Statutory And Judicial Guidelines

Statutory And Judicial Guidelines



· A judicial guideline is to reduce inconsistency in the judgements of trials

· The intention is to ensure that cases are treated alike i.e. the rule of precedence is upheld

· The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW):

  • Gives statutory force to the courts issuing guideline judgements in NSW

· Crimes (Sentencing Procedure) Amendment Act 2001 (NSW):

  • Gives the Court of Criminal Appeal the power to issue sentencing guidelines
  • Makes earlier, state-issued guidelines valid
  • Sets out general guidelines for the courts to use in sentencing offenders
  • The degree of weight place on aggravating and mitigating factors will be determined by each individual case

Maximum Penalties

– Crimes Act (1900) NSW

– Eg. anybody who is found guilty of assault occasioning actual bodily harm ‘shall be liable to imprisonment for 5 years

The Crimes (Sentencing Procedure) Act 1999 NSW

– Governs the way judges and magistrates determine sentences

There are many provisions:

– Must not impose a full time sentence without considering and rejection all possible alternatives

– Can impose a fixed term

– If the term is over 6 months then they can fix a non-parole and parole period

– Non Parole: minimum time to be spent in prison

– Parole: the time when the offender may no longer be imprisoned, and is free under supervision, usually a quarter of the total sentence

– Any sentence of 6 months or under must be fixed

Judicial Guidelines

– Issued by NSW Court of Criminal Appeal

– Not binding but help structure discretion

– Reduce inconsistency

– Guides judges by indicating the usual sentence imposed for certain offences

– 7 guidelines exist

– Crimes (Sentencing Procedure) Act 1999 NSW

– R V Jurisic (1998) NSW

Statutory Guidelines

– Issued by parliament clarifying how judges are to sentence

– Acts guiding exercise of judicial discretion:

The Crimes Act 1900 NSW

– Prescribes maximum penalties for different offences eg. murder= life manslaughter = 25 years

Crimes (Sentencing Procedure) Act 1999 NSW

– Identifies purpose of punishment and mitigating or aggravating circumstances of offence: left to judicial discretion to determine

– Prescribes minimum sentence for certain offences eg. aggravated sexual assault in company = 15 years

Mandatory sentencing

– Refers to the practice of some parliaments of legislation for a particular sentence for a particular crime

– Takes away the exercise of judicial discretion

– The court has no choice but to impose the legislated sentence

Amendments to the Crimes (Sentencing Procedures) Act 1999 NSW have:

– Prescribed non parole and parole periods

– Allowed judges and magistrates to take into account aggravating and mitigating circumstances


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