Draft guideline for consultation only. Draft guidelines should not be taken into account when sentencing.
Culpability is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.
- The court should balance these characteristics to reach a fair assessment of the offender’s overall culpability in the context of the circumstances of the offence.
- The relevance of factors will vary depending on the type of offending. Where a characteristic is inherent in the offence, the mere presence of that characteristic will not be determinative of the level of culpability.
- Deliberate or gratuitous violence or damage to property, over and above what is needed to carry out the offence will normally indicate a higher level of culpability.
- For offences where there is no requirement for the offender to have any level of intention, recklessness, negligence, dishonesty, knowledge, understanding or foresight for the offence to be made out, the range of culpability may be inferred from the circumstances of the offence as follows:
|
Highest level ⇓Lowest level |
Deliberate – intentional act or omission |
| Reckless – acted or failed to act regardless of the foreseeable risk | |
| Negligent – failed to take steps to guard against the act or omission | |
| Low/no culpability – act or omission with none of the above features |
- For offences that require some level of culpability (eg intention, recklessness or knowledge) to be made out, the range of culpability will be narrower. Relevant factors may typically include but are not limited to:
|
Highest level ⇓Lowest level |
High level of planning/ sophistication/ leading role |
| Some planning/ significant role | |
| Little or no planning/ minor role |
- These models of assessing culpability will not be applicable to all offences