A National Curriculum for Australian Judicial Officers
UNIT 06

Unit Six Sentencing

In This Section

A National Curriculum

Rationale

The judicial role can involve the sentencing of offenders. In this aspect judicial officers must make decisions to sentence appropriately. This includes both an understanding of the law, principles, and purposes of sentencing.

A judicial officer should also understand the role of judicial discretion in the sentencing process, as well as the different priorities and considerations for different offenders. Alternative sentencing processes are also an important component of the criminal justice system.

A National Curriculum

Application of the Core Dimensions

Application of the Core Dimensions

Substantive and Procedural Law

Programs developed in this unit will consider substantive and procedural requirements for sentencing.

Application of the Core Dimensions

Judge Craft Skills

Programs should consider how judge-craft skills are relevant to learning outcomes developed for this unit. Both judge-craft skills and judicial management and administration skills will be relevant.

Application of the Core Dimensions

Attitudes and Values

Judicial discretion is a significant component of the sentencing process. Programs developed under this unit should have regard to how the values, attitudes and background of a judicial officer shapes their perspective on offences, offenders, sentence type and alternatives to sentencing.

Application of the Core Dimensions

Social Context

The administration of criminal justice, and in particular, sentencing, requires an understanding of the social context of the offender, as well as developments in social values or public policy relevant to sentencing offenders. Programs should consider how this dimension can be incorporated into programs under this unit.

A National Curriculum

Core Judicial Qualities

Core Judicial Qualities

Independence

The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions.

Core Judicial Qualities

Impartiality

This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making

Core Judicial Qualities

Fairness

Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias

Core Judicial Qualities

Accountability

open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles.

Core Judicial Qualities

Efficiency

Ensuring the reasonably timely resolution of cases.

Core Judicial Qualities

Transparency

Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible.

Core Judicial Qualities

Competency

Having sound knowledge of the relevant law and procedure as well as good court craft skills

Core Judicial Qualities

Integrity

Displaying intellectual honesty, respect and placing the obligations of judicial office above personal interests both inside and outside the courtroom.

Core Judicial Qualities

Courage

Doing justice according to law irrespective of the consequences or popularity of the decision

Core Judicial Qualities

Compassion

Compassion involves recognising the suffering of others and wanting to alleviate it. Within the constraints of the law, judicial officers can show compassion through procedural fairness, judicial engagement (exploring underlying issues and empowering a party to address them) and other therapeutic jurisprudence practices.

A National Curriculum

Judicial Learning Units

Aim

These programs help judicial officers to sentence offenders appropriately.

Aim

These programs help judicial officers to prepare written reasons for sentence and provide guidance on the practical challenges of crafting written reasons for sentence.

Scope

These programs could encompass –

  • When to reserve
  • Finding the facts
  • Addressing the relevant considerations
  • Other aspects from the general sentencing program that affect preparing written reasons
  • The balance between the competing demands of enunciating the sentencing comments required by law and communicating with the person who is being sentenced
  • Communication in court, including body language, eye contact, presentation skills, plain English, communicating with children, communicating with the culturally and linguistically diverse, communicating with the intellectually disabled
  • Therapeutic jurisprudence, ie. using the sentencing process in a therapeutic way to trigger change and understanding in the offender

Aim

These programs help judicial officers to deliver effective oral sentencing remarks.

Scope

These programs could encompass –

  • Use of templates or checklists as an aid to oral sentencing
  • The balance between the competing demands of enunciating the sentencing comments required by law and communicating with the person who is being sentenced
  • Communication in court, including body language, eye contact, presentation skills, plain English, communicating with children, communicating with the culturally and linguistically diverse, communicating with the intellectually disabled
  • Therapeutic jurisprudence, ie. using the sentencing process in a therapeutic way to trigger change and understanding in the offender
  • Determining what information the judicial officer needs about the offender and the offence to sentence effectively

Aim

These programs help judicial officers to sentence young offenders skilfully and appropriately.

Scope

These programs could encompass –

  • Special legislation
  • Information on child development
  • Understanding the interaction between family issues and offending
  • Sentencing of parents for child offending, including compensation orders
  • Special programs for child offenders
  • Communication skills for addressing children
  • Assessing pre-sentence assessments and reports
  • Psychiatric and psychological assessments
  • Alternatives to sentencing
  • The balance between the competing demands of enunciating the sentencing comments required by law and communicating with the person who is being sentenced
  • Communication in court, including body language, eye contact, presentation skills, plain English, communicating with children, communicating with the culturally and linguistically diverse, communicating with the intellectually disabled

Therapeutic jurisprudence, ie. using the sentencing process in a therapeutic way to trigger change and understanding in the offender

Aim

These programs help judicial officers to work with community elders to sentence Aboriginal and Torres Strait Islander people appropriately.

Scope

These programs could encompass –

  • Legislative requirements
  • Court rules and practice directions relevant to the process
  • Purpose, principles and theory underlying circle sentencing
  • Scope of the role of participants in circle sentencing
  • Circle sentencing pre-hearing and hearing processes
  • Cultural sensitivity and competency
  • Special considerations for young offenders and circle sentencing
  • Principles of restorative justice
  • Rehabilitation pathways
  • Family and community involvement and liaison
  • The balance between the competing demands of enunciating the sentencing comments required by law and communicating with the person who is being sentenced
  • Communication in court, including body language, eye contact, presentation skills, plain English, communicating with children, communicating with the culturally and linguistically diverse, communicating with the intellectually disabled
  • Therapeutic jurisprudence, ie. using the sentencing process in a therapeutic way to trigger change and understanding in the offender