Part 2Sentencing purposes, principles and factors

Part 2—Sentencing purposes, principles and factors Division 1—Purposes, principles and factors 9—Primary purpose to be considered For the avoidance of doubt, the primary purpose for sentencing a defendant for an offence must be the paramount consideration when a court is determining and imposing the sentence. 10—General principles of sentencing (1) Subject to this Act or any other Act, in determining a sentence for an offence, a court must apply (although not to the exclusion of any other relevant principle) the common law concepts reflected in the following principles: (a) proportionality; (b) parity; (c) totality; (d) the rule that a defendant may not be sentenced on the basis of having committed an offence in respect of which the defendant was not convicted. (2) Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that— (a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or (b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general). 11—Individual sentencing factors (1) In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant: (a) the nature, circumstances and seriousness of the offence; (b) the personal circumstances and vulnerability of any victim of the offence whether because of the victim's age, occupation, relationship to the defendant, disability or otherwise; (c) the extent of any injury, emotional harm, loss or damage resulting from the offence or any significant risk or danger created by the offence, including any risk to national security; (ca) whether the offence was wholly or partly motivated by hatred for, or prejudice against, a group of people to which the defendant believed the victim belonged (including, without limiting this paragraph, people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or a particular disability); (d) the defendant's character, general background and offending history; (e) the likelihood of the defendant re‑offending; (f) the defendant's age, and physical and mental condition (including any cognitive impairment); (g) the extent of the defendant's remorse for the offence, having regard in particular as to whether— (i) the defendant has provided evidence that the defendant has accepted responsibility for the defendant's actions; and (ii) the defendant has acknowledged any injury, loss or damage caused by the defendant's actions, or voluntarily made reparation for any such injury, loss or damage, or both; (h) the defendant's prospects of rehabilitation. (2) The matters referred to in subsection (1) are in addition to any other matter the court is required or permitted to take into account under this Act or any other Act or law. (3) The court must not have regard to any of the factors in sentencing if it would be contrary to an Act or law to do so (and the fact that any such factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence). (4) A court must determine the sentence for an offence without regard to— (a) the fact that this Act or another Act prescribes a mandatory minimum non‑parole period in respect of the offence; or (b) any consequences that may arise under the Child Sex Offenders Registration Act 2006; or (c) the good character or lack of previous convictions of the defendant if— (i) the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; and (ii) the court is satisfied that the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in the commission of the offence. (5) For the purposes of subsection (1)(a), the court must only have regard to the matters personal to the defendant that the court is satisfied are causally connected with, or have materially contributed to, the commission of the offence, including (for example) the defendant's motivation in committing the offence and the degree to which the defendant participated in its commission. (6) If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence. (7) However, the fact that a defendant— (a) has not participated in, or has not had the opportunity to participate in, an intervention program; or (b) has performed badly in, or has failed to make satisfactory progress in, such a program, is not relevant to sentence. Division 2—General sentencing provisions