Pillar 4: Sentencing

Sentencing Options in NSW: From Dismissal to Imprisonment

NSW criminal courts have a range of sentencing options available, structured from least to most severe. Understanding these options and when each is appropriate is fundamental to effective sentencing advocacy.

The Sentencing Hierarchy

The Crimes (Sentencing Procedure) Act 1999 (NSW) establishes a hierarchy of sentencing options. Section 5(1) enshrines the principle that a court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate. This reflects the principle of parsimony: the least restrictive sanction consistent with the purposes of sentencing should be imposed.

Section 10: Dismissal or Conditional Discharge Without Conviction

Section 10 is the most favourable outcome available after a finding of guilt. The charge is dismissed and no conviction is recorded. There are three categories:

Section 10(1)(a) - Unconditional Dismissal

No Conviction

The charge is dismissed outright. No conditions, no bond, no reporting obligations. The offender walks away with no criminal record for the offence.

Considerations (s 10(3)): The court considers the person's character, antecedents, age, health, mental condition, the trivial nature of the offence, extenuating circumstances, and any other matter the court thinks proper.

Section 10(1)(b) - Conditional Release Order

No Conviction

The charge is dismissed on condition that the offender enters a good behaviour bond for a period not exceeding 2 years. Breach of the bond may result in the offender being re-sentenced for the original offence.

Appropriate when: Section 10(1)(a) is insufficient to mark the seriousness of the offence, but a conviction would be disproportionate to the circumstances.

Section 10(1)(c) - With Intervention Program

No Conviction

The charge is dismissed on condition that the offender participates in an intervention program (e.g., MERIT, circle sentencing, traffic offender program, forum sentencing).

Appropriate when: The offending is linked to an identifiable cause (substance abuse, anger management) that can be addressed through a structured program.

"A section 10 dismissal is not a 'letting off'. It reflects a considered judicial assessment that, in all the circumstances, the recording of a conviction would be disproportionate."

CORE Defence Lawyers submission framework

Conviction-Based Non-Custodial Orders

Conditional Release Order (CRO)

Conviction Recorded

A conviction is recorded but the offender is released on conditions for up to 2 years. Standard conditions apply automatically; additional conditions may be imposed.

Standard Conditions

Not commit any offence
Appear before the court if called

Additional Conditions (may include)

Supervision by Community Corrections
Community service work
Program participation
Abstention from drugs/alcohol

Community Correction Order (CCO)

Conviction Recorded

More intensive than a CRO. A conviction is recorded and the offender is subject to mandatory supervision by Community Corrections plus at least one additional condition. Available for offences not punishable by imprisonment or where the court decides not to impose imprisonment.

Mandatory conditions: Supervision by Community Corrections, not commit any offence, appear before court if called. Plus at least one of: community service (up to 500 hours), curfew, non-association, place restriction, alcohol/drug abstention, program participation.

Fine

Conviction Recorded

A monetary penalty. The court must consider the offender's financial circumstances and the impact of the fine. A fine may be imposed in addition to or instead of other sentencing options (except imprisonment or an ICO).

Section 6: The court must not impose a fine unless satisfied the offender has (or will have) the means to pay it. A fine should not be so onerous as to be oppressive.

Custodial and Quasi-Custodial Options

Intensive Correction Order (ICO)

Quasi-Custodial

A sentence of imprisonment of up to 2 years that is served in the community under intensive supervision. This is legally a sentence of imprisonment, but served outside a correctional facility. The court must be satisfied that it is appropriate in all the circumstances and that the community can be adequately protected.

Standard Conditions

Supervision by Community Corrections
Not commit any offence
Submit to electronic monitoring if required

Additional Conditions (may include)

Home detention
Community service (up to 750 hours)
Curfew
Drug/alcohol abstention and testing

Full-Time Imprisonment

Custodial

Imprisonment is the most severe sentencing option and is a sanction of last resort. Section 5(1) provides 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.

Non-Parole Period (NPP)

For sentences of 6 months or more, the court sets a non-parole period (the minimum time that must be served before the offender is eligible for release on parole). The balance of the sentence is the parole period. The statutory ratio is NPP to parole of 3:1 (75% NPP, 25% parole), but the court may depart from this ratio with reasons.

Fixed Terms

For sentences of less than 6 months, the court imposes a fixed term with no parole component. This reflects the practical reality that parole supervision is not beneficial for very short sentences.

Special Circumstances (s 44(2))

The court may vary the statutory ratio where there are "special circumstances" justifying a longer parole period. This typically arises where the offender needs an extended period of supervised reintegration (e.g., first time in custody, mental health needs, rehabilitation support).

Aggregate Sentences and Totality

Where an offender is sentenced for multiple offences, the court may impose an aggregate sentence under s 53A of the Act. This involves imposing a single sentence for all offences, together with a single non-parole period. The court must indicate the individual sentences that would have been imposed, ensuring that the aggregate is just and proportionate.

The principle of totality requires the court to ensure that the total effective sentence is not crushing or disproportionate to the overall criminality. Where consecutive sentences are imposed, the court must step back and consider whether the aggregate is appropriate.

Defence Strategy: Arguing for the Appropriate Option

Proportionality Arguments

Demonstrating that the proposed option is proportionate to the objective seriousness of the offence and the subjective circumstances of the offender.

Comparable Cases

Presenting sentencing decisions in comparable matters where the proposed option (or less) was imposed, demonstrating consistency with established patterns.

Addressing Purposes

Showing how the proposed option satisfies all applicable purposes of sentencing, including punishment, deterrence, protection, and rehabilitation.

Disproportionate Consequences

Where a conviction or custodial sentence would produce consequences disproportionate to the offending (e.g., loss of career, immigration consequences), this must be put before the court.