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How a Sentence is Determined (NSW)

A judge or magistrate must consider many factors in deciding on the appropriate sentence for an offence. There is no single correct sentence for a particular crime because the circumstances of each offence and each offender will influence the severity, duration and nature of the sentence that is appropriate. Sentencing in New South Wales if governed by the Crime (Sentencing Procedure) Act 1999.

Proportionality of sentence

The court must order a sentence that is fair considering the gravity of the offence and the particular circumstances of the offender. This is known as the principle of proportionality.

Two-step method to decide sentence

The court follows a two-step method for sentencing:

  1. A judge must first determine the “objective seriousness” of the offence. Objective seriousness is how serious the particular instance of the offence is. A case may fall at the lower end of seriousness for an offence and attract a very minor penalty, or it may be towards to the most serious example of the offence and attract close to the maximum penalty. To determine the objective seriousness of an offence, the judge must take into account the facts and circumstances of the offence, the maximum penalty that can be ordered for such an offence, as well as any aggravating factors (factors that make the offence more serious) and mitigating factors (factors that may reduce the sentence).
  2. Second, the judge may take into account the personal circumstances of the offender where they are relevant. These are known as “subjective factors” and include things like the age of the offender, whether they have a prior criminal record and what step they have taken to take responsibility for their actions and avoid reoffending.

The judge will also consider the general pattern of sentencing for a particular offence and attempt to treat cases which are similar in a similar way. Courts may look at previous decisions and relevant statistics to identify whether there is a pattern for sentencing that offence.

Importantly, the judge will consider that the purpose of imposing a sentence is primarily to punish and deter.

Aggravating and mitigating factors

An aggravating factor can increase the sentence a person receives, while a mitigating factor may reduce it. However, the importance of each factor and whether it influences the sentence will vary according to the nature of the crime and the circumstances surrounding it.

Aggravating and mitigating factors are set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The maximum sentence

The maximum penalty is the highest fine, most severe order or the longest term of imprisonment that courts are empowered to impose for an offence. The maximum penalty reflects the seriousness of that offence and will only be given when the case falls within the most serious category of cases for that offence.

The maximum penalty is used by the judge as the upper limit for punishment and as a comparison to place it on a scale of severity for that crime. The judge will adjust the penalty according to the seriousness or triviality of the case.

A magistrate in the Local Court is limited in the severity and duration of penalties he or she can order due to its particular range of powers (its jurisdiction). However, in the District and Supreme Court, the judge may order the maximum penalty stated by law. If a matter is heard in the Local Court and the offence attracts a maximum penalty beyond the jurisdiction of the Local Court, the judge must still order a sentence reflecting the objective seriousness of the offence, being careful not to exceed the Local Court limit.


The judge will consider how much the offender planned the commission of the offence. A high degree of premeditation indicates a strong intention to commit the act and makes the offence more serious. An offence committed spontaneously is seen by the court as less serious.

Breach of trust

A breach of trust between the offender and the victim is viewed as a significant aggravating factor and may lead to more severe punishment. For a relationship of trust to occur, there must be a special relationship between you and the victim, for example, the relationship between a teacher and student or a professional and a client.

Degree of participation

Where there is more than one offender, the defendant’s degree of participation will be a factor that impacts the severity of the sentence they receive. Where a person’s degree of participation in the offence is lesser, the offence will attract a less severe penalty.

Impact on the victim

A judge is likely to look at the injury, emotional harm, loss or damage done to the victim as a result of the offence. A judge may only consider harm if you intended for the harm to occur or if the harm could have been foreseen. Where the harm is greater, the penalty will reflect the greater seriousness of the offence.

Uncharged offences and Isolated Incidents

Where the offender has committed other similar offences but has not been charged for them, the judge may still consider evidence of these events in order to identify whether the current offence forms a pattern of breaking the law.

If the offence appears to be out of character, the judge may give a lighter sentence. However, the judge may only consider the evidence if you admit to committing the other offences.

Subjective factors

Subjective factors are personal factors which affect the offender. While objective factors form a boundary for the penalty of the offence, subjective factors can help the judge to arrive at the most appropriate sentence within that boundary. The judge will look at personal factors where they are relevant, to give an appropriate and proportionate sentence. Subjective factors include:

Prior Criminal Record

A judge must consider the defendant’s prior convictions. The criminal record can be used to show whether you have committed an isolated, uncharacteristic act or whether the act forms part of a pattern of breaking the law. Where there are several or many charges on a person’s record, the offence will be viewed as more serious. On the other hand, if the person doesn’t have a prior record, the offence may attract a less severe sentence.

Where your record shows a gap where no convictions have been recorded, this may be treated favourably by the judge as indication that you have reasonable prospects of rehabilitation.

Good Character

Evidence of good character may mitigate the penalty imposed. The circumstances of the case and the nature of the offence committed will influence the weight given to good character. Good character may be evidenced by community involvement, general compliance with the law or other obligations or written character references from members of the community known to you personally or professionally.

However, good character and lack of previous offences will not mitigate the penalty for child sexual offences if good character and reputation helped you commit the offence. Where the offence involves drug couriers, dangerous driving, drink driving or child pornography, good character will be afforded less weight in deciding the severity of the penalty.

Contrition, repentance and remorse

Feelings of regret or sadness for doing wrong may help persuade the judge to be lenient when sentencing. You can show remorse by confessing to the police, entering an early plea of guilty and co-operating with authorities. However, it is important to note that an absence of remorse will not justify a more severe penalty.


Where the offender was not fully aware of the consequences of theiractions, due to youth or advanced age, the sentence may be adjusted to reflect this. However, a sentence must reflect the objective seriousness of the offence and a jail sentence will not be avoided if it is proportionate to the offence committed.

Mental Illness

Mental illness may be considered where there is evidence that it contributed to or caused the commission of the offence, as the offender will often be considered to be less blameworthy. The link between the commission of the crime and the mental illness will be considered along with the circumstances of the case and may not amount to a reduction in sentence. Imprisonment may be more difficult for such an offender and it may be necessary to reflect this in the sentence. If the offender acts knowing the gravity of his or her actions, any mitigation will be slight.

Importantly, a mental illness that renders an offender dangerous to the public may result in a longer custodial sentence usually carried out in a mental health facility. General ill-health may only impact the length of a prison sentence when the health condition renders imprisonment more difficult.

Intoxication and Drug Addiction

If the defendant has a history of alcohol-related violence and the offence is not out of character, intoxication will not be considered favourably. Drug addiction does not usually mitigate a sentence where the matter is serious, particularly where premeditation occurred in the commission of the offence. However, it may be relevant if it is likely to have an effect on the prospects of re-offending or rehabilitation. Compulsory treatment and rehabilitation programs for re-offenders must be complied with where the offender qualifies for the treatment program.


A delay in bringing the matter before the court by the prosecution or court administration may mitigate a sentence if the person has improved their behaviour and decisions in the period of time. Extended delay can also lead to unjust restrictions on an offender’s life, for example, if they are subject to bail conditions that prevent them from leaving their suburb of residence for an extended period of time. Such prolonged restrictions may result in a less severe sentence that accounts for the restrictions already imposed on them.

The Offence Was Committed While on Conditional Liberty

If a person commits another offence while subject to bail conditions, a good behaviour bond or a community service order, this will be treated as a serious aggravating factor by the court and usually attract a more severe sentence.

Post-Crime Behaviour

An improvement in the person’s behaviour immediately after committing the offence may mitigate the sentence imposed. However, the judge requires more than an attempt to reverse the consequences of the crime; for example, a judge may mitigate the sentence if their post-crime conduct saves the victim’s life.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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