Author: Tim Conder
Published: 1 June 2022
Pages: 22

Introduction

For many, if not most, criminal defendants, their first concern when faced with a criminal charge is “what am I going to get for this.” For traditional criminal clients, this can be a particularly daunting concern – an 18 year-old facing a single charge of possessing 5.1 grams of class B methylenedioxy-methylamphetamine (MDMA) (just over the presumption of possession for supply) may well be served with a charging document that solemnly warns that the maximum penalty for the charge is life imprisonment – a misleading claim when the average defendant would expect community work for the same offending.
The reality is that for many defendants it is the possible punishment for a crime – rather than the conviction for it – that will assume central importance in their defence. This is one of the reasons why sentence indications can be such a powerful tool. It is also especially true for regulatory offences where for most defendants (or their insurers as the case may be) the question of how big a fine they will receive is of singular importance.
However, this one dimensional perspective on sentencing can be limiting. While a sentence is measured in terms of the final outcome, a good sentence, one that reflects well on the defence lawyer who has advocated for it, will have a number of constituent parts – each of which will ultimately bear on the sentence imposed.
This seminar follows the pattern of a criminal sentencing – as modelled by the leading decisions of Taueki, Hessell and Moses. It begins with principles and purposes of sentencing – to set the scene for the assessment to be done. This includes a consideration of the hierarchy of sentences, and in particular a consideration of discharges without conviction. It turns then to starting points, and in particular the sentencing facts that underpin them. Finally, it considers questions of mitigation – the personal circumstances that can justify a different response, and the avenues open to defendant’s to reduce the sentence that might otherwise be imposed.

 

Content outline

• What is a sentence?
• Starting points
• Pre-sentence reports

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