Sentencing In Western Australia

Whether you are convicted of an offence by way of your own plea of guilty or you are found guilty following a trial the court then proceeds to sentence. That involves a decision by the court on what penalty to put in place.

The following are the penalties that a sentencing court can impose in WA courts:

• Financial Penalty
• Community-Based Order
• Intensive Supervision Order
• Suspended Imprisonment Order
• Conditional Suspended Imprisonment Order
• Immediate Imprisonment

Obviously, the most undesirable outcome for anyone being sentenced is a term of immediate imprisonment. However, under the Sentencing Act WA, a sentence of immediate imprisonment is a sentence of last resort and must not be imposed unless it is justified by the seriousness of the offence or the need to protect the community requires it.

At the other end of the scale, there is a financial penalty, which, if certain criteria are met, can sometimes be accompanied by a spent conviction order. This means that the conviction will not be recorded against your name. In between, there are various orders that the court may decide to put in place.

For sentencing advice in relation to your specific matter, contact Andrew Williams today on (08) 9278 2575.

Community-Based And Intensive Supervision Orders

What is an intensive supervision order in Wesertn Australia?

A community based or intensive supervision order is a mid-level penalty designed to impose both punitive and rehabilitative measures on the offender.

In achieving the rehabilitative aims under a community or intensive supervision based order the court will generally impose program and supervision requirements to which the offender is to comply.

A conviction is recorded against anyone placed under an Intense Supervision Order in WA.

Supervision Requirement

The supervision requirement of the order involves a series of appointments with the Department of Community Corrections.

Community Corrections are assigned by the court to keep in touch with the offender and to speak to them about what’s going on in their life during the course of the order. Sometimes it might require the offender to be subject to urinalysis tests.

Program Requirement

The program requirement is more onerous. Community Corrections can send the offender off to any qualified person: a doctor, a psychologist, a psychiatrist, or a counsellor.

They can ensure that group counselling or one on one counselling takes place and any other form of therapy that is deemed appropriate in order for the offender to address any issues which previously acted as a precursor and catalyst to the offending.

In achieving punitive measures under a community or intensive based order the court may also attach conditions for the offender to complete unpaid work in the community.

Breach Of A Community Based Or Intensive Supervision Order

A community based or intensive supervision order may be breached in either of two ways.

It can be breached by failing to comply with the conditions imposed or alternatively by way of reoffending during the course of the order.

Either way will see the offender being brought back to the court to be resentenced for the offence or offences for which the community or intensive supervision order was imposed.

Suspended Imprisonment Orders

A suspended imprisonment order is a term of imprisonment which is served in the community. The aim of a suspended sentence is to strike a balance between undermining the seriousness of the offending and allowing the offender to rehabilitate by not sending them to prison.

When a term of imprisonment is put in place the term of the imprisonment is announced followed by the length of the period in which the suspension is to operate. For example, the court may impose 12 months imprisonment and order it to be wholly suspended for a period of 18 months.

Why Do Courts Impose Suspended Sentences?

Suspended terms of imprisonment are often imposed because the court considers that the community interests are likely to be better served in the long run by giving the offender the opportunity to serve their sentence in the community while maintaining employment and maintaining a relationship with their family rather than imposing immediate imprisonment and run the risk of undoing the efforts that the offender may have already made to rehabilitate.

Breach Of A Suspended Imprisonment Order:

If a person who is subject to a suspended imprisonment order commits an offence during the suspended period and the offence is potentially punishable by a term of imprisonment the offender is in breach of the suspended imprisonment order. In these circumstances, the starting point is that the court must order that the offender serve the term of imprisonment that was suspended unless there are circumstances which would make it unjust for the court to do so.

Conditional Suspended Imprisonment:

The District and Supreme Courts often impose what is called a conditional suspended imprisonment order which is a suspended imprisonment order with program and supervision requirements and conditions attached similar to those described above in a community based or intensive supervision order.

Any non-compliance with the conditions of a suspended imprisonment order will also result in a breach and the offender will then be resentenced for the offences for which the suspended imprisonment order was imposed. So if a person breaches the conditions of a suspended imprisonment order and they have not shown themselves to be genuine in their efforts to rehabilitate, then the odds on them being able to persuade the court not trigger or activate the suspended term are remote.

What You Need To Be Aware Of If You Are Placed On A Conditional Suspended Imprisonment Order:

For a person who is subject to a conditional suspended imprisonment order, it boils down to two things. You need to stay out of trouble and you also need to comply with the program and supervision requirement. And if you are able to do this it also means at the end of the period of suspension you are no longer at risk of having the term of imprisonment activated.

Immediate Imprisonment

A term of immediate imprisonment is the most severe form of penalty that a WA court can impose and due this, is regarded as an option of last resort. Where a term of immediate imprisonment is imposed, the offender will be taken into custody and be held in prison for the duration of the term (subject to parole).

There are 16 government run prisons in WA, ranging from minimum to maximum security. Offenders aged between 10 and 18 that are sentenced to a term of imprisonment will go to Banksia Hill, the only youth detention centre in WA.

Once a person is sentenced a term of immediate imprisonment, they will go to Hakea Prison to determine their security rating. Determination of the security rating will inform what prison that person will serve the majority of their sentence.

Usually towards the end of the sentence, the offender will finish their time at lower security prison farms such as Karnet Prison Farm and Wooroloo Prison Farm.

Pre-Sentence Reports WA

A pre-sentence report assists the court to look at the bigger picture when sentencing an individual. A pre-sentence report would be ordered by a judge or magistrate to be compiled after a plea of guilty has been entered or a conviction at trial.

When a pre-sentence report is requested, a Community Corrections Officer will collect information about the offender’s background, circumstances and future plans. Copies of the report will be given to the relevant judicial officer.

Importantly, the report is prepared by a Community Corrections Officer because it is supposed to be a fair reflection of the offender. That is, the report does not form part of a defence or part of a plea.

In order to compile the report, the offender will be interviewed by a Community Corrections Officer. Questions that would be asked include:

• What are your present circumstances?
• What was your upbringing like?
• What is your current family situation?
• What is your employment status?
• What are your ambitions for the future?
• What offence did you commit?
• Do you have a criminal record?

The report is then compiled and would include information from the police and the offender regarding what sentences might be appropriate. Ultimately, it is the discretion of the court as to what sentence is imposed but this report assists that process.

Sentencing Of First Time Offenders

A first-time offender is a person who has committed a crime for the first time. This means that they would have no criminal history. There is a possibility that a first-time offender would be treated with more leniency but this is heavily dependent on the nature of the offending and circumstances of the case.

Importantly, no prior criminal history is a consideration in the sentencing that points towards a less severe sentence imposed. In the context of an application for a spent conviction, this would be stronger in circumstances where a person has not previously offended.

The Sentencing Act WA

Sentencing is a fundamental part of the criminal law. The Sentencing Act 1995 (WA) provides for the sentencing of all persons convicted of an offence and offers a wide range of sentencing options for the courts.

The purpose of the Act is to aid judicial officers in the construction of sentences. Sentencing involves the weighing of factors that can pull, sometimes strongly, in different directions and which relate to such different matters as to be difficult to weigh. 

Proportionality

Section 6(1) of the Sentencing Act states the basic principles of proportionality. That is the sentence imposed on an offence must be commensurate with the seriousness of the offence. In other words, the severity of the penalty must reflect the severity of the offending.

Section 6(2) provides that the seriousness of an offence must be determined by taking into account:

         (a)   the statutory penalty for the offence; and

         (b)   the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

         (c)   any aggravating factors; and

         (d)   any mitigating factors.

Objectives

Sentencing aims to achieve the following objects:

• Punishment to the wrongdoer;
• Vindication for the victim;
• Rehabilitation of the wrongdoer;
• General deterrence i.e. sending a clear message that the conduct is not acceptable in the general community and others should refrain from engaging in it; and
• Specific deterrence i.e. stopping the offender from committing the same crime again. 

Bail After Sentencing

When all pending matters have reached a disposition and the court has imposed the penalty, the offender is no longer subject to a bail undertaking and its conditions. However, the court may impose conditions that are the subject to an order that is imposed as the sentence.

Learn more about bail in Western Australia. 

Mandatory Sentencing 

A mandatory sentencing law imposes the penalty for an offence that cannot be derogated from by the courts. This is contrary to the usual process where the court has a wide discretion to impose the penalty it thinks fit.

Different offences have attracted mandatory sentencing laws over time. A common perception about the criminal justice system is that sentences tend to be too lenient following the ‘tough on crime’ approach. In light of this, parliament has enacted mandatory sentencing laws with the intention that penalties imposed by the courts for particular offences meet public expectations.

In WA, mandatory sentencing applies to repeat adult and juvenile offenders convicted of residential burglary, Sentencing In Western Australia or serious assault to a police officer.

Mandatory sentencing laws have been subject to great criticism by governmental bodies, legal practitioners and academics for their arbitrary nature and disproportionate impact on Aboriginal and Torres Strait Islander Peoples.

Nevertheless, these laws remain an important part of the WA sentencing regime.

How We Can Help

If you are facing a criminal charge you need the help of an experienced criminal lawyer. Get in touch with us on 08 9278 2575 for representation and advice.