Imprisonment / Goal / Full Time Custody

A term of imprisonment in full time custody is the harshest sentencing option available under NSW sentencing legislation. When a person is sentenced to imprisonment for an offence they are taken into custody and placed in a Correctional Facility to serve their sentence. 

The power for the Court to impose a term of imprisonment is under Section 5 of the Crimes (Sentencing Procedure) Act 1999 with the sentencing procedures for terms of imprisonment being contained in Part 4, Sections 44-63 of the Act. 

What is Full Time custody?

There are two kinds of “terms of imprisonment” under the sentencing legislation. The first is an Intensive Corrections Order (ICO) and the second is full time custody. A sentence of full-time custody is a term of imprisonment which involves a Defendant being taken into custody and required to serve their sentence at a Correctional Facility. 

A Court must not sentence a person to a term of imprisonment if any other sentencing option (including a Community Corrections Order or Fine) is appropriate. This test is known as the “Section 5 Threshold”, if there are no other appropriate options the threshold will be crossed and the Defendant will be sentenced to a “term of imprisonment” (either an ICO or full time custody).

In determining whether a person will serve their term of imprisonment in the community under an Intensive Corrections Order or will be sentenced to full time imprisonment, the Court must apply Section 66 of the Act which places the protection of the community as the paramount consideration and also requires the Court to consider whether making an ICO or serving the sentence in custody is more likely to address the offender’s risk of reoffending. 

Legislation:

How the Court Sets Terms of Imprisonment:

The period of time that a person will be sentenced to full time custody depends on the maximum penalty prescribed for the offence and the seriousness of the Defendant’s matter. 

It can also depend on whether the Defendant is being sentenced in the Local, District or Supreme Court.  In the Local Court, the jurisdictional limit for sentences of imprisonment for a single offence is 2 years and a maximum of 5 years for multiple offences. The District and Supreme Court do not have a limit on the length of time a person can be sentenced to custody but must comply with the maximum penalty for the offence.

Head Sentence and Non-Parole Period

Where the Court is sentencing an offender to imprisonment it is required to set a non-parole period for the sentence. A non-parole period is the minimum period of time which the offender must be kept in detention for their offence. When setting a non-parole period, the balance of the sentence must not exceed one third for the non-parole period unless the Court decides there are special circumstances. In practice this means if a person is sentenced to a head sentence of 9 months in custody, the non-parole period must not be less than 6 months unless the Court finds there are special circumstances. 

Full Time Custody of 6 Months or Less

Where a Court sentences a person to imprisonment for 6 months or less it must indicate to the offender and make a record of its reasons for doing so including its reasons for deciding that no other penalty but imprisonment is appropriate and its reasons for deciding not to make an order allowing for the offender to participate in an intervention, treatment or rehabilitation program. 

With custodial sentences of less than 6 months the Court will not set a non-parole period for the sentence. 

Will I get a criminal record for full time custody or imprisonment?

Yes, if a person is sentenced to a period of full time custody or imprisonment, they are convicted of the offence and this conviction will be recorded on their criminal record. 

Related Consequences of a Full Time Custody Term of Imprisonment: 

Automatic and Mandatory Licence Disqualification 

Some traffic offences (such as speeding >30km/h, drink driving, negligent driving or driving while suspended) also carry a licence disqualification consequence in addition to their prescribed maximum penalties. The provisions relating to automatic and mandatory disqualification periods for traffic offences are contained in Section 205 of the Road Transport Act 2013. 

The Legislation states that when the Defendant is convicted of the offence, the automatic and mandatory licence disqualification will be applied against the Defendant’s licence. As full time custody involves a conviction, when a person is sentenced to full time custody, this will trigger the disqualification period being applied. 

When a Court disqualifies a person the disqualification period commences on the day the person is convicted unless otherwise ordered. For a person sentenced to a term of full-time imprisonment, their disqualification period will not commence until such time that they are actually released from custody. 

Where a person is subject to a licence disqualification and then receives a term of imprisonment for a new offence, their disqualification period will also be extended by the new term of imprisonment requiring the person to serve the full period of disqualification when they are released back into the community from custody. 

Mandatory Interlock Order

If the offence for which a person is being sentenced contains a ‘mandatory interlock’ provision the Court is required to impose a mandatory interlock order when convicting a person. Mandatory Interlock Orders involve two stages:

1. Licence Disqualification – A period of disqualification is applied to the licence, then
2. Interlock Order – After the disqualification period has been served, order the Defendant to obtain an interlock licence and have an interlock device installed in their vehicle for the prescribed period of time. 

As a term of imprisonment is a conviction penalty, when a person is sentenced to a CCO, this will trigger the mandatory interlock order being applied to their licence.