How Does a Judge Decide on a Sentence?

As every case is different, the Judge will decide on the appropriate sentence by considering all the factors set down in the Sentencing Act. The Judge will start with a general view of the requirements for sentencing and the nature of the offence and then take into account the circumstances of the particular case.

The purposes of sentencing are to:

• Hold the offender accountable for harm done to the victim and the community by the offending
• Promote in the offender a sense of responsibility for that harm
• Provide for the interests of the victim of the offence and provide reparation for harm done
• Denounce the offender's conduct
• Deter the offender or other persons from committing the offence
• Protect the community from the offender, and
• Assist in the offender's rehabilitation and reintegration.

The Judge must take into account the seriousness of the offending in the particular case and the seriousness of the type of offence in comparison with other types of offences.

The court is bound to impose the least possible restrictions appropriate in the circumstances. The maximum penalty prescribed for the offence can be imposed if the offending is within the most serious of cases, unless circumstances relating to the offender make that inappropriate.

Any information provided to the court about the effect of the offending on the victim must be taken into account by the court. Also, if there are any particular circumstances relating to the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe, this must be taken into account.  

If the offender has offered to make amends to a victim, offered compensation, or taken part in a restorative justice process, this will also be taken into account in sentencing.

The Judge is required to sentence you to the minimum possible sentence given the factors above. This means if the penalty for the charge specifies a  $2000 fine or 3 months' imprisonment, the Judge must consider giving you a fine in the first place. If a fine would not satisfy the purposes of sentencing, the next option would be community work. If community work is not appropriate the last option available to the Judge is a custodial sentence.

If a fine would be appropriate, but you can't afford to pay one, the Judge can impose community work instead.

Reparation is also likely to be imposed as compensation for loss or damage of property and emotional harm to the victim.

The sentencing options available to the Judge have different purposes. It may be appropriate in some circumstances for the sentence to be primarily punitive (a punishment) e.g. community detention, but in other circumstances a primarily rehabilitative approach will be warranted e.g. intensive supervision.  The Judge also has the ability to combine sentencing options so that each sentence is appropriate for the individual and the offending e.g. community work and supervision.

In addition to the factors above, the Judge must also consider "aggravating" and "mitigating" factors.