LawTalk Blog

How does the criminal court system decide what sentence to give?

criminal court sentencing in south australia

Criminal law sentencing can be a very complicated process and one which most members of the public do not properly comprehend. Sentencing principles are governed by a complex piece of legislation called the Criminal Law (Sentencing) Act, and this law is used by Magistrates and Judges in determining appropriate sentences for offenders.

A lot of us in the community often hear or read news reports about certain offenders receiving a specific sentence that we think is too low. This can cause outrage in the community. It’s not uncommon to hear phrases like:

  • I can't believe he was let off so easily;
  • The court will just give the criminal a slap on the wrists;
  • I can't believe he was given a suspended sentence - that person should rot in jail;
  • We should bring back the death penalty for criminals like that;
  • What’s wrong with these Judges – why are they so lenient?

Whilst community discussions about the criminal justice system are healthy, it is important to remember that out of the thousands of cases heard in court each year, the media only report on a few selected cases. Also, the media have a tendency to report on criminal sentences which they believe are too low, and this can inflame the community.

"A just, merciful and fair community cannot lock everyone up for decades over every crime."

We rarely hear about the other thousands of cases where the sentence was uncontroversial. It is rare to read newspaper headlines suggesting ‘The Judge got it right’ or ‘The sentence was extremely fair’. 

A just, merciful and fair community cannot lock everyone up for decades over every crime. Firstly, the law considers that prison should be considered an absolute last resort. Secondly, the corrections facilities could not cope with so much incarceration. But thirdly and more importantly, many studies have shown that prolonged incarceration has limited long term benefit for the community, fails to adequately assist with rehabilitation and often leads to a spiral of further offending once the individual is released from prison.

Of course the criminal law should impose sentences that punish the offender and deter them and others from similar offending, but the criminal law should also allow offenders an opportunity to rehabilitate and become good and contributing members of society.

Magistrates and Judges consider numerous factors in determining an appropriate sentence. Of course, not everyone will be pleased with the final outcome. The offender, the victim, the solicitors, the police and the community will probably all reach different conclusions about whether the final sentence imposed is fair. But we need to remember that the word ‘fairness’ is extremely subjective. What I consider fair might be considered utterly unfair by you.

Magistrates and Judges consider something called ‘precedent’. This is a legal principle that attempts to create consistency among similar matters. So if the Supreme Court has determined some sentencing rules for a particular type of offence, then the Judge or Magistrate should consider those rules when imposing sentence on offenders.

In addition, often medical reports are obtained to assist the Magistrates and Judge with sentencing. These reports often comment on the offender’s personal history, health problems including mental health, etc. This is helpful in assisting the Magistrate or Judge in deciding whether any leniency should be granted.

They also can hear or read ‘Victim Impact Statements’ where the victim has an opportunity to explain to the Court how the offending has impacted their life. Victim Impact Statements are strongly considered in the sentencing process. Magistrates and Judges also turn their mind to the defendant’s ‘antecedent history’ or criminal history. A clean criminal history often results in leniency, whereas a long and complex criminal history can lead to a harsher sentence.

"Importantly, defendants who plead guilty to offences earlier on in proceedings are entitled to reductions in their final sentence"

Importantly, defendants who plead guilty to offences earlier on in proceedings are entitled to reductions in their final sentence, and often this reduction can be significant.

Even when a sentence is handed down, it can still be appealed if the defendant believes it is too excessive. For example, if a Judge delivers a sentence of immediate custody, the defendant might appeal on the basis that the sentence of imprisonment should have been suspended. On the other hand, if the prosecution believe the sentence was too low or ‘manifestly inadequate’ it can file an appeal against the leniency of the sentence.

Other complex considerations should be given to the imposition of ‘convictions’. Sometimes matters can be finalised ‘without conviction’ but this is another issue that will not be discussed in this blog.

So the criminal sentencing process is very complicated. If you ever feel aggrieved by a specific sentence you hear about on TV, you may wish to go online to the relevant Courts website and try and gain access to the entire sentencing remarks to see all the various factors considered during the sentencing process.

Today’s article is written by Associate Michael Irvine.  Michael now practices in Civil Litigation and Employment Law.  He has previous experience in the field of criminal law.  If you have any queries or require assistance in criminal law, please feel free to get in touch directly with one of our lawyers practicing in that field; Toni Monteleone or Nes Alexandropoulos.


Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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