Order 11 of the Criminal Practice Rules 2022 sets the sequence of a sentencing hearing in seven Divisions.
Division 1
(1) In the case of a guilty verdict, the prosecutor shall immediately after pronouncement of the verdict notify the Court, by reference to the antecedents report, whether the offender has any prior convictions, and if there are such convictions, the details of the convictions and the sentences that were passed.
(2) The defence shall be given the opportunity to comment on or rebut the details of prior convictions.
(3) In the event of a dispute or uncertainty about the existence or details of prior convictions, the Judge may hear and determine the issues forthwith or adjourn the hearing to a set date and time for the purpose of resolving such issues.
Division 2
(1) The allocutus — the procedure by which an offender is given the opportunity to address the Court on why sentence should not be passed on them pursuant to s 593 of the Code and any matters in mitigation — should not be administered until a reasonable time has passed after the time of conviction.
(2) The practice of administering the allocutus immediately after convicting an offender who has pleaded not guilty to a charge should be avoided unless this is done with the express consent of the offender and their lawyer.
(3) If a pre-sentence or other report is requested, the allocutus should generally be administered after filing and service of those reports on the offender, so that the offender has the opportunity to comment on them.
(4) The allocutus should be administered after presentation of the antecedents report and before counsel make submissions.
(5) The provisions of this rule are guidelines only and failure to adhere to them does not necessarily invalidate the sentence that is passed.
Division 3
On a guilty verdict the Judge shall, after hearing from counsel for the defence and counsel for the prosecution, decide whether to request —
a pre-sentence report from the Chief Probation Officer under s 13 of the Probation Act 1991;
a means assessment report under s 4 of the Criminal Law (Compensation) Act 1991, for the purpose of ascertaining whether the offender has the capacity to make restitution;
and whether to request assistance in preparing a victim impact statement under s 21A of the Criminal Code.
Division 4
The prosecutor and the defence counsel shall, at least three days before the sentencing hearing, unless leave is granted to dispense with the requirement, jointly sign and file Form 68, demonstrating their positions on the pre-sentence period in custody, if any, that has been served by the offender.
(1) When passing sentence the Judge shall, after specifying the length of the head sentence and before specifying whether any or all of the sentence will be suspended, determine in years, months, weeks and days, as the case may be, the specific period, if any, that will … be deducted from the head sentence under the Criminal Justice (Sentences) Act 1986.
(2) It is not sufficient, in performance of the duty in sub-rule (1), to state that the pre-sentence period will be calculated later or that the period will be determined by the Correctional Service or any other person or authority.
That is a direct response to a practical problem: sentences whose real length depended on a later administrative calculation. The order must be complete on its face.
Division 5
Submissions on sentence shall be made orally and/or in writing in accordance with directions of the Court.
Subject to contrary directions, the order of address applies after administering of the allocutus, in all cases irrespective of whether the offender has pleaded guilty or not guilty —
(a) the first submissions shall be made by the prosecution;
(b) the next submissions shall be made by the defence;
(c) the prosecution shall have a right of reply.
Division 6
An offender convicted on indictment of an offence not punishable with death or imprisonment for life who wishes to admit guilt on outstanding charges so that they may be taken into account shall file and serve on the State Prosecutor … a document in Form 69, showing on the back a list of other indictable offences not punishable with death or imprisonment for life with which he has been charged (whether or not he has been committed for trial in respect of those other offences).
The State Prosecutor shall then, before making submissions on sentence, bring the document to the attention of the sentencing Judge. If the Judge takes charges into account, the Judge shall certify on the document … which of those charges has been taken into account, and refer to that certified document in the order as to sentence.
Division 7
To promote consistency and clarity in the terms of orders as to sentence and to avoid confusion in interpretation and enforcement of sentences, without derogating from the discretion of the sentencing Judge to express a sentence because of the circumstances of a particular case, in ways other than in the prescribed forms.
A sentence consisting only of a term of imprisonment, with or without deduction of a pre-sentence period and with or without suspension, may be in Form 70.
A sentence other than that — for example one including an ancillary order such as an order for compensation under the Criminal Law (Compensation) Act or an order restricting movement of the offender under s 600 of the Code — may be in Form 71.
Rule 11(2): if the offender has been convicted of more than one offence in one proceeding, there shall be only one order as to sentence, which should show the sentence allocated to each offence and whether the sentences are to be served cumulatively or concurrently.
Cumulative or concurrent must appear on the face of the single order. See appealing a sentence.
Sources
- Criminal Practice Rules 2022 — O 2 r 2; O 10 rr 1–3; O 11 rr 1–13; Forms 66–71, 83
- Criminal Code Act (Chapter 262) — ss 21A, 593, 600, 603
The Probation Act 1991 and Probation Regulation 1991, the Criminal Law (Compensation) Act 1991 and the Criminal Justice (Sentences) Act 1986 are not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.