Sentencing Process

SENTENCE AND PENALTIES

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 (WA) 1995 (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.

 Pursuant to S.39(3), in determining which of the above penalties to impose, a Court can only impose a penalty where it is satisfied that it is not appropriate to impose a penalty which appears previously in the list.  For example, A Court can only impose a term of imprisonment when it is satisfied that no other option previously listed is appropriate.

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).

s.7 – 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 someone did not achieve what is was designed to do.

s.8 – 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.

Spent Conviction Orders (SCO)

An SCO has the effect of removing a conviction from a person’s record.  This means that once such an order has been made it is as though the person was not convicted of the offence.  For example, once such an order has been made, a person does not need to declare that offence if asked if they have been convicted of an offence in Western Australia.  The law stipulates that someone cannot be discriminated against on the basis that they have been granted an SCO.

An SCO order can be made in two ways which are described below.

S.45 Spent Conviction Orders – at Time of Sentencing

A person found guilty of a crime in Western Australia will be convicted of that offence unless the Court makes – at the time of sentencing – an SCO.  Such an order can only be made by the Court if it believes the person is unlikely to commit such an offence again, they are of previously good character and that it considers the person should not suffer the adverse effects of a conviction.  In any such consideration the Court must consider the offence to be trivial in the circumstances.  Such an order can only be made at the time of sentencing if the Court is imposing a:

  • Release without conviction order; or
  • Conditional release order; or
  • Fine or suspended fine; or
  • Community based order.

Spent Conviction Orders – Applications to Have Previous Convictions Spent

The relevant Act for this section is the Spent Convictions Act 1988 (WA).

This Act does not apply to someone who was sentenced to life imprisonment.

If a person is convicted of an offence and either:

  • The Court did not make an SCO at the time of sentencing; or
  • The sentence was for an offence for which a Court could not make an SCO at the time of sentencing;

a person may apply to A District Court judge or the Commissioner of Police for an SCO.  Whether the person applies to a District Court judge or the Commissioner of Police depends on whether the conviction is considered a:

  • Serious conviction; or
  • Lesser conviction.

S.6 Serious Conviction

A serious conviction is a conviction where the sentence imposed was:

  • Imprisonment for more than one year or for an indeterminate period; or
  • A fine of $15,000 or more.

An application for an SCO for a conviction for a serious offence must be made to a District Court judge.  A person may make an application for an SCO if:

  • The prescribed period for that offence has elapsed; and
  • They have not been refused an SCO for the same conviction within the last two years.

The prescribed period for most serious convictions is calculated as ten years plus any period of imprisonment “reckoned”.  The prescribed period is three years if the conviction was for:

  • Possession of drug paraphernalia where there was cannabis in or on it; or
  • Possession or use of cannabis, but not where the charge related to cultivation of cannabis, cannabis resin or any other cannabis derivative; and
  • The conviction was not before the commencement of the Cannabis Law Reform Act 2010.

Where a person was sentenced for an indeterminate period, the ten years commences on the date the person is discharged from that sentence and the period of imprisonment reckoned is the period the person actually served.  In other cases, the ten years commences on the day the conviction was imposed and the term of imprisonment reckoned is the term actually imposed by the Court, regardless of the term actually served.

If a person has a previous conviction for which an SCO has not been granted, the prescribed period will apply to the new conviction and the old conviction.  The period will be calculated as the longer prescribed period for all convictions.  The prescribed period will then apply from the date of the latest conviction.  Further, if a person is sentenced to a term of imprisonment to be served cumulatively on a sentence that was imposed previously, the new term of imprisonment will be added to the prescribed period for the previous conviction.

S.7 Lesser Conviction

A lesser conviction is any conviction which is not defined as a serious conviction.  However, a lesser conviction for which an SCO has not been made becomes a serious conviction for the purposes of this Act if the person is subsequently convicted of another offence which is considered a “serious conviction” or sentenced to life imprisonment.

A person can apply to the Commissioner of Police for an SCO for a lesser conviction.

PENALTIES

Courts in WA can impose the following penalties (click on any of these penalty types to read information about that penalty):

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S.46 Release Without Sentence

In some cases a Court may decide not to impose a sentence for an offence.  This is quite rare and will only occur where the Court considers that the circumstances of the offence are trivial or technical and that it would not be just to impose a penalty having regard to:

  • The general character, history, age, health and mental condition of the person being sentenced; and
  • Any other matter that the Court thinks is relevant to consider.

S.47 Conditional Release Orders

A Conditional Release Order (CRO) can be imposed by a Court in order to secure the good behaviour of a person who has been found guilty of an offence.

A Court may impose a CRO where:

  • the Court reasonably expects that the person being sentenced will not re-offend during the term of the CRO; and
  • The person being sentenced does not require supervision by a Community Corrections Order during the period of the order.

A Court can impose conditions that must be complied with as part of a CRO.  A Court can impose any conditions that it believes are necessary to ensure the good behaviour of the person.  These conditions; however, cannot include:

  • Conditions which require supervision or direction by a Community Corrections Officer; or
  • Orders for restitution or compensation.  A Court can make a separate reparation order, but it cannot make it a condition of the CRO.

A Court can require someone to re-appear before the Court during the period of the CRO to ensure that the order is being complied with.  A Court may also order that a person provide a written undertaking to forfeit an amount of money if they fail to comply with a CRO.  A surety nominated by the person can give this undertaking on their behalf.

S.131 Breaching a CRO

A person granted a CRO, must not commit any further offences during the period for which it is current.  If a person does commit further offences, they breach the CRO and the Court has the following options if the CRO is still current:

  • Take no action in relation to the breach of the CRO; or
  • Amend the conditions of the CRO; or
  • Cancel the CRO and re-sentence the person for the original offence.

If the CRO has lapsed the Court can re-sentence the person for the original offence.

It is also a separate offence to breach a CRO.  This means that in addition to the above options, the Court can impose a fine of up to $1000.00 for breaching the CRO.

S.53 Fines

A Court can impose fines as a penalty.  This means that you pay an amount of money to the Court.

The relevant legislation will generally state if a fine is a sentencing option for the Court and will also often set a minimum or maximum amount of the fine.

When a Court is determining the amount of the fine to be imposed, it must consider;

  • The ability of the person to pay the fine; and
  • How much of a burden the fine will be on the person.

If a Court orders that the person pay compensation to the victim, a Court cannot impose a fine as well if that would result in the person being unable to pay the fine within a reasonable time.

Sometimes, if a person is fined for an assault, the victim of the assault can be awarded part or all of the fine.

S. 57 What happens if a fine is not paid?

When someone does not pay a fine imposed the fine can be enforced in several ways including;

  • Suspending your driver’s licence; or
  • Referring the matter to the Sheriff who can take steps such as seizing and selling personal property in satisfaction of the fine amount.

If someone is fined by the District or Supreme Court, pursuant to S.59, the Court may order that a person be imprisoned for non-payment of a fine.  That person will be imprisoned until:

  • The fine is paid in full; or
  • The person serves a term of imprisonment calculated by the amount of the fine; or
  • If the person pays part of the fine, a term of imprisonment calculated by the amount of the fine that was unpaid.

S.57A Work and Development Order (WDO)

A WDO can be imposed by the Court in some circumstances where a person is not in a position to be able to pay a fine.  Such an order requires the person to perform work in the community in lieu of payment of a fine. 

The Court can only order a WDO when:

  • The person is present in Court; and
  • The person gives evidence to the Court which satisfies the Court that:
    • They do not have the ability to pay the fine and will not have that ability in the near future; and
    • They do not hold a driver’s licence; and
    • They do not have personal property which could be seized and sold; and
    • Will be unlikely to have any personal property which could be seized within a reasonable time; and
    • They are physically and mentally capable of performing the requirements of a WDO; and
  • The person is either disqualified from holding a driver’s licence or is not the holder of a driver’s licence; and
  • The Court is satisfied that a licence suspension order would be unlikely to result in the fine being paid within a reasonable time.

A WDO can only be made at the time of sentencing and not in later proceedings.

S.58 Imprisonment until fines are paid.

In some situations, a Court may imprison a person until a fine is paid.  These circumstances are:

  • The Court imposes a fine for an indicatable offence for which the relevant Act provides that imprisonment is a sentencing option; or
  • The Court is satisfied the person is:
    • About to leave Western Australia; and
    • Their absence from Western Australia would prevent or seriously prejudice the means by which a fine can be enforced.

S.60A Suspension of fines

A Court may order that a fine be suspended.  This means that payment does not need to be made unless:

  • The person commits another offence during the suspension period; and
  • The Court makes an order.  This order can:
    • Impose the whole of the amount of the suspended fine; or
    • Impose part of the suspended fine; or
    • Order a further period for which the fine is to be suspended; or
    • Make no order in relation to the fine.

If a fine is suspended and the person does not re-offend during the suspension period, they are discharged from sentence at the end of that period.

S.61 Community Based Orders

A Community Based Order (CBO) can be imposed by a Court for between six and 24 months.  The primary intention of a CBO is to address the person’s rehabilitation to prevent further offending by assessing and treating factors which contributed to the offending behaviour.  As the name suggests, a person remans in the community if they are subject to a CBO.

If a person commits further offences when they are subject to a CBO they can be re-sentenced by the Court for the original offence.

A CBO must have at least one of the following conditions:

  • Supervision by a Community Corrections Officer (CCO); or
  • A programme requirement designed to address any identified issues that relate to the person charged; such as drug or alcohol counselling; or
  • A community service requirement: this requires the person to do unpaid community work. The Court can impose between 10 and 120 hours of such work.

There are also some standard conditions which apply to CBO’s.  The person must:

  • Report to a community correction centre within 72 hours; and
  • Notify a CCO of any change of address or employment within 2 days; and
  • Remain in Western Australia unless granted permission to do so by Corrections; and
  • Comply with any legal directions or requirements which are relevant to the completion of requirements under the CBO.

S.131 Breaching a CBO

A person granted a CBO must not commit any further offences during the period for which it is current.  If a person does commit further offences, they breach the CBO.  A person who does not comply with any of the conditions imposed also breaches the CBO.  Where someone has breached a CBO the Court has the following options if the CBO is still current:

  • Take no action in relation to the breach of the CBO; or
  • Amend the conditions of the CBO; or
  • Cancel the CBO and re-sentence the person for the original offence.

If the CRO has lapsed the Court can re-sentence the person for the original offence.

It is also a separate offence to breach a CRO.  This means that in addition to the above options, the Court can impose a fine of up to $1000.00 for breaching the CRO.

S.69 Intensive Supervision Orders

A Court may impose an Intensive Supervision Order (ISO) if a pre-sentence report is completed which indicates that the person is suitable for such an order. 

An ISO allows the person to remain in the community and is similar to a Community Based Order but has more stringent conditions.

All ISO’s contain a supervision requirement which is designed to rehabilitate the person and to ensure that they comply with any direction given by the Court as part of the ISO.

There are several standard obligations under an ISO.  The person subject to the order must:

  • Must report to a community correction centre within 72 hours; and
  • Not change their address or place of employment without prior permission of a Community Corrections Officer; and
  • Remain in Western Australia unless granted permission to do so by Corrections and in accordance with any conditions the CEO of Corrections imposes; and
  • Comply with any legal directions or requirements which are relevant to the completion of requirements under the ISO; and
  • Contact or receive contact from a Community Corrections Officer as ordered by the Community Corrections Officer.

An ISO may also contain, at the discretion of the Court, any or all of the following conditions:

  • A programme requirement designed to address any identified issues that relate to the person charged; such as drug or alcohol counselling; or
  • A community service requirement: this requires the person to do unpaid community work. The Court can impose between 40 and 240 hours of such work; or
  • A curfew requirement which will involve remaining at a specified place between specified times to allow for the restriction of movement of the person.  This requirement may includde surveillance and/ or monitoring.  Such a requirement can be subjected to specific conditions as determined by a Community Corrections Officer.

S.131 Breaching an ISO

A person granted an ISO must not commit any further offences during the period for which it is current.  If a person does commit further offences, they breach the ISO.  A person who does not comply with any of the conditions imposed also breaches the ISO.  Where someone has breached an ISO the Court has the following options if the ISO is still current:

  • Take no action in relation to the breach of the ISO; or
  • Amend the conditions of the ISO; or
  • Cancel the ISO and re-sentence the person for the original offence.

If the ISO has lapsed the Court can re-sentence the person for the original offence.

It is also a separate offence to breach an ISO.  This means that in addition to the above options, the Court can impose a fine of up to $1000.00 for breaching the ISO.

S.76 Suspended Imprisonment

Suspended imprisonment is where a person is sentenced to a term of imprisonment but is not required to be imprisoned.  Instead, the person is not required to serve any part of the suspended term of imprisonment unless – during the suspended term – they commit a further offence which is also punishable by imprisonment.

A Court cannot impose a suspended term of imprisonment unless an actual term of imprisonment equal to the suspended term imposed would be appropriate in the circumstances of the offending.  A Court is also prevented from imposing a suspended term of imprisonment if:

  • The offence was committed when the person was the subject of an early-release order: early-release orders include:
    • Parole orders;
    • Home detention orders; and
    • Work release orders.

At the end of the suspension period, the person is discharged from the sentence.  This means no further penalty can be imposed.

S.80 Breaching a term of suspended imprisonment

If a person commits another offence punishable by imprisonment during the period of suspension, a Court who convicts the person of that offence must also deal with the person for breaching the suspended imprisonment.  Even if the further reoffending is committed in another State, the Western Australian Court can issue a summons or a warrant to have the person brought before the WA Court.

The Court has five options available when dealing with a person who has breached a suspended term of imprisonment.  The Court can:

  • Order the person serve the whole of the term of imprisonment that was imposed; or
  • Order the person to serve part of the term of imprisonment that was imposed; or
  • If the suspension period is still current, order that the term of imprisonment be substituted for a further period of suspension.  This further period of suspension can be up to 24 months; or
  • Impose a fine of not more than $6000 and make no order in relation to the suspended imprisonment; or
  • Make no order in relation to the suspended imprisonment but only if it decides it would be unjust in all the circumstances to make one of the above orders.  This only relates to circumstances that have arisen or become known since the original suspended imprisonment was imposed.

S.81 Conditional Suspended Imprisonment

Conditional suspended imprisonment orders (CSI) are almost identical to Intensive Supervision Orders (ISO).

A Court cannot impose a CSI unless an actual term of imprisonment equal to the conditionally suspended term imposed would be appropriate in the circumstances of the offending.  A Court is also prevented from imposing a CSI if:

  • The offence was committed when the person was the subject of an early-release order: early-release orders include:
    • Parole orders;
    • Home detention orders; and
    • Work release orders.

At the end of the suspension period, the person is discharged from the sentence.  This means no further penalty can be imposed.

A CSI order can only be made by a “prescribed Court”.  These Courts are:

  • The Supreme Court;
  • The District Court;
  • The Childrens’ Court; or
  • A specialty Court.  There are several specialty Courts and include ;
    • Drug Court;
    • Family Violence Court; and
    • The Intellectual Disability Diversion Program.

All CSI’s contain a supervision requirement which is designed to rehabilitate the person and to ensure that they comply with any direction given by the Court as part of the CSI.

There are several standard obligations under a CSI.  The person subject to the order must:

  • Must report to a community correction centre within 72 hours; and
  • Must notify Community Corrections of any change of address or employment – usually – within two days; and
  • Remain in Western Australia unless granted permission to do so by the specialty Court or Community Corrections; and
  • Comply with any legal directions or requirements which are relevant to the completion of requirements under the CSI; and

A CSI must also contain, at the discretion of the Court, at least one of the following conditions:

  • A programme requirement designed to address any identified issues that relate to the person charged; such as drug or alcohol counselling; or
  • A community service requirement: this requires the person to do unpaid community work. The Court can impose between 40 and 240 hours of such work; or
  • A curfew requirement which will involve remaining at a specified place between specified times to allow for the restriction of movement of the person.  This requirement may be subjected to surveillance and/ or monitoring.  Such a requirement can be subjected to specific conditions as determined by a Community Corrections Officer.

S.84F Breaching a Conditional Suspended Imprisonment order

If a person commits another offence punishable by imprisonment during the period of suspension, a Court who convicts the person of that offence must also deal with the person for breaching the CSI.  Even if the further reoffending is committed in another State, the Western Australian Court can issue a summons or a warrant to have the person brought before the WA Court.

The Court has five options available when dealing with a person who has breached a CSI.  The Court can:

  • Order the person serve the whole of the term of imprisonment that was imposed; or
  • Order the person to serve part of the term of imprisonment that was imposed; or
  • If the suspension period is still current, order that the term of imprisonment be substituted for a further period of suspension.  This further period of suspension can be up to 24 months; or
  • Impose a fine of not more than $6000 and make no order in relation in relation to the suspended imprisonment; or
  • Make no order in relation to the suspended imprisonment but only if it decides it would be unjust in all the circumstances to make one of the above orders.  This only relates to circumstances that have arisen or become known since the original suspended imprisonment was imposed.

S.86 Imprisonment

A sentence of imprisonment means that you will be required to serve that term in a correctional facility.

A term of imprisonment cannot be imposed for a period of less than six months unless;

  • The aggregate of the term imposed and any other terms of imprisonment imposed total more than six months; or
  • The person is already serving or is yet to serve another term of imprisonment; or
  • The term of imprisonment is imposed for an offence under section 79 of the Prisons Act.

If a person has been held on remand prior to being sentenced to a term of imprisonment, the Court may order that period be taken into account by either reducing the sentence imposed or ordering that the imprisonment commenced at the time the person was remanded into custody.

A person sentenced to imprisonment will serve that sentence concurrently (at the same time as) any other period of imprisonment they are serving or are yet to serve unless the Court orders otherwise.

If more than one term of imprisonment is imposed at the same time, the person will serve those sentences concurrently unless the Court orders otherwise.

A sentencing Court may order that a sentence of imprisonment be served cumulatively (in addition to) upon any other term of imprisonment the person is serving, yet to serve or sentenced to at the same time.  Such an order may stipulate that the whole or part of the sentence is to be serve cumulatively on other sentences.

S.93 Parole

Parole is a conditional release from prison prior to the expiry of a sentence of imprisonment imposed by a sentencing Court.  In most cases where a person is sentenced to imprisonment – for more than six months – the Court may order that the person be eligible for parole after a stipulated period (parole release order).

A Court may decide not to make a parole release order if one or more of the following factors exist:

  • The offence was serious; or
  • The person has a significant criminal history; or
  • The person, when released from custody under a release order made previously, did not comply with the order; or
  • Any other reason the Court considers is relevant.
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