If I'm found guilty of a service offence, what factors will the tribunal consider when deciding my punishment?

In Plain English

If you're a member of the Defence Force and you're found guilty of a service offence, the service tribunal will consider several things when deciding your punishment. These include:

  • The sentencing principles that civil courts use.
  • The need to maintain discipline within the Defence Force.
  • Your personal circumstances, such as your rank, age, mental and physical condition, and personal history.
  • Whether you have any previous convictions (service, civil, or overseas offences).
  • If there was a victim involved, your relationship with them.
  • Your behavior before, during, and after committing the offence.
  • The potential impact the conviction and punishment will have on you.
  • If a fine is imposed, your financial situation and ability to pay any compensation orders.
  • Time spent in custody before sentencing.
  • If the offence was an attempt that you voluntarily abandoned, that will be considered in your favor.

Detailed Explanation

When a service tribunal is determining the appropriate action to take against a convicted person, it must adhere to specific sentencing principles outlined in the Defence Force Discipline Act 1982. Section 70 provides a comprehensive list of factors that the tribunal must consider:

  • Sentencing Principles from Civil Courts and Discipline: The tribunal must consider the principles of sentencing applied by civil courts and the need to maintain discipline within the Defence Force, as per subsection 70(1).
  • Mitigating and Aggravating Circumstances: Subsection 70(2) specifies several personal circumstances that must be taken into account, including:
    • The person's rank, age, and maturity (70(2)(a)).
    • The person's physical and mental condition (70(2)(b)).
    • The person's personal history (70(2)(c)).
    • The absence or existence of previous convictions for service offences, civil court offences, and overseas offences (70(2)(d)).
    • If the offence involves a victim, the relationship with the victim (70(2)(e)).
    • The person's behavior before, during, and after the commission of the offence (70(2)(f)).
    • Any consequential effects of the person's conviction or proposed punishment (70(2)(g)).
  • Financial Considerations for Fines: If the tribunal decides to impose a fine, it must also consider the person's means and the effect of the fine on their ability to meet any reparation orders, as stated in subsection 70(3).
  • Additional Principles: Subsection 70(4) includes additional principles, such as taking into account any time spent in custody before sentencing and considering voluntary abandonment of an attempted offence under section 11.1 of the Criminal Code as a mitigating factor.
  • Disregarding Certain Convictions: Subsection 70(5) specifies that convictions by a summary authority resulting in custodial punishment should be disregarded for convicted persons who are not detainees.