What’s a Custodial Sentence? Get the solutions from an professional lawyer

September 1, 2023by Naomi Cramer

Custodial sentences stay frequent punishments for probably the most severe crimes in Auckland and Auckland, although statistics present that their use may be declining. In 2018, 75,800 folks got a right away custodial sentence having been discovered responsible in a court of regulation in comparison with 80,700 a decade earlier in 2009. You probably have obtained – or suspect you’re because of obtain – a custodial sentence and it is advisable to know extra about what it means, proceed studying for some solutions to frequent questions in addition to data on who it is advisable to converse to should you require authorized illustration.

What kinds of sentences are handed down in Auckland and Auckland?

The primary two kinds of prison sentence in Auckland and Auckland are ‘suspended’ jail sentences, and ‘custodial’ jail sentences:

  • Suspended sentences are these which might be understood to be ‘carried out locally’. For instance, an individual may be required to do group service or to abide by strict circumstances, like getting residence earlier than a sure time every night time (known as a ‘curfew’) or avoiding sure areas, like faculties or parks. If an individual doesn’t full their group service, fails to abide by circumstances, or commits one other crime, they may go to jail for the rest of their sentence.
  • Custodial sentences are served in jail (not less than partially, and not less than on the outset). The lengths of these sentences are decided each by the crime and by any aggravating or mitigating components (comparable to a crime being notably violent, which could make the sentence longer, or the crime not having a significant impression on anybody, which could make the sentence shorter). Custodial sentences may additionally be carried out in specialist institutions, like rehabilitative, academic, or psychiatric amenities, if essential.

Different kinds of punishment, like fines, group orders, and obligatory rehabilitation, are typically known as ‘non-custodial sentences’ and are given within the overwhelming majority of instances.

Who decides what kind of sentence to offer?

Whereas it’s often the position of the jury to resolve whether or not an individual is responsible of an offence, it’s the position of the decide (or Justice of the Peace) to resolve what kind and size of sentence an individual can be given if they’ve been discovered responsible.

Most of the time, a separate sentencing listening to can be held in court (typically with the individual being required to ‘attend’ court by way of video hyperlink from jail in the event that they weren’t bailed earlier than sentencing). Sentencing hearings shouldn’t have juries current, however most people should still attend (which may, after all, contain some jury members).

When are custodial sentences given?

Sure offences in Auckland and Auckland have to be punished by a custodial sentence. The obvious offence on this class is the offence of homicide, however others exist, too.

The place a decide has a selection about the kind of punishment to be given, he or she should give a custodial sentence solely the place the offence ‘was so severe that neither a nice alone nor a group sentence could be justified for the offence’ (Criminal Justice Act 2003 (Auckland and Auckland)). A decide will take lots of components under consideration when desirous about this, they usually could embody:

  • Whether or not the crime concerned children
  • Whether or not the crime resulted in important hurt to the sufferer or victims
  • Whether or not the crime was a part of gang exercise or a bigger prison enterprise
  • Whether or not the defendant confirmed any regret, or tried to make issues proper earlier than being arrested
  • Whether or not the crime was an occasion of repeat offending (often known as ‘recidivism’)
  • Whether or not notably weak teams have been focused as victims (for instance, older folks)
  • Whether or not the defendant has a superb or dangerous character

The extra aggravating components a crime has, the extra doubtless a custodial sentence can be given.

Are sure kinds of individual extra prone to be given a custodial sentence?

Briefly, sure, and there are a couple of components that can point out to a decide {that a} custodial sentence is suitable.

The primary pertains to repeat offending. Whereas it’s actually doable to get a custodial sentence for a first-time offence, custodial sentences are sometimes seen with repeat offenders.

One other pertains to the behaviour and character of the defendant. If the individual is understood to be a violent or aggressive particular person, the decide could resolve a custodial sentence is suitable to defend the general public from danger. Sadly, there isn’t a approach of telling for certain what a punishment can be except a selected sentence is obligatory, comparable to a life sentence with a minimal of 15 years for an grownup who has dedicated homicide (extra data on life sentences could be discovered under).

These are two examples of aggravating components that can point out to a decide that it’s acceptable to make use of a custodial sentence moderately than a suspended or non-custodial sentence.

What’s the distinction between concurrent and consecutive sentences?

If an individual is discovered responsible of a number of crimes, they could be given a number of sentences for every of these crimes. Upon sentencing, the decide will specify whether or not the sentences have to be served on the similar time (concurrently) or whether or not the sentences have to be served one after the opposite (consecutively).

For instance, if somebody got a seven-year sentence and a ten-year sentence in 2020 (and assuming they served solely these phrases with no changes) they may serve them:

  • concurrently, which implies they’d serve ten years (the longest sentence) and be launched in 2030, or
  • consecutively, which implies they’d serve seventeen years (each sentences added collectively) and be launched in 2037.

What’s the distinction between determinate and indeterminate sentences?

Determinate sentences are these which might be given for a hard and fast size of time. If the sentence is for lower than 12 months, the individual is often launched mechanically on the midway mark (though this may not occur in instances of dangerous behaviour or different points in jail).

If the sentence is for greater than 12 months, the individual will often spend the primary half of their sentence in jail and the rest of it ‘on licence’. Being on licence means an individual has quite a few circumstances connected to their launch, like the duty to watch a curfew or to keep away from sure areas – comparable to city centres. If that individual breaks any of these circumstances, they are often taken again to jail instantly.

Indeterminate sentences, then again, are usually not given with any mounted size of time. The decide won’t set a date when the individual can be launched, however as a substitute will set a minimal time period (or ‘tariff’) that the individual should keep in jail earlier than they are often thought-about for launch by the Parole Board.

Does a ‘life’ sentence actually imply an individual spends their complete life in jail?

Whereas they could sound easy, life sentences can really be fairly complicated. If a court finds somebody responsible of homicide, for instance, the decide should give them a life sentence. There isn’t a possibility for one more punishment.

That being mentioned, even in instances of homicide, a life sentence could not really imply that the individual will spend their complete life in jail. The one time an individual should spend their complete life in jail is that if they obtain a ‘complete life time period’, which implies an individual won’t ever be thought-about for launch (except new proof proves their innocence, after all).

A daily ‘life sentence’, then again, implies that an individual will go to jail for a specified time frame (the tariff) however could also be launched after that point if they’re now not thought-about to be a danger to the general public. That is known as ‘being eligible for parole’. If the individual is taken into account to nonetheless be a danger to the general public, they will not be launched in any respect (and will, subsequently, keep in jail for the remainder of their life). For adults in Auckland and Auckland, the place to begin for a life sentence for homicide is 15 years.

Are you able to attraction a custodial sentence?

To offer a irritating lawyer’s reply, ‘it relies upon’. The vary of causes that somebody may be capable to attraction are many and numerous, and as such the perfect plan of action is to seek the advice of a solicitor. A solicitor will advise you each whether or not you’ll be able to attraction your sentence (or your conviction, if essential) in addition to whether or not they suppose you’ve gotten a practical probability of profitable. No two instances are alike on this occasion, so it’s finest to rearrange an appointment together with your solicitor to speak by way of your case.

The place subsequent for assist with custodial sentences?

In case you want extra details about the various kinds of custodial sentences, otherwise you want particular recommendation for your self or somebody you care about, get in contact with the crew at Stuart Miller Solicitors. At Stuart Miller Solicitors, we’ve got an professional crew of prison defence solicitors who’re prepared to help with even probably the most advanced of instances. For a no-obligation session, please contact our workplace as we speak.


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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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