accused person accepts that they committed the offence but not substantially in the way alleged, then they will often have a trial of the issues to determine the factual basis upon which they are to be sentenced by the court.

When open to an accused person, a plea of guilty is not to be passed up lightly.  It is often the best thing that they will have going for them.

Spent Conviction Orders

An offender can apply for a Spent Conviction Order at the time of being sentenced by the court or after waiting a period of 10 years (by completing some paperwork at that time).

When applying for one at the time of sentencing, several criteria must be met as follows:

* The offender must be unlikely to commit the same offence again (e.g. the offence is not part of a pattern of offending and any underlying cause of the offence is being addressed).

* Either the offence is trivial or the offender is of previous good character.  It is extremely rare for the court to accept that an offence is trivial.  Offenders nearly always rely on their previous good character, evidenced by written character references and the lack of a criminal record.

* The offender should be relieved immediately of the adverse affect of a conviction being recorded.  Here, the court will want to see some evidence of a particular detriment that the offender will suffer if a conviction is recorded.  This is usually the hardest criteria to meet.  Potential detriments, rather than actual detriments, are often not sufficient and actual detriments can be difficult to prove.  The detriment normally relates to work and/or travel plans.  Finally under this criteria, there must be no public interest in the conviction being recorded.  For example, the court may decide that there is a public interest in a conviction for “stealing as a servant” being recorded because it is the sort of thing that future employers ought to know about.

A Spent Conviction Order does not result in the conviction being scrubbed out altogether.  The offender’s criminal record will still show the conviction but note that it has been spent.  As such, the government will still be aware of the matter.  The real utility in getting a Spent Conviction Order is that it allows offenders to still get police clearances for use in the private sector.

Technically, getting a Spent Conviction Order at the time of sentencing is very difficult.  The courts have said that they are only to be granted sparingly.  They are hardly ever granted in the superior courts but are more common in the Magistrate’s Courts where the less serious charges are dealt with.

The Different Punishments

The various punishments (sometimes referred to as “dispositions”) typically imposed by the adult courts in WA are as follows (from least serious to most serious):

* Conditional Release Order – is like a good behaviour bond or a suspended fine.  The offender has to refrain from re-offending for a set period (up to a maximum of 2 years) or else they are liable to pay a fine.

* Fine – is a monetary penalty.  Usually, an offender has 28 days in which to pay the fine but they may be able to apply for further time to pay if necessary.

* Community Based Order – can have one or more requirements from supervision, programme, and unpaid community service (up to a maximum of 120 hours).  The offender must comply with all requirements and also refrain from re-offending for a set period (up to a maximum of 2 years) or else they are liable to be re-sentenced.

* Intensive Supervision Order – is like a Community Based Order but more intensive and has a standard requirement of supervision. It cannot be imposed unless the court has first obtained a pre-sentence report.   It can have one or more additional requirements from programme, unpaid community service (up to a maximum of 240 hours), and a curfew (up to a maximum of 12 hours each day).  The offender must comply with all requirements and also refrain from re-offending for a set period (up to a maximum of 2 years).

* Suspended Imprisonment – is when an offender receives a jail term (up to a maximum of 5 years) but it is suspended for a set period (up to a maximum of 2 years).  The court will impose a sentence like “2 years imprisonment suspended for 1 year” which means the offender must refrain from re-offending for the next year or else they will be liable to serve a 2-year jail term.  If they don’t re-offend in the set period, then they don’t have to serve any time in jail.

* Conditional Suspended Imprisonment – is like a combination of Suspended Imprisonment and an Intensive Supervision Order.  During the suspended period, the offender must also comply with one or more requirements from supervision, programme, and a curfew (up to a maximum of 12 hours each day).

* Imprisonment – is the punishment of last resort and is not imposed lightly.  It must be for a period of more than 6 months.  The offender may be made eligible to apply for parole for terms of 12 months or more.  Terms may be backdated to include time already served in custody on remand.

Welcome!

Stay tuned as I get this blog up and running soon.

Please be aware that the information in this blog does not constitute legal advice.  It is general in nature and may contain errors.  Everyone should seek their own specific legal advice and not rely on anything contained in this blog.

Regards,

Michael Clarke