After a guilty plea or finding of guilt, the Court sentences offenders for offences. While the sentencing exercise for all offences are guided by the purposes of sentencing pursuant to section 3A Crimes (Sentencing Procedure) Act 1999, common law and case law, the article will focus on what Courts consider when sentencing offenders for sexual assault offences.
The prescribed maximum penalty of the offence
The legislation which creates the offence also provides for the maximum penalties, and, where applicable, standard non-parole periods, which are important guideposts in the sentencing exercise to which the Courts have regards to.
Facts of the offence
The Court will undertake a fact-finding exercise prior to determining sentence. According to sexual assault lawyers, matters in aggravation of the offence must be proved beyond reasonable doubt while, as to matters in mitigation, the Court only need to be satisfied on the balance of probabilities.
Objective seriousness
In sentencing for sexual assault offences, the Court will consider the objective seriousness of the offence. In such offences, while the type of penetration, whether it be penile or digital or some other type, is relevant, there is no hierarchy of different forms of penetration. This being just one factor to be taken into account in assessing the objective seriousness of a particular offence.
The Courts also consider other matter, including the duration of the offence, any humiliating features, any violence or injury or threats, as well as other matters also will be relevant.
Section 21A Crimes (Sentencing Procedure) Act 1999 provides for the statutory aggravating and mitigating factors to be considered, when applicable, in assessing the objective seriousness of the offences.
When sentencing offenders for sexual offences, the Courts also consider victim impact statements.
Subjective matters
The Courts will consider factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment.
The Court will also consider the offender’s criminal history, background, education, employment and any such matters it thinks relevant.
After considering all the matters above which the Court often refer to sentence synthesis, the Court imposes a sentence.
If the Court imposes a custodial sentence, then the Court considers the non-parole period. The Court can vary the non-parole period if they make a fining of special circumstances. The following has been held to amount to special circumstances to vay non parole periods:
- First time in custody,
- Youth or old age of the offenders,
- Health of the offender,
- Mental health of the offender.
A custodial sentence is the most usual outcome when the Courts sentence offenders for sexual assault offences with a non-custodial sentence only. It is ordered by the NSW District Courts in the most exceptional of cases.
Statistics collected by the Judicial Information Research System shows that between September 2018 and September 2023. The District Courts passed sentence for 360 sexual assault offences. It results in 93.9% jail sentences.
The author of this article is a sexual assault lawyer In this article, he discusses factors the Courts consider when sentencing offenders for sexual assault.
