Crimes (Sentencing) Act 2005

In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:

the nature and circumstances of the offence;

any other offences required or allowed to be taken into account;

if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—the course of conduct;

if the personal circumstances of any victim of the offence were known to the offender when the offence was committed—the circumstances;

any injury, loss or damage resulting from the offence;

the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;

For who may make a victim impact statement, see s 49.

The court must not draw any inference about the harm suffered by a victim from the fact that a victim impact statement is not given to the court in relation to the offence (see s 53 (1) (b)).

if a victim of the offence was pregnant—

whether the offender knew, or ought reasonably to have known, that the victim was pregnant; and

whether the offender intended to cause, or was reckless about causing, loss of or harm to the pregnancy; and

the loss of or harm to the pregnancy; and

whether the offender intended to cause, or was reckless about causing, the death of or harm to a child born alive as a result of the pregnancy; and

the death of or harm to a child born alive as a result of the pregnancy;

if the victim of the offence was a vulnerable person—

whether the offender knew, or ought reasonably to have known—

that the victim was a vulnerable person; or

that the victim was a vulnerable person and the extent of the person’s vulnerability; and

the loss or harm to the vulnerable person;

any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence;

the degree of responsibility of the offender for the commission of the offence;

a plea of guilty by the offender (see section 35);

any assistance by the defence in the administration of justice (see section 35A);

any assistance by the offender to law enforcement authorities (see section 36);

the cultural background, character, antecedents, age and physical or mental condition of the offender;

the financial circumstances of the offender;

the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants;

whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected;

the degree to which the offence was the result of provocation, duress or entrapment;

whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender;

any jury recommendation for mercy;

whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;

whether the offender was in a position of trust or authority when the offence was committed;

the reason or reasons why the offender committed the offence;

whether the offender has demonstrated remorse;

if the offender has complied with an order for assessment, treatment, referral or monitoring by the court alcohol and drug assessment service under section 40B (2)—that fact;

if the Crimes (Restorative Justice) Act 2004, section 19 (1) (b) applies to the offender—that fact;

whether the offender has paid the prescribed penalty in accordance with any infringement notice served on the offender for the offence;

For when an infringement notice may be withdrawn after it has been paid, see the Magistrates Court Act 1930, s 127 and the Road Transport (General) Act 1999, s 36.

current sentencing practice.

See s 133D for additional considerations that apply in sentencing a young offender.

Without limiting subsection (1), in deciding whether a good behaviour order is an appropriate penalty for an offence, the court must consider the nature and severity of the conditions that may apply to the offender under the order.

Subsections (1) and (2) do not limit the matters a court may consider in deciding how an offender should be sentenced (if at all) for an offence.

The fact that any relevant factor is known to the court does not require the court to increase or reduce the severity of the sentence for the offence.

In this section:

any lawyer representing the offender; or

if the offender is not legally represented—the offender.

has a disability within the meaning of the Disability Services Act 1991; or

is at least 60 years old and—

has a disorder, illness or disease that affects the person’s thought processes, perception of reality, emotions or judgment or otherwise results in disturbed behaviour; or

has an impairment that—

is intellectual, psychiatric, sensory or physical in nature; and

results in a substantially reduced capacity of the person for communication, learning or mobility; or

for any other reason is socially isolated or unable to participate in the life of the person’s community.