SENTENCING ACT 1995 - SECT 5 Sentencing guidelines

SENTENCING ACT 1995 - SECT 5

    (1)     The only purposes for which sentences may be imposed on an offender are the following:

        (a)     to punish the offender to an extent or in a way that is just in all the circumstances;

        (b)     to provide conditions in the court's order that will help the offender to be rehabilitated;

        (c)     to discourage the offender or other persons from committing the same or a similar offence;

        (d)     to make it clear that the community, acting through the court, does not approve of the sort of conduct in which the offender was involved;

        (e)     to protect the Territory community from the offender;

        (f)     a combination of 2 or more of the purposes referred to in this subsection.

Note for subsection (1)(e)

This includes the protection of any person who is in a family relationship or a domestic relationship with the offender.

    (2)     In sentencing an offender, a court must have regard to:

        (a)     the maximum and any minimum penalty prescribed for the offence; and

        (b)     the nature of the offence and how serious the offence was, including any physical, psychological or emotional harm done to a victim; and

        (ba)     if the offence is a sexual offence:

            (i)     whether the victim contracted a sexually transmissible medical condition as a result of the offence; and

            (ii)     whether the offender was aware at the time of the offence that he or she had a medical condition that could be sexually transmitted; and

        (c)     the extent to which the offender is to blame for the offence; and

        (d)     any damage, injury or loss caused by the offender; and

        (da)     any harm done to a community as a result of the offence (whether directly or indirectly); and

        (e)     the offender's character, age and intellectual capacity; and

        (f)     the presence of any aggravating or mitigating factor concerning the offender; and

        (g)     the prevalence of the offence; and

        (h)     how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

        (ha)     the conduct of the offender during the proceedings, including the extent to which the offender complied with a requirement imposed on the offender under Part IV, Division 2A of the Local Court (Criminal Procedure) Act 1928 ; and

        (j)     whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

        (k)     time spent in custody by the offender for the offence before being sentenced, including time the offender resided at a specified place in accordance with a conduct agreement under the Bail Act 1982 that contained a provision mentioned in section 27A(1)(iaa), (iab) or (ia) of that Act; and

        (m)     sentences imposed on, and served by, the offender in a State or another Territory of the Commonwealth for an offence committed at, or about the same time, as the offence with which the court is dealing; and

        (n)     sentences already imposed on the offender that have not been served; and

        (p)     sentences that the offender is liable to serve because of the revocation of orders made under this or any other Act for contraventions of conditions by the offender; and

        (q)     if the offender is the subject of a community correction order or an intensive community correction order, the offender's compliance with the order; and

        (r)     anything else prescribed by this Act to which the court is required to have regard; and

        (s)     any other relevant circumstance.

    (3)     For subsection (2)(ba):

        (a)     a certificate by a medical practitioner that a person has (or had at a stated time) a sexually transmissible medical condition is evidence of the existence of that condition; and

        (b)     the contraction by the victim of the medical condition is to be taken to be a result of the offence if:

            (i)     a certificate is tendered that the offender had at the relevant time a sexually transmissible medical condition; and

            (ii)     evidence is given that the victim contracted the medical condition at a time that is consistent with the medical condition being transmitted from the offender.

    (3A)     Despite subsection (2)(e), in sentencing an offender for an offence against Part V, Division 2 or Part VIA of the Criminal Code, a court must disregard the good character of the offender if:

        (a)     the person against whom the offence was committed was, at the time the offence was committed, under 18 years of age; and

        (b)     the court is satisfied that the offender's alleged good character was of assistance to the offender in the commission of the offence.

Examples for subsection (3A)(b)

1     The offender's good character was one reason the offender was selected to supervise children at a camp. The offender began to establish a relationship with children at the camp to obtain their compliance in sexual activities.

2     A child's parent trusted the offender to care for the child because of the offender's authority in their community. The offender held authority in the community in part due to the offender's good character. The offender sexually abused the child including while the child was in the offender's care.

    (4)     In sentencing an offender, a court:

        (a)     may have regard to any co-operation by the offender in resolving any action taken against the offender under the Criminal Property Forfeiture Act 2002 in relation to the offence or offences for which the offender is being sentenced; and

        (aa)     may have regard to a forfeiture order under the Liquor Act 2019 to the extent that the property that is subject to the order relates to the offence or offences for which the offender is being sentenced; and

        (b)     may have regard to a forfeiture order under the Criminal Property Forfeiture Act 2002 to the extent that the order relates to property that is crime-used property (within the meaning of that Act) in relation to the offence or offences for which the offender is being sentenced; and

        (c)     must not make any allowance for any other property that has been or may be forfeited to the Territory by operation of the Criminal Property Forfeiture Act 2002 or in any proceedings under that Act in which the offender is, was or may be a respondent.

    (5)     In addition to subsections (2) and (4), in sentencing an offender in relation to an offence that involves domestic violence, a court must have regard to whether there is an unacceptable risk that the offender may commit domestic violence against a person.

    (6)     If the court is satisfied there is an unacceptable risk that the offender may commit domestic violence against a person, in sentencing the offender in relation to the offence that involves domestic violence, the court must:

        (a)     have regard to whether making an order in relation to the offender, including whether a condition of the order, would mitigate any unacceptable risk of the offender committing domestic violence against a person; and

        (b)     have regard to whether a domestic violence order should be made against the offender to mitigate any unacceptable risk of the offender committing domestic violence against a person; and

        (c)     if the court makes a domestic violence order against the offender – ensure any order or a condition of the order is consistent with any conditions of the domestic violence order; and

        (d)     if a domestic violence order is in force against the offender at the time of the sentencing:

            (i)     have regard to whether any conditions or the duration of the order should be varied; and

            (ii)     ensure any order or a condition of the order is consistent with any conditions of the domestic violence order.