Factors Affecting a Sentencing Decision

Factors Affecting a Sentencing Decision: Aggravating And Mitigating Circumstances

The judge decides on a suitable punishment for individual offenders within the guidelines set by the Crimes (Sentencing Procedures) Act 1999 NSW and other legislation, Judges must take into account:

  • The maximum penalty
  • Legislation and judicial guidelines
  • Purpose of punishment
  • Aggravating circumstances
  • Mitigating circumstances
  • Victim impact statements

Weighing up these factors requires the exercise of judicial discretion

Aggravating Factors

These factors lead to a heavier sentence

  • Whether there was violence or the threat of violence
  • Whether there was a weapon used
  • Whether the crime was planned
  • The age and disability of the victim
  • Whether there was a relationship of trust with the victim
  • Whether the offender has a prior criminal record

Mitigating Factors

There factors lead to a reduction in the sentence

  • The offenders past good record
  • Good character
  • Circumstances surrounding the offence
  • Effect of the sentence of the offenders family
  • Cooperation with authorities
  • Signs of remorse
  • Guilty plea

Aggravating Circumstances

Mitigating Circumstances

Other Factors

· The victim was a public officer/worker carrying out their duties

· Use of, or the threat of harmful violence

· Previous criminal record

· Use of gratuitous violence

· Substantial emotional harm towards the victim

· It was a hate crime (i.e. based on race, gender, sexuality, disability, etc)

· There was an abuse of trust or authority

· The victim was vulnerable (i.e. child, disabled, elderly, etc)

· The damage was not substantial

· The offender was provoked

· It was an act of duress

· No previous criminal record

· Offender has a good character

· Unlikely to reoffend

· Wishes to rehabilitate

· Accused is remorseful

· The offender was unaware of the crime/circumstances of what they did; they were unable to understand (e.g. due to age or disability)

· Plea of guilt

· Gave assistance to law enforcement authorities

· Guideline sentences that should be followed

· The prescribed maximum and minimum penalty given under the relevant Act

· The existence of precedent

· The plea, if guilty, when it was admitted, and how much remorse is being demonstrated

· Any charge negotiation

· Any prior offences and sentences, particularly those with similar matters

· Any mental illness or disorder

· The community’s expectations in regard to the offence


Extract from Legal Studies Stage 6 Syllabus. © 2009 Board of Studies NSW.