78030 Criminal Sentencing Law

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2025 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ((70218 Criminal Law OR 70114 Criminal Law and Procedure)) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses. See access conditions.

Description

The law of sentencing is a critical aspect of the criminal justice system, given that most matters go uncontested and result in a guilty plea. Sentencing law is also one of the most interesting aspects of criminal law and procedure. Students begin this subject with a brief revision of how the criminal justice system operates. Sentencing in the Local, District and Supreme Courts is then explored with a focus on how the law is applied in practice and what is expected of lawyers, prosecutors and judges during the sentencing process. Students consider the purposes of sentencing and factors that the court may consider when exercising its discretion in the sentencing exercise. Students also examine a number of specific topics such as mandatory sentencing, the drug court, preventative detention, alternatives to traditional approaches to sentencing and the sentencing of Indigenous and juvenile offenders.

Subject learning objectives (SLOs)

1.	appreciate the purposes of sentencing and evaluate the appropriateness of various sentencing options;
2.	identify and apply laws that relate to sentencing and the appeals process in NSW;
3.	identify and apply the factors taken into account in a sentencing exercise;
4.	engage in class discussions which demonstrate a sound understanding and evaluation of sentencing laws and practices;
5.	undertake independent research to critically evaluate an aspect of sentencing law and situate it in its theoretical, social and/or political context;

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

• Critical Analysis and Evaluation
  A capacity to think critically, strategically and creatively, including the ability to:
  a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
  b. Apply reasoning and research to generate appropriate responses;
  c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
  d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1)
• Research skills
  Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1)
• Communication
  Effective and appropriate communication skills including:
  a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
  b. An ability to communicate to inform, analyse, report and persuade;
  c. An ability to strategically select an appropriate medium and message;
  d. An ability to assess how messages are received and alter communication strategies accordingly; and
  e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
• Collaboration
  Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
  a. An ability to give and receive feedback;
  b. Appropriate professional and interpersonal skills in working collaboratively;
  c. A capacity to develop strategies to successfully negotiate group challenges; and
  d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)

Teaching and learning strategies

Strategy 1: Student preparation

Students complete readings outlined on Canvas and undertake independent research of legislative provisions, cases and secondary materials relating to the topics to be covered prior to each seminar. Preparation enables students to reflect upon the readings and engage in class discussion in an informed manner.

Strategy 2: Online lectures/podcasts and class seminars

The podcasts and class seminars impart the basic legal principles, cover the main areas of sentencing and provide an overview of specific topics such as mandatory sentencing, preventative detention, drug court procedures, alternatives to traditional approaches to sentencing and the sentencing of Aboriginal and Torres Strait Islander and juvenile offenders.

Strategy 3: Class discussion and class presentations

Learning in this subject is based on seminars that are highly interactive, discussion-based and collaborative. Students are required to participate in seminar discussions. Students may also ask and answer questions relating to the subject content on the discussion board.

Seminar discussion is based on a series of prescribed questions for each class, which students reflect upon and answer before coming to class. In class, each student participates by sharing their reflections on seminar topics, participating in small-group discussions, answering and asking questions, and responding to and debating with their peers’ views and interpretations.

Students will also be allocated a topic of sentencing law to lead the class discussion on in small groups. Students will then submit an individual legal brief on this topic.

Participating in seminar discussions provides students with an opportunity to test their understanding of the topics, build upon their prior learning and practise their communication skills. It also allows students to critically explore, analyse and reflect on a range of relevant issues, as well as to develop and evaluate their own positions. Students will be able to gain valuable feedback from their colleagues and the lecturer, and at the same time develop a sense that solutions can be discerned by collaborative exchanges.

Strategy 4: Written and oral submissions

Students prepare written sentencing submissions based on an agreed statement of facts and other documents provided online. Students present oral sentencing submissions in seminars in pairs, acting as either junior or senior counsel for the prosecution or defence. The submissions are an authentic assessment task which are based on and reflect real-life sentencing practices.

Strategy 5: Feedback

Detailed guidance as to the assessment criteria and the provision of timely feedback are an important part of the learning process. Students receive early feedback via the discussion board, and low-stakes feedback via the oral sentencing submissions presented in class. Students can also seek and receive ongoing feedback on their understanding of the subject content in seminars and on the discussion boards from the lecturer and their peers.

In addition, individual feedback is provided on students’ written sentencing submissions. Students receive feedback as a group on their ability to lead class discussions on their allocated topic. Formative feedback is provided in relation to the students’ final research essay question and essay plan. Feedback also comes from a student’s own reflection on their performance with reference to the subject objectives and assessment criteria.

Content (topics)

• The criminal justice system
• The role and purposes of sentencing
• Sentencing options in NSW
• Statutory factors to be taken into account on sentence – aggravating factors
• Statutory factors to be taken into account on sentence – mitigating factors
• Other relevant factors and guideline judgments
• Oral submissions
• Victims and sentencing
• Restorative justice, justice reinvestment and sentencing of Indigenous offenders
• Preventative detention and mandatory sentencing
• Sentencing of juveniles and the appeals process

Assessment

Assessment task 1: Written and Oral Submissions (20% for each task)

Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.3.1, LAW.5.1 and LAW.6.1
Weight:	40%
Length:	Oral submissions are to be 10 minutes in length per group (i.e. 10 mins for the prosecution and 10 mins for the defence), including interruptions/questioning from the bench. Written submissions must be no greater than 1500 words (inclusive of discursive footnotes and headings). Note: Word counts must be included on the cover page of the assessment. The marker will stop reading once the written assignment reaches 1500 words (including substantive footnotes and headings). Students should not include a Bibliography (references should be included in footnotes).
Criteria:	The Written and Oral submissions will be assessed via the following criteria: Understanding and conformity to genre of oral and written sentencing submissions Accurate identification and application of the factors to be taken into account in sentencing Sophisticated oral communication skills, including clarity of expression and capacity to orally integrate evidence and argument Concise, clear and fluent oral and written expression, coherent presentation, and identification and application of appropriate legal authorities. English expression uses complete sentences, appropriate and correct vocabulary and grammar, and avoids unnecessary jargon, verbosity and ornate language Evidence of substantial and reciprocal contributions to group work Writing and referencing in footnotes is accurate, consistent and complies with the AGLC4 and the UTS Guide to Written Communication

Assessment task 2: Leading class discussions

Objective(s):	This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.3.1, LAW.4.1, LAW.5.1 and LAW.6.1
Weight:	20%
Length:	Details on the length of the presentations will be released on Canvas.
Criteria:	Advanced oral communication skills, including concise expression, clarity of expression and capacity to orally integrate evidence and argument. Coherent, well-structured presentation Creation and application of engaging, interactive student learning activities relating to the allocated topic for class discussion Group collaboration in an engaged and reciprocal manner, with substantial contributions made by each team member and proactive completion of team member tasks Demonstration of understanding of issues being discussed, including identification and application of appropriate legal authorities Identification and evaluation of relevant debates and issues as they relate to criminal sentencing

Assessment task 3: Legal Research Brief

Objective(s):	This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.3.1, LAW.4.1, LAW.5.1 and LAW.6.1
Weight:	20%
Length:	The written research brief must be no greater than 1500 words (inclusive of discursive footnotes and headings). Note: Word counts must be included on the cover page of the assessment. The marker will stop reading once the written research brief reaches 1500 words (including discursive footnotes and headings).
Criteria:	Independent preparation of a detailed legal brief that critically evaluates an aspect of sentencing law Development of a clear, well-organised argument organized by the following headings: a) Introduction, b) Areas of Controversy; c) Suggested Areas for Reform, or is otherwise appropriately structured Situation of topic in its theoretical, social and/or political contexts Suggestion of appropriate areas for reform Demonstrates ability to conduct effective legal research, and to identify, cite and apply appropriate primary and secondary legal sources Clear, persuasive, fluent written expression Referencing in footnotes is accurate and complies with the AGLC4

Assessment task 4: Class Participation

Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.3.1, LAW.5.1 and LAW.6.1
Weight:	20%
Length:	Nominal 500 words
Criteria:	Consistent seminar attendance Consistent preparedness for seminar discussions by completing the required readings and preparing draft answers to seminar questions Collaborative, respectful and regular participation in class and group work that involves active listening, volunteering answers and responding to peers’ contributions Oral communication of discussion questions in a clear and concise manner that demonstrates familiarity with the readings Contributions demonstrate an ability to critically evaluate relevant debates and legal issues as they relate to criminal sentencing

Required texts

• David Brown et al, Criminal Laws: Materials and commentary on Criminal law and Process of New South Wales (The Federation Press, 7th edition, 2020): Chapter 14 (this will be available on Canvas)
• Criminal Law Survival Kit. Chapter 13: Sentencing (http://www.criminallawsurvivalkit.com.au/Sentencing.html )
• Students will be allocated readings in their Seminar Materials and must listen to the Criminal Sentencing Law podcasts.

Recommended texts

• Sentencing Law NSW (Lexis Advance Pacific, available online via UTS Library)
• College of Law Practice Paper CR204: Pleas and Sentencing Options (Lexis Advance Pacific, available online via UTS Library)
• Judicial Commission Sentencing Bench Book (available online): https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/index.html
• It is highly recommended that students attend Criminal Law Sentencing Hearings and Sentencing judgments in the NSW Local, District and/or Supreme Court, or alternatively watch the Judge for Yourself exercise (see Week 1 activities).