DPP HOME PAGE
OFFICE LOCATIONS
ROLE OF THE DPP
EMPLOYMENT

GUIDELINES
WITNESS ASSISTANCE
ABORIGINAL SUPPORT
CASE SUMMARIES
PROVISION OF INTERPRETERS
PROGRESS OF A TYPICAL MATTER FROM CHARGE TO TRIAL
 
 
 

16

Sentence
   
16.1 The prosecution has an active role to play in the sentencing process.
   
16.2 It is the duty of the prosecutor to:
   
  (1) inform the court of all relevant circumstances of the case. This will always include a careful presentation of Crown facts. Often it will also be appropriate to tender various materials including for example, the post-mortem report, medical reports, photographs, victim’s (or other witnesses’) statements, physical exhibits, and/or transcript of record of interview;
  (2) inform the court of any relevant authority or legislation relevant to the appropriate sentence;
  (3) provide an appropriate level of assistance on the sentencing range, including whether or not a custodial sentence is called for. It is not appropriate for a prosecutor to suggest or recommend a specific sentence;
  (4) assist the court to avoid appellable error on the issue of sentence. If it appears there is a real possibility that the court may make a sentencing order that would be inappropriate and not within a proper exercise of the sentencing discretion, then the prosecutor must make submissions on that issue – particularly where a custodial sentence is appropriate and the court is contemplating a non-custodial penalty; and
  (5) fairly test the opposing case.
   
16.3 The prosecution has a duty to do all that reasonably can be done to ensure that the court acts only on truthful and accurate information. Vigilance is required not just in the presentation of the Crown case but also in the approach taken to the defence case. Where facts are asserted on behalf of a convicted person which are contrary to the prosecutor’s instructions or understanding, the prosecutor should press for a trial of the disputed issues (if the resolution of such disputed facts is in the interests of justice or is material to sentence). Opinions, their underlying assumptions and factual bases should be scrutinised for reliability and relevance. If the prosecutor has been given insufficient notice of defence material and cannot properly consider the Crown’s position, an adjournment should be sought in order to obtain instructions or to request that police investigate the material.
   
16.4 A prosecutor is entitled to request from the defence that the maker of a statement be called. Where the defence refuses to call the maker, the Crown may oppose the tender of the statement.
   
16.5 Sections 106A and 106B Sentencing Act impose obligations on the prosecutor to present victim impact statements/reports. Prosecutors should be familiar with the legislation and the application of Guideline 11: Witness Assistance Service.
   
16.6 The prosecution must ensure that any criminal history tendered is current as at the date of sentence. A prosecutor must be aware of the legislative provisions of sections 32, 33 and 33A Evidence Act, in the event the history is disputed.
   
16.7 The Police Warrants and Information Bureau will not forward an interstate history unless it is expressly ordered. Judgement about whether an out of state search should be conducted will depend upon the nature of the present offences and any information or suspicion that the offender had been interstate. For example:
   
  (1) a trivial or minor property offence would not normally justify an interstate search; however
  (2) an offence of personal violence by a mature aged person who has lived interstate would suggest a full search should be made.
   
16.8 A prosecutor should not in any way fetter the discretion of the Director to appeal against the inadequacy of a sentence (including informing the court or the defence whether or not the Director would, or would be likely to, appeal, or whether or not a sentence imposed is regarded as appropriate and adequate). The Director’s instructions may be sought in advance in exceptional cases.
   
16.9 Prosecutors must be familiar with all aspects of the Sentencing Act.
   
16.10 Co-operation by convicted persons with law enforcement agencies should be appropriately acknowledged and, if necessary, tested at the time of sentencing - Guideline 19: Informers.
   
16.11 Prosecutors should be aware that an informer’s identity may be kept confidential: section 24 Misuse of Drugs Act and Guideline 19: Informers.
   
16.12 Prosecutors should be aware of the legislative provision of section 107 Sentencing Act concerning offences that may be taken into account on a Form 6 schedule (Disposal of Other Pending Charges). The decision to place offences on a Form 6 should be based on principle and reason, not administrative expedience alone. A balance is to be struck between the number of counts on the indictment and the schedule. Excessive counts on the indictment can make sentence proceedings unduly lengthy and complex. On the other hand, there is a public interest in ensuring that certain offences are recorded as convictions. These include:
   
  (1) any charges where penalties increase for second or subsequent offences such as breach of domestic violence orders (section 10(1A) Domestic Violence Act), drug matters (section 37 Misuse of Drugs Act), violent offences (section 78BA Sentencing Act) and sexual offences (section 78BB Sentencing Act);
  (2) any charges where prescribed penalties apply such as traffic matters and driving offences which carry disqualification periods; and
  (3) any charges relevant to the possible declaration of the offender as a drug trafficker pursuant to section 36A Misuse of Drugs Act.
   
16.13 Generally speaking the maximum penalty for offences placed on a Form 6 schedule should be less than the maximum penalty available for the principal offence. The views of the police officer-in-charge must be sought and recorded on file before any decision is made about placing offences on a Form 6 schedule. Prosecutors should be familiar with The Queen v Charlesworth [1999] NTCCA 26.
   
16.14 A prosecutor must be alert on sentence matters in appropriate cases to making an application for an indefinite sentence pursuant to section 65 Sentencing Act. Such applications must have the approval of the Director.