The National – Wednesday, June 22, 2011
IF a person admits to committing a crime, or if a person is found by a judge or magistrate to have committed a crime, then, it will be necessary to decide what punishment or sentence should be imposed on that offender.
Sentencing is difficult because the sentence should be appropriate for the circumstances of each case, which suggests different sentences and, yet, fairness requires that similar sentences be imposed in similar cases.
Also, it is difficult to combine justice and mercy at the same time since justice is likely to suggest a higher sentence and mercy usually suggests a lesser sentence.
Sentences are imposed in criminal cases to: (1) Protect the community from the offender; (2) Ensure the offender is appropriately punished; (3) Prevent crime by deterring other people from committing the same crime; (4) Promote the rehabilitation of the offender; (5) Make the offender responsible for his or her actions; and (6) Recognise the harm done to the victim and to the community.
A judge or magistrate considers many things before deciding what sentence to impose. They include : (1) The circumstances of the offence; (2) The circumstances of the offender; (3) Any relevant laws passed by parliament; and (4) Any relevant judgments from earlier cases, particularly judgments of the Supreme Court.
When considering the circumstances of the offence, the impact on the victim is an important consideration.
The circumstances of the offender will include whether he or she has any previous convictions, ie whether they have been found guilty on an earlier occasion and what sentence was imposed on that occasion.
Of the laws passed by the parliament, the Criminal Code will usually be relevant. By way of example, it will state the maximum penalty that can be imposed. There may be a judgment from an earlier case in which the Supreme Court has set out guidelines. As the word guidelines suggests, such decisions only provide a guide and not a strict rule.
The extent to which the sentence will depart from any guideline will usually depend on any things which make the case is worse than usual, called aggravating factors, or any things which make the case less serious than usual, called mitigating factors.
Aggravating factors will suggest a higher or more severe sentence while mitigating factors will suggest a lower or more lenient sentence.
Commonly, cases have some features which are aggravating and some aspects which are mitigating.
In such cases, the judge or magistrate has to weigh up those competing aspects when deciding what sentence to impose. An example of an aggravating factor is if the offender has prior criminal convictions, especially if those convictions are for the same offence or the same kind of offence.
The most common mitigating factor which arises is when the offender decides to plead guilty in which case a lesser sentence is usually imposed.
Section 18 of the Criminal Code sets out a number of kinds of punishment: (1) Death penalty; (2) Imprisonment with hard labour; (3) Imprisonment with light labour; (4) Detention at a place such as Boystown; (5) A fine; (6) A promise by the offender to be of good behaviour, commonly called a good behaviour bond; and (7) Restriction of movement.
The court can also order that the offender perform community service and may impose an order for the payment of compensation.
There will always be a sentence hearing before a sentence is imposed. At the sentence hearing, both the state and the offender are given the opportunity to place evidence before the court and to make submissions as to what sentence should be imposed.
The magistrate or the judge will then consider the evidence and submissions before deciding what sentence to impose.
When the judgment is delivered, either orally or in writing, the judgment will contain not only details of the sentence imposed but also the reasons for that sentence. That judgment will either be delivered on the same day as the sentence hearing or on a later date.
It is desirable to keep the time between the sentence hearing and the judgment on sentence as short as possible so that offenders do not have to wait for a long time to know what punishment will be imposed.
In some cases, the offender will have been waiting for the outcome of his or her case in prison in which case he or she is said to be on remand.
However, a person accused of a crime may be allowed to live outside prison during the period from the time when he or she is charged until the case is concluded.
In such a case, the person is said to have been granted bail. Bail is usually granted on a number of conditions, such as where the person shall live, that he or she not contact state witnesses and that an amount of money be lodged.
That money is refunded or forfeited depending on whether the bail conditions are obeyed.
The court may also require other people to lodge money which will be forfeited if the person does not attend court when required to do so.
Such a person, called a guarantor, risks his or her money because they can expect that money to be forfeited if the bail conditions are not met.
If the offender has been on remand prior to the sentence being imposed, the period of time already spent in custody will be deducted from the overall sentence, leaving a period remaining to be served.
Some or all the remaining sentence may be suspended, meaning that it will not need to be served if the offender is of good behaviour.
An appeal from the sentence that was imposed may be lodged by either the state or the offender. Usually, just lodging an appeal does not stop the sentence from commencing and the appeal court will normally require exceptional circumstances before granting bail to someone who has been already convicted of committing a criminal offence.
Next week: Sentencing in murder cases Graham Ellis SC is a former judge of the National Court and the Supreme Court. He served from 1990 to 1992, when he was based in Rabaul, and from 2009-11, when he was based in Wabag.