4031LAW CRIMINAL PROCEDURE AND SENTENCING

Transcription

1 4031LAW CRIMINAL PROCEDURE AND SENTENCING Ross Martin NOVEMBER 31, 2014 GERAMIE BRUNO NOTES Griffith University 0 P age

2 Week 2 Sentencing... 2 Week 3 Charges and Prosecutions Week 4 Arrest; Police use of force; Searching arrestees in Custody and Bail Week 5: Controlled Ops Week 6- Search, seizure and identification Week 7: Questioning and Confessions Supplementary Information for this week Week 8 Alternative Approaches to Criminal Justice Week 9 Committal Hearings and Trials Week 10 Fair Trial and Abuse of Process Week 11 DNA Week 12 Wrongful Conviction Week 13 Verdicts and Appeals P age

3 Week 2 Sentencing After a guilty verdict has been returned or a plea of guilty has been entered, the sentencing will take place. If the charges have been dealt with on indictment, the sentencing will take place in the District or Supreme Court. If the charge has been dealt with summarily, the Magistrate will sentence the offender. The main source of law in Queensland in relation to sentencing is the Penalties and Sentences Act 1992 (Qld) (PSA). The maximum penalty is usually specified in the section that creates the offence, but, as confirmed by ss 47 and 153 of the PSA, the sentencer can, and usually does, sentence the offender to less than the maximum penalty. s 9(1) Penalties & Sentences Act 1992 The ONLY purposes for which a sentence may be imposed: a) Just punishment b) Rehabilitation c) Deterrence of offender or others d) Denunciation e) Protection of the community f) A combination of 2 or more of above Discretion in Sentencing Despite the framework imposed by legislation and common law sentencing doctrine, ample room remains for the exercise of a broad discretion. Findlay et al have noted that the task of sentencing cannot be justly performed without a measure of discretion. They consider that justice requires that the sentence be tailored to the particular facts in each case. In R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, at 189, the Queensland Court of Appeal noted the breadth of the sentencing discretion: [A] sentencing judge also has an extremely wide discretion to be exercised within the limits of the principles which are applicable: "As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty" Lowe [v. The Queen (1984) 154 CLR 606] at 612 per Mason J. In Wong v R (2001) 207 CLR 584, 611, Gaudron, Gummow and Hayne JJ said: [T]he reasons of the [NSW] Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 2 P age

4 "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. [75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [76] In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with the "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. (footnotes omitted) In Markarian v R (2005) 215 ALR 213, the High Court endorsed the approach in Wong, but at , Gleeson CJ, Gummow, Hayne and Callinan JJ added: Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of instinctive synthesis, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression instinctive synthesis may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. 3 P age

5 Issue to consider: Does the instinctive synthesis sentencing process engender transparency or is the process merely plucking figures from the air? Another important issue to consider is that of consistency between like cases, and the concept of the range of available sentence for a given offence. Guideline Judgements In 2010, the PSA was amended to allow the Court of Appeal to hand down guideline judgments : ss 15AA-15AL PSA. Guideline Judgments are handed down by the Court of Appeal to provide additional guidance for judges about sentencing in particular types of cases. The provisions are still new and the Court of Appeal has yet to utilise these powers. A Guideline Judgment might apply to sentences generally or to a particular type of offence/s, a particular type of penalty or a particular category of offender: s 15AA. The provisions don t remove judicial discretion, but provide that a Guideline Judgment is an additional factor which must be taken into consideration in sentencing: s 15AL. Arguably, sentencing has become a vexed political issue because of the way the issue is reported in the media. The power to issue guideline judgments is designed to promote sentencing consistency but also to promote public confidence in sentencing: s 15AH. Sentencing Purposes Section 9(1) PSA lists the exclusive purposes for which a sentence can be imposed under Queensland law. These are: rehabilitation, deterrence, (both general and personal), denunciation, community protection and proportionate punishment. Proportionate punishment is also known as just deserts punishment. In the lecture we will briefly consider the underpinnings of these purposes. It will be noted that a fundamental tension exists between the purposes. Often, one purpose will suggest that a severe sentence is called for; another purpose might demand a more lenient approach. The legislation gives no direct guidance as to how this tension is to be resolved in particular cases. However in Veen v R (No 2) (1988) 164 CLR 465, (Veen (No 2)) the High Court indicated that, while all the sentencing purposes should be considered, a sentence cannot be imposed which would be disproportionate to the circumstances of the offence and the offender. The High Court observed, at [13]: [T]he troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different 4 P age

6 directions. In relation to the prioritisation of particular sentencing purposes, the High Court emphasised that proportionality is the dominant sentencing purpose: 8. The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No.1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender 9. It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. Accordingly, a sentence which is proportionate to the severity of the crime and the circumstances of the offender represents the outer limits of severity of any proper sentence. Issue to consider: Are we too soft on crime? See: The Media s Reporting on Justice is Criminal, This interesting op-ed piece is by Nancy Gertner, former judge from the US. As the article notes, the US has one of the highest imprisonment rates in the world, second only to China (and Rwanda, whose prisons are still swollen by inmates convicted of offences arising from the 1994 genocide). The Sentencing Council of Victoria notes that in 2009, the US had 729 prison inmates per 100,000 population. In Australia, the comparable figure is 175. In Queensland, the figure is 168. Australia s highest rate is the NT, with 658 prisoners per 100, Arguably, other issues raised in Gertner s article apply equally to Australia, particularly the predictable and superficial approach taken by the media to reporting issues about crime and sentencing. Utilitarian (forward-looking) purposes: Rehabilitation Deterrence of offender or others Denunciation Protection of the community Retributive justice (backward-looking) purpose: Just punishment (just deserts or proportionality) Potential for conflict among purposes Rehabilitation Deterrence of offender or others Denunciation 5 P age

7 Protection of the community Just punishment (just deserts or proportionality) Veen v R (No 2) (1988) 164 CLR 465 Cannot sentence disproportionately for community protection Consider all sentencing purposes - but proportionality sets outer limits of a sentence Max penalty reserved for worst category of case Factors Relevant to Sentencing Decision S 9 (2) PSA Imprisonment no longer imposed as a last resort. Facts concerning the nature of the offence Max /minimum penalty; culpability; gravity of the offence; the mental state of the offender; the type of victim and the harm done to the victim ; and the prevalence of the offence Facts concerning the nature of the offender Character of the offender; age; cultural background; disabilities; cooperation with authorities; and remorse and guilty pleas. The effect of the offence and of the penalty Hardship to the offender; hardship to others; and considerations of parity. R v Horne [2005] QCA 218 Importance of taking mitigating factors into account Veen v R (No 2) (1988) 164 CLR 465 Crim history relevant for (e) but cannot impose fresh penalty for past offences Section 9(2) Section 9(2) provides a range of factors which must be taken into account when sentencing. Note that the most of the factors relate either to the circumstances of the offence (for example, (b), (c) (e) and (h)) or to the circumstances of the offender (for example, (d), (f), (g) and (i)). Section 9(3) and (4) also contain relevant factors which apply if the crime involved violence. Similarly, section 9(5) and (6) apply if the offence was a sexual offence against a child. In relation to s 9(2)(b) and the legislated maximum penalty, the High Court in Veen (No 2), [15], noted that: [T]he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v. The Queen (1987) 61 ALJR 525, at p 527; 74 ALR 1, at p 5. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category. In determining the final sentence, as a general rule, the offence factors are considered to be more influential. The gravity of the offence, the impact of the offence on others and the offender s role in committing the offence are central issues which must be considered under 6 P age

8 s 9(2)(c), (d) and (e). If the conviction for the charge included aggravating factors (which were particularised on the indictment), they too must be considered: R v De Simoni (1981) 147 CLR 383. The offender factors must also be considered: s 9(2)(g). Some offender factors will be aggravating (not to be confused with aggravating circumstances of an offence) and some will be mitigating. One important offender factor is the offender s criminal history. Section 9(2)(f) requires that the offender s character be considered. Section 11 provides that the offender s criminal history is one of the matters relevant to determining character. In Veen (No 2), [14], the High Court noted: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. It is also likely that there will be offender factors which mitigate the offence in some way. In R v Horne [2005] QCA 218 (Horne) the Queensland Court of Appeal overturned an otherwise appropriate custodial sentence on the basis of compelling factors of mitigation. Jerrard JA noted that: [T]here were two matters significantly mitigating the appropriate sentence in this case. One was the applicant's genuine regret for what he had done. He told the police who were investigating that he felt physically sick with remorse the day after the robbery was committed and he said that when he was participating in an interview with those police in which he completely incriminated himself and his co-accused. The other matter in his behaviour mitigating to penalty to be imposed is his good prospects for the future as a law-abiding citizen. There is the fact of his good conduct for two years after the offence, including his full confession to the police one year later and the fact that he has maintained employment for nearly all of those two years. Keane JA also observed: 7 P age

9 While the learned sentencing judge was no doubt correct in identifying deterrence as a significant factor in imposing an appropriate sentence for offences of this kind, there is also, it is clear in principle and on the authorities, a place for a consideration of the prospects of rehabilitation. In my respectful opinion, the learned sentencing judge appears to have been influenced by considerations of deterrence to the exclusion of a consideration of the compelling claims in this particular case of rehabilitation. In this regard, in my respectful opinion, the learned sentencing judge erred. s 13 PSA Guilty pleas Must take guilty plea into account may reduce sentence Justification for reducing sentence? Not cost savings / convenience for CJS, but indicative of willingness to facilitate the course of justice analogous to remorse: Cameron v R (2002) 209 CLR s 13(2): Must take into account when plea was entered relevant question is whether plea was entered at earliest reasonable time: Cameron v R Sentence Discounts usually 10 30% - Houghton [2002] QCA Section 13 of the PSA provides that a guilty plea must be taken into consideration and may be used to reduce the offender s sentence. Under subsection (2) the court will have regard to when the guilty plea was entered. A timely guilty plea is considered to be a mitigating factor which can lead to a substantial discount on sentence. The High Court has explained this result as supported by the offender s willingness to facilitate the course of justice: Cameron v R (2002) 209 CLR 339. In Cameron, the court indicated that, in relation to timing, the relevant question is whether the plea was entered at the earliest reasonable time. In R v Houghton [2002] QCA 159, McMurdo P discussed how a guilty plea will be taken into account: [31] As to matters of mitigation, two factors were important. The first was the applicant s plea of guilty. A sentencing judge must take this into account and may thereby reduce the sentence which would otherwise have been imposed. Normally the sentence will be reduced by 10 per cent to 30 per cent for such a plea. In the present case, the plea was offered after the committal proceedings for murder and before the first trial. It was, therefore, not a late plea. Moreover, the committal proceedings would not have been avoided even if the plea had been offered before those proceedings, since the Crown was pressing the charge of murder. It is, therefore, appropriate to regard it as an early plea. 8 P age

10 [32] On the other hand, the Crown case was a strong one. The applicant might well have regarded conviction as inevitable and have decided to plead guilty after taking legal advice, simply to gain the benefit of s 13. Moreover, he offered no cooperation to the authorities in respect of the prosecution of his co-accused Rousetty, whose trial for murder is still pending, or of any others involved, despite the fact that he later rose through the ranks to become president of the motorcycle club. These matters do not suggest a willingness to facilitate the course of justice. It was open to him to go into the witness box on sentence and explain them if he could; but he chose not to do so. [33] The applicant was entitled to substantial, but not the maximum available credit for his plea. s 13A PSA Cooperation with authorities s 9(2)(h) - applies to general, informal cooperation that happens prior to sentencing - e.g., Horne s13a Applies to a formal agreements to provide future cooperation Most often used for organised crime investigations Details sealed, not made public, closed court York v R (2005) 225 CLR 466 threat to offender s safety should be taken into account Section 13A allows a judge to reduce a sentence because an offender has agreed to cooperate with law enforcement authorities. During the lecture we will discuss York v R (2005) 225 CLR 466. See also: Webber (2000) 114 ACrim R 381. Need to be careful so we don t over reward people who commit the crimes when they assist authorities by telling them information about other crimes, offenders etc York- That sort of contribution should be well rewarded and she stayed out of jail. People made assumptions about her however athat she was a female and thus less guilty than her partner who she killed with. Significance of drugs and alcohol Generally, the consumption of alcohol will not be a mitigating factor in the imposition of a sentence (R v Rosenberger, Ex parte A-G [1995] 1 Qd R 677.) However, in Hammond [1997] 2 Qd R 195, the court qualified that by observing that where drug addiction lay behind an offence, it was relevant to the extent of showing that the offender s descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. While drug addiction is not an excuse it is a factor that may tell the court that the offender s real weakness of character is that of a drug addict rather than for instance that of a robbery, and may also tell it that rehabilitation is going to be difficult. See also Bugmy (2013) 249 CLR 571, where it was said that in the case of sentencing an aboriginal offender, where an offender s abuse of alcohol was a consequence of the environment in which he was raised, it should generally be treated as a mitigating factor. Drug addiction might not be in the favour of the accused, it s a marker that they may reoffend, but still may show that theyre not a professional criminal 9 P age

11 Significance of mental condition In R v Engert (1995) 84 A Crm R, Gleeson CJ (then Chief Justice of the Supreme Court of NSW) said that it was not the law that a mental abnormality necessarily resulted in a reduced sentence. Sentencing aboriginal offenders In two cases which appear next to each other in the CLRs, the High Court has recently re-addressed the issue of sentencing of aboriginal offenders Bugmy (2013) 249 CLR 571 and Munda (2013) 249 CLR 600. These cases will be discussed in the lecture. Munda- there is no rule that there is a discount for sentencing on account of aboriginality. The view that they had it tough and therefore gets a discount is not valid If a disadvantaged background is relied upon, it cannot be assumed but must be proven. Court said in Munda that if alcoholism is advanced as a feature of the case with an aboriginal character and this was brought upon because of a poor upbringing, then this is a mitigating factor. Totality Principle Applies when sentencing offender to > 1 offence Sentences ordered for offences considered as a whole should be proportionate to overall criminality Avoid imposing burden of crushing punishment s Prison sentences generally served concurrently s 156 Court can order cumulative sentences s 156A Certain violent offences must be served cumulatively Mill v R (1988) 166 CLR 59 Judge must consider aggregate sentence, ensure it is just Look at totality of criminality & ensure that overall sentence reflects overall criminality Usually, totality requires reduction to avoid crushing punishment. To implement principle of totality: Can make sentences wholly or partly concurrent or Lower individual sentences. HC prefers former method The totality principle is related to the principle of proportionality. The idea is that, in sentencing an offender for multiple offences, the sentence should be proportionate to the criminality involved in the offences considered as a whole. In Postiglione, 307-8, McHugh J noted: The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v R O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi: 10 P age

12 There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences In Mill v R (1988) 166 CLR 59, 63, the High Court described the principle this way: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong' It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. The totality principle is reflected in ss 155, 156 and 156A of the PSA. Parity Principle Similar cases should receive similar penalties Equal justice requires that like cases should be treated in like manner. Important to promote consistency, but relevant differences in offence factors & offender factors should be reflected in sentence Postiglione v R (1996) 189 CLR 295 Should not be a marked disparity in sentence which gives rise to a justifiable sense of grievance Relevant differences between offender factors or (for co-offenders) respective roles might explain disparity The parity principle reflects the idea that, all other things being equal, similar punishments should be inflicted for similar offences. Any disparity between sentences will be most stark when co-offenders are sentenced differentially for their respective roles in the same offence. 11 P age

13 In Postiglione v R (1996) 189 CLR 295, 335, (Postiglione), Gummow J noted: Consistency in punishment is "a reflection of the notion of equal justice". It is an attribute of "any rational and fair system of criminal justice". On the other side of the coin, inconsistency in punishment is regarded as "a badge of unfairness" which erodes public confidence in the integrity of the administration of justice. At , Dawson and Gaudron JJ observed that: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co- offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. In R v Nagy [2004] 1 Qd R 63, 75, Williams JA observed: The reasoning of the High Court in Lowe v. The Queen (1984) 154 C.L.R. 606 recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". That decision, and subsequent cases applying it, establish that a sentence should be reduced where there is such a marked disparity, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. That is confirmed by the reasoning in Postiglione v. The Queen (1997) 189 C.L.R. 295 especially at 301 and 313. Whilst "equal justice requires that like should be treated alike... different sentences may reflect different degrees of culpability or their different circumstances". Where there are sufficient factors supporting different treatment, then no justifiable sense of grievance flows from the fact that one offender received a heavier sentence. Indefinite Detention Harshest sentencing option available 12 P age

14 s power to order indefinite sentence Chester v R (1988) 165 CLR 611 Indefinite detention breaches proportionality Therefore, indefinite sentences must be confined to exceptional cases Violent offences only Offenders who are a continuing danger only Part 10 PSA s 163(1) offender convicted of qualifying offence s 162, Schedule 2 define qualifying offences s 163(3) offender is a serious danger to community s 163(2) court must declare nominal sentence ie, proportionate sentence it would order if not ordering ID s 163(4) list of things court must take into account for (3) s 169 prosecution bears onus of proof s 170 standard of proof = high standard of probability Buckley v R [2006] HCA 7 Need to consider question of offender s dangerousness at end of nominal sentence (not at time of sentencing) Required anyway under legislation: s 163(4)(d) Thompson v R [1999] HCA 43 Indef sentences require comprehensive, thorough evidence McGarry v R (2001) Report by social worker not good enough Must consider treatment options, prospects for rehab Reviews Nominal sentence determines when first review takes place Key is not thrown away s 171 review of indefinite sentence s 173 Question on review: whether offender is still a serious danger to community Penalties Skim the contents pages of the PSA. Note that Parts 3 10 deal with the various penalties available in ascending order of severity. Ensure that you are familiar with the range of penalties that courts might order, including unconditional release or release subject to a good behaviour bond: s 19; monetary fines: s 44; probation: s 90; community service order: s 100; intensive correction order: s 111; suspended prison sentence: s 144; fixed term imprisonment: s 152; and indefinite detention: s163. Generally, there was once a principle that imprisonment was the punishment of last resort and a sentence that allows the offender to remain living in the community is preferable. The point was once to be found in s 9(2)(a). However, that principle was reduced over time so that it did not apply to violent offences, child sexual offences or child pornography offences: these principles were formerly found in ss 9(3), (5), (6A). In more recent amendments, the principle of imprisonment as a last resort has been removed altogether, and with that removal the exceptions to the rule were no longer needed. 13 P age