Sentencing: A basic guide to understanding sentencing

In light of recent high profile judicial decisions, such as Borce Ristevski and George Pell you may be wondering how sentences are reached. Whilst different to our previous BLP briefs, this area may be of general interest in understanding sentencing and the justice system in Victoria.

Chief Judge Peter Kidd sentenced Cardinal George Pell 

By way of background, Pell was sentenced to six year with a non-parole of  three years and eight months. This means after three years and eight months he will be eligible to have his release reviewed before the Parole Board. The publicity of this case and sentencing promoted Judge Kidd to live broadcast sentencing remarks.

Relevantly, Judge Kidd said

“…sentencing is often simplistically portrayed by some in the public sphere as being an easy and uncomplicated task. From where I sit today, the exercise is far from an easy one. And it is certainly not simple. I am required to weigh all of the relevant matters in this case and then reach a conclusion as to a just and appropriate penalty that reflects all of the circumstances of your case.”

How do decisions about sentencing come about?

The first thing to understand is that sentencing in Victoria is shared between parliament, the courts and government departments. Simply put, parliament make the laws, courts interpret the law and create further law by setting precedent in decisions, and government departments administer sentences. This model means that whilst judges hand down the sentence, they are restricted by what parliament has written as the law.
How does a judge make a decision?
Making a decision on sentencing isn’t a mathematical formula. To the contrary the process of reaching a decision is known as “Instinctive Synthesis”. This means the judge is required to consider all the features of the case and upon weighing them up decide what is right. The judge must consider the particular circumstances of the case and the particular offender within those circumstances.
The factors considered include:
  • the maximum penalty for the offence as set in legislation
  • the standard sentence for the offence (as set in legislation if one applies)
  • the sentences that have been given for similar cases
  • the nature and seriousness of the offence
  • the offender’s blameworthiness and the degree to which the offender should be held accountable for the offence (for example, a mental impairment might make a person less blameworthy for an offence but not reduce their legal responsibility)
  • whether the offence was motivated by hatred or prejudice (for example, racism)
  • the impact of the offence on any victim, including any injury, loss or damage caused by the offence
  • the personal circumstances of any victim
  • whether the offender pleaded guilty or had an intention to plead guilty, and the stage in the proceedings that this occurred (for example, immediately after being arrested compared with just prior to the trial)
  • whether the offender cooperated with law enforcement agencies (for example, by providing information to authorities on co-offenders or other criminal activity)
  • the offender’s previous character (including prior criminal history, general reputation and any contributions to the community)
  • whether there has been a significant delay in hearing the case, and the effect that such a delay might have had on the offender, witnesses or victims
  • any mitigating or aggravating factors.

The purpose of sentencing

The Sentencing Act 1991 (Vic) outlines five purposes of sentencing: just punishment, deterrence, rehabilitation, denunciation and community protection. When handing down a sentence, the court must achieve at least one of these purposes.

You be the Judge

Passing down a sentence is much easier said than done. In the comfort of your lounge room or over dinner it is easy to pass down a sentence and speculate on what is the “right” outcome. Considering the decision in such abstract, however, is significantly oversimplifying the role of our judiciary.

Challenge yourself to step into the shoes of a judge by playing virtual judge.

How can Brennan Law Partners assist?

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.