Criminal Sentencing in NSW: Understanding Your Options

When facing criminal charges in New South Wales, understanding the sentencing process and potential penalties is crucial. At Invictus Legal, our experienced criminal defence lawyers provide expert guidance through this complex process to achieve the best possible outcome for our clients.

How Courts Determine Sentences

When determining an appropriate sentence, courts in NSW follow a structured approach based on the Crimes (Sentencing Procedure) Act 1999.

Proportionality of Sentence

The court must impose a sentence that is proportionate to the gravity of the offence and the particular circumstances of the offender. This fundamental principle ensures the punishment fits the crime.

Two-Step Sentencing Method

1. Determine Objective Seriousness: The court assesses how serious the particular instance of the offence is by considering:
   

   • The facts and circumstances of the offence

   • The maximum penalty for the offence

   • Aggravating factors that increase the seriousness

   • Mitigating factors that decrease the seriousness

   
   

2. onsider Subjective Factors: The court takes into account the personal circumstances of the offender, including:
   

   • Age

   • Prior criminal record

   • Steps taken to accept responsibility

   • Rehabilitation prospects

   • Mental health considerations

   • Personal hardship

Purposes of Sentencing

Under Section 3A of the Crimes (Sentencing Procedure) Act 1999, courts must consider all the following purposes:

• To ensure adequate punishment for the offence

• To prevent crime by deterring the offender and others

• To protect the community

• To promote rehabilitation

• To make the offender accountable

• To denounce the conduct

• To recognise harm done to victims and the community

Aggravating and Mitigating Factors

Section 21A of the Crimes (Sentencing Procedure) Act 1999 outlines factors that may influence sentencing decisions:

Aggravating Factors (may increase sentence severity)

• Offence committed while on conditional liberty (bail, parole, good behaviour bond)

• Substantial degree of planning or premeditation

• Breach of trust relationship between offender and victim

• Significant impact on the victim

• Use of violence or weapons

• Involvement of multiple offenders or victims

• Prior criminal history showing a pattern of similar behaviour

Mitigating Factors (may reduce sentence severity)

• Good character and lack of prior convictions

• Genuine remorse and contrition

• Early guilty plea (can result in up to 25% reduction in sentence)

• Cooperation with authorities

• Prospects of rehabilitation

• Mental illness or disability that contributed to the offending

• Youth or age-related factors affecting judgment

Available Sentencing Options in NSW

NSW courts have a range of sentencing options available, from non-conviction penalties to imprisonment. These are ordered below from least to most severe.

Non-Conviction Penalties

Section 10 Dismissal

Under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act, a court may find a person guilty but dismiss the charge without recording a conviction. This is typically reserved for trivial offences or where there are extenuating circumstances.

Conditional Release Order Without Conviction

Under Section 9(1)(b), a court may find a person guilty but not record a conviction while imposing a Conditional Release Order (CRO) for up to 2 years. This acts as a warning for low-level offending and requires the offender to:

• Be of good behaviour

• Appear before the court if called upon

• Potentially comply with additional conditions such as abstaining from alcohol or drugs

Conviction Penalties

Section 10A Conviction with No Further Penalty

A court may record a conviction but impose no additional penalty under Section 10A. This is suitable when the court considers the recording of a conviction itself to be sufficient punishment.

Fines

A court may impose a fine alongside a conviction. The amount cannot exceed the maximum fine specified for the offence. Fines can be paid in full or by installment arrangements through Revenue NSW.

Conditional Release Order With Conviction

Similar to a CRO without conviction, but a conviction is recorded on the offender's criminal record. This can last up to 2 years and may include conditions such as:

• Supervision by Community Corrections

• Participation in rehabilitation programs

• Compliance with place restrictions

Community Correction Order (CCO)

A CCO is a more intensive community-based sentence for offences too serious for a fine or CRO but not warranting imprisonment. A CCO can last up to 3 years and may include:

• Community service work (up to 500 hours)

• Supervision by Community Corrections

• Curfew requirements

• Electronic monitoring

• Treatment or rehabilitation programs

• Abstention from alcohol or drugs

Intensive Correction Order (ICO)

An ICO is a custodial sentence that is served in the community rather than in prison. It represents a significant step up in severity and is subject to strict supervision by Community Corrections. ICOs can be imposed for sentences up to:

• 2 years for a single offence

• 3 years for multiple offences

Standard conditions include:

• Community service work

• Supervision by Community Corrections

• Compliance with directions

• Participation in rehabilitation programs

Additional conditions may include:

• Home detention

• Electronic monitoring

• Curfews

• Drug and alcohol testing

• Non-association requirements

Any breaches of an ICO are dealt with by the State Parole Authority, not by the courts.

Imprisonment

Imprisonment is the most severe penalty available and is considered a last resort option. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 stipulates that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

Types of Criminal Offences That May Result in Imprisonment

Summary Offences

Summary offences are less serious offences governed by the Summary Offences Act 1988 (NSW). These offences are typically heard and determined by a magistrate in the Local Court without a jury. While some summary offences can result in imprisonment, they generally attract less severe penalties.

Indictable Offences

Indictable offences are more serious crimes dealt with under the Crimes Act 1900 (NSW). These offences may be heard in the Local Court, District Court, or Supreme Court, depending on their severity.

Indictable offences that commonly carry imprisonment penalties include:

• Break and Enter Offences

• Drug Offences

• Firearm/Weapon Offences

• Dishonesty Offences

• Fraud Offences

• Sex Offences

• Terrorism Charges

• Violent Offences

• Murder

• Manslaughter

Serious Indictable Offences

Serious indictable offences are those that carry a maximum penalty of imprisonment for 5 years or more. These offences are tried in the District or Supreme Courts and typically attract more substantial periods of imprisonment upon conviction.

Structure of Prison Sentences

When sentencing someone to imprisonment, the court will establish:

• A full-term sentence: The total duration of the imprisonment

• A non-parole period: The minimum time that must be served in custody before becoming eligible for release on parole

• A parole period: The remaining time during which the offender will be supervised in the community by Community Corrections

Jurisdictional Limits

The Local Court can only impose:

• A maximum term of 2 years imprisonment for a single offence

• A maximum term of 5 years for multiple offences

The District and Supreme Courts can impose sentences up to the maximum penalty prescribed by law for the offence.

Non-Parole Periods and Special Circumstances

The non-parole period must generally be at least three-quarters of the total sentence. However, the court can set a shorter non-parole period if "special circumstances" exist.

Special Circumstances May Include:

• Rehabilitation Needs: Where a longer parole period would assist rehabilitation

• Drug and Alcohol Addiction: Where treatment in the community would be beneficial

• First Custodial Sentence: For first-time prisoners adjusting to incarceration

• Ill Health, Disability, or Mental Illness: Requiring special treatment or support

• Accumulation of Individual Sentences: To avoid disproportionate non-parole periods

• Protective Custody: Where the offender must serve time in more restrictive conditions

• Youth: Recognising the vulnerability of young offenders

• Hardship to Family Members: In exceptional circumstances

• Self-Punishment: Where the offender has suffered as a result of their actions

• Parity with Co-offender: To maintain consistency in sentencing

• Historical Offences: When sentencing for offences committed many years earlier

Sentencing Procedure

The sentencing process typically involves:

1. Plea or Verdict: Either a guilty plea or finding of guilt following a trial

2. Sentencing Hearing: Where both prosecution and defence make submissions on appropriate penalty

3. Consideration of Reports: The court may consider pre-sentence reports, psychological assessments, or other expert reports

4. Victim Impact Statements: Victims may provide statements about the impact of the offence

5. Judgment: The court delivers its decision on sentence with reasons

How Invictus Legal Can Help

At Invictus Legal, our expert criminal defence lawyers understand the intricacies of NSW sentencing laws. We can:

• Advise on the likely penalties for your specific charges

• Identify mitigating factors in your case

• Argue for alternatives to imprisonment where appropriate

• Prepare compelling sentencing submissions

• Identify potential "special circumstances" to reduce non-parole periods

• Represent you throughout the entire legal process

Our goal is to achieve the best possible outcome in your case, whether that means seeking a non-conviction outcome, a community-based sentence, or minimising the severity of any custodial sentence.

Contact Invictus Legal Today

If you're facing criminal charges in NSW, early legal advice is crucial. Contact Invictus Legal today to discuss your case with our experienced criminal defence team.

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