What are the general sentencing principles used in Defence Force disciplinary cases?

In Plain English

When deciding on a punishment in a Defence Force disciplinary case, the Defence Force Discipline Act 1982 says that the service tribunal (like a court) needs to think about a couple of things:

  • First, they need to consider the same sentencing rules that regular civilian courts use.
  • Second, they have to think about what's needed to keep discipline within the Defence Force.

To make sure they're being fair, they also need to look at things like the person's rank, age, mental and physical health, background, past record, their behavior, and how the punishment might affect them. If they decide to issue a fine, they also need to consider how much money the person has and whether they can still pay any compensation they've been ordered to pay.

Detailed Explanation

Section 70 of the Defence Force Discipline Act 1982 outlines the sentencing principles to be applied by a service tribunal when determining the appropriate action to take against a convicted person. These principles are:

  1. Consideration of Civil Court Sentencing Principles: Subsection 70(1)(a) mandates that the service tribunal must have regard to the principles of sentencing applied by civil courts. This ensures alignment with broader legal standards and fairness in sentencing.
  2. Need to Maintain Discipline: Subsection 70(1)(b) requires the tribunal to consider the need to maintain discipline within the Defence Force. This acknowledges the unique context of military service and the importance of order and obedience.

  3. Mitigating and Aggravating Circumstances: Subsection 70(2) specifies several mitigating and aggravating circumstances that must be taken into account, including:

    • The person’s rank, age, and maturity (subsection 70(2)(a)).
    • The person’s physical and mental condition (subsection 70(2)(b)).
    • The person’s personal history (subsection 70(2)(c)).
    • The presence or absence of previous convictions for service offences, civil court offences, and overseas offences (subsection 70(2)(d)).
    • If the offence involves a victim, the relationship between the person and the victim (subsection 70(2)(e)).
    • The person’s behavior before, during, and after the commission of the service offence (subsection 70(2)(f)).
    • Any consequential effects of the person’s conviction or proposed punishment (subsection 70(2)(g)).

    • Additional Factors for Fines: Subsection 70(3) outlines additional factors to be considered when imposing a fine:

    • The means of the person (subsection 70(3)(a)).

    • The effect of the fine on the person’s ability to meet any reparation orders (subsection 70(3)(b)).

    • Specific Principles: Subsection 70(4) adds further principles:

    • The period a convicted person spent in custody before the action by the service tribunal should be considered when determining the length of imprisonment or detention (subsection 70(4)(a)).

    • If the offence was against section 11.1 of the Criminal Code and the attempt was voluntarily abandoned, the abandonment and its circumstances should be considered in mitigation of punishment (subsection 70(4)(b)).
    • Exclusion: Subsection 70(5) states that a conviction by a summary authority resulting in custodial punishment should be disregarded for a convicted person who is not a detainee.