Factors in sentencing

In determining the sentence, the judge or magistrate must take into account a number of factors, such as:

• the facts of the offence
  
• the circumstances of the offence
  
• subjective factors about the offender
  
• relevant sentencing legislation and case law.
  

The judge or magistrate may also consider the general pattern of sentencing by criminal courts for the offence in question. 

Maximum penalty

The maximum penalty that a judge or magistrate can impose for each criminal offence is set out in legislation. The maximum penalty for individual offences differs according to its seriousness. When maximum penalties are set by Parliament, it is intended that such penalties will be given only when the case falls within the 'worst' category of cases for which the penalty is prescribed. Examples of maximum penalties are life imprisonment for murder and two years imprisonment for common assault.

Aggravating and mitigating factors

In determining the appropriate sentence for an offence, the court must first identify the 'objective seriousness' of the offence, by reference to the actual conduct of the offender that gave rise to that offence.

The court must also take into account any aggravating factors concerning the commission of the offence, as well as any mitigating factors relevant to the offence, or to the personal circumstances of the offender.

An aggravating factor can increase the potential sentence, whereas a mitigating factor can reduce it. The relative importance of each factor will vary, depending on the circumstances of the case.

Victim impact statements

A victim impact statement is a written statement that describes the impact of a crime upon a victim or a victim's family member. It is given to the court after a person has been convicted and before the person is sentenced.

A statement can be made in the Supreme Court or the District Court if the court considers it appropriate to do so, and the statement is in relation to an offence that involves actual or threatened violence (including sexual assault) or the death of, or any actual physical bodily harm, to any person.

A statement can be made by a victim (or their representative, such as a family member or counsellor) who has suffered personal harm as a direct result of an offence (the primary victim) or a family member of a primary victim (or their representative) who has died as a direct result of the offence.

A victim impact statement can be read by the victim or their representative in open court or handed up in written form. The maker of the statement can be cross-examined or questioned in relation to the statement.

For more information on victim impact statements, go to Victims rights on the Victims Services website.