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Sentence and Penalties


John Sutton

This section of our website contains information about the types of penalties – or sentences - that courts in Western Australia (WA) can impose.

It also explains the process courts must use to ensure that the appropriate sentence is imposed. The relevant legislation is the Sentencing Act 1995 (WA) (the Act). However, other Acts can also bear on the sentencing exercise. Unless otherwise stated, references to specific sections in this section relate to this Act.

The legislation which creates the various offences for which people can be charged provides guidance for sentencing, this can be in the form of such things as:

  • Minimum or maximum fines;
  • Minimum or maximum periods of imprisonment.

In summary, courts can only impose a sentence that is commensurate with the seriousness of the offence, the facts of the commission of the offence and the subjective features of the person committing the offence. This section lists the penalties which a court can impose. In order of least serious to most serious, these options are:

  • With or without making a spent conviction order, impose no sentence and order the release of the offender; or
  • With or without making a spent conviction order, impose a Conditional Release Order and order the release of the offender; or
  • With or without making a spent conviction order, impose a fine and order the release of the offender; or
  • With or without making a spent conviction order, impose a suspended fine; or
  • With or without making a spent conviction order, impose a Community Based Order and order the release of the offender; or
  • Impose an Intensive Supervision Order and order the release of the offender; or
  • Impose suspended imprisonment and order the release of the offender; or
  • Impose conditional suspended imprisonment and order the release of the offender; or
  • Impose a term of imprisonment to be served in custody.

The above list can be considered a sentencing hierarchy with the ultimate penalty – imprisonment – being at the top of that hierarchy. Pursuant to Section 39(3), when sentencing, a court can only impose a penalty where it is satisfied that it is not appropriate to impose a penalty which appears lower in the hierarchy. For example, a court can only impose a fine if it is satisfied that it would not be appropriate to impose a Conditional Release Order or an order that the person be released without a sentence being imposed.

To determine the seriousness, the courts must take into account:

  • The penalty stated in the Act which creates the specific offence; and
  • The circumstances in which the offence was committed, including the vulnerability of the victim if it is relevant; and
  • Any aggravating factors (factors which make the offence more serious); and
  • Any mitigating factors (factors which may lessen the overall seriousness of the offence).

WHAT IS AN AGGRAVATING FACTOR?

An aggravating factor is a factor which the court believes increases the culpability of the person being sentenced. There are certain factors which are NOT considered as aggravating:

  • Pleading not guilty to a charge; or
  • The fact that the person being sentenced has a criminal record; or
  • The fact that a previous sentence imposed on a person did not achieve what it was designed to do.

WHAT IS A MITIGATING FACTOR?

A mitigating factor is something which the court considers decreases the culpability of the person being sentenced or decreases the extent to which the person being sentenced should be punished.

The factors which could be considered mitigating are not limited. The court may take in account any relevant matter which is applicable to the circumstances of the person being sentenced.

Once the court has fully considered the matters mentioned it will impose a sentence which is appropriate to both the offence committed and the circumstances of the person being sentenced.



where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Perth: (08) 9321 5505
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