Penalties and Sentencing for Criminal Offences in NSW

When a person is found guilty or pleads guilty to a criminal offence/s in New South Wales, the Court must sentence the person and decide on the appropriate penalty. The Crimes (Sentencing Procedure) Act 1999 contains a variety of available sentencing options, including dismissals, conditional release orders, fines, conviction only penalties, community corrections orders, intensive corrections orders and terms of imprisonment. 

Depending on the charges and the matter, the person may also find themselves subject to additional powers or consequences because they have plead or have been found guilty, such as:

This article provides an overview of the available penalties under the Crimes (Sentencing Procedure) Act 1999 for criminal offences in NSW, an overview of additional consequences and powers related to sentencing and an overview of sentencing principles. 

Overview of Sentencing Principles under the Crimes (Sentencing Procedure) Act 1999

In NSW, the relevant legislation in respect to sentencing offenders is the Crimes (Sentencing Procedure) Act 1999. Magistrates and Judges must take into account all of the following purposes of sentencing:

1. To ensure that the person is adequately punished for the offence;
2. To prevent crime by deterring the person and other persons from committing similar offences;
3. To protect the community from the offender;
4. To promote the offender’s rehabilitation;
5. To make the offender accountable for their actions.
6. To denounce the offender’s conduct;
7. To recognise the harm done to the victim and the community.

The Court will also take into account the offender’s personal circumstances (known as “subjective circumstances”) and any mitigating or aggravating factors that go to the objective seriousness of the offence.

Where a person pleads guilty to an offence at an early opportunity, they are entitled to a 25% reduction on the sentence they would otherwise have received. 

Courts generally have a wide discretion to decide what sentence to impose; however, Courts’ discretion is limited by the maximum and minimum penalties that can be imposed for an offence under the legislation. They must also be guided by case law as to the appropriate penalty range for a particular kind of offending and as to what factors must be taken into consideration. There are also jurisdictional limits that restrict the penalties Courts can impose. 

Sentencing Options under the Crimes (Sentencing Procedure) Act 1999

Dismissal with No Further Penalty – Section 10(1)(a):

In certain sentencing matters, the Court has the discretion not to convict a person but instead make an order under Section 10(1)(a) of the Act finding the person guilty but dismissing the matter without further penalty. While this penalty involves a finding of guilt, there is no penalty/fine, no loss of licence, no demerit points recorded for an offence and no criminal conviction on the person’s criminal record. 

Conditional Release Order (“CRO”) – Section 10(1)(b) and Section 9(1)(a):

Conditional Release Orders are good behaviour bonds that can be imposed for a period of up to 2 years. CROs can be ordered either with conviction (pursuant to Section 9(1)(a) of the Act) or without a conviction (Section 10(1)(b) of the Act). The standard conditions of a CRO bond are that the Defendant is to be of good behaviour and to appear before the Court if required to do so.

If a Defendant completes their CRO bond without any breaches, they will receive the benefit of the non-conviction. If the CRO bond is breached, the Defendant will be called back before the Court for that breach and may lose the benefit of their non-conviction when being re-sentenced. 

Conviction with No Other Penalty – Section 10A

This sentencing option under Section 10A of the Act enables a Defendant to have a conviction recorded on their criminal record but no other penalty to be ordered for the offence. This penalty was introduced to the sentencing legislation to provide an alternate power when the Court considers a non-conviction conditional release order is inappropriate considering the circumstances of the offence but no further penalty is necessary. 

Fine – Section 15

A fine is a financial penalty. When a fine is imposed, a conviction is also recorded on the person’s criminal record. When sentencing a person, the Court will have regard to the maximum penalty prescribed for the offence in ‘penalty units’ and the fine penalty cannot be greater than that amount.

Community Corrections Order (“CCO”) – Section 8

Instead of imposing a term of imprisonment on an offender, the Court can impose a Community Corrections Order (‘CCO’) pursuant to Section 8. A CCO can be for a period of up to three years, involves a conviction being recorded on a person’s criminal record and operates as a good behaviour bond. A CCO can be imposed in addition to a fine, but it cannot be imposed for a fine-only offence.

A CCO is subject to the standard conditions that the Defendant is to be of good behaviour and to appear before the Court if required to do so. The Court can also impose additional conditions tailored to address the offender’s personal circumstances and influences that led to the offending behaviour such as supervision by the Department of Community Corrections, community service orders, abstinence from drugs or alcohol, condition that the offender continue mental health treatment or rehabilitation programs.

If a Defendant breaches their CCO bond, they will be called back before the Court for that breach and re-sentenced. With a breached CCO bond, the Court can decide to take no action on the bond, revoke the bond or vary the bond. 

Terms of Imprisonment:

For a term of imprisonment to be an available penalty, the Court must consider all other possible sentencing alternatives under the Act and be satisfied that none are appropriate penalties for the offence. Once the Court has made the determination that no other sentencing option is appropriate, the person must be sentenced to a “term of imprisonment” which includes either an Intensive Corrections Order or a period of Full Time Custody. 

Intensive Corrections Order (ICO) – Section 7

An ICO is a ‘term of imprisonment’ that is served in the community similar to but different from a good behaviour bond. Before the Court places a person on an ICO it must take community safety into account as the paramount consideration. 

For a single offence an ICO can be for a maximum duration of two years. With multiple offences, a person can receive an ICO of up to three years.

As an ICO is a “term of imprisonment”, any breaches of the order are dealt with by the NSW State Parole Authority and will likely result in the person’s ICO being revoked and the person being taken into custody. 

Imprisonment / Full Time Custody / Gaol – Section 7

A sentence of ‘full time custody’ or ‘imprisonment’ is the harshest sentencing option available in NSW. Terms of imprisonment can only be imposed where the maximum penalty for the offence charged contains an imprisonment term. Terms of imprisonment cannot be ordered on fine only offences. 

In NSW, a term of imprisonment (or youth detention, for a person under 18) can be ordered with or without a non-parole period. 

Ancillary / Consequences of Sentencing

• Asset Forfeiture 
• Drug Proceeds Order
• Pecuniary Penalty Order
• Child Protection Register 
• Criminal Records
• WWCC 
• Firearms Prohibition Orders
• Apprehended Domestic Violence Orders
• Extended Supervision Orders
• Security Licences
• Real-Estate Licences 

At Armstrong Legal, our goal is to not only achieve the best result but also ensure our clients understand what can be realistically achieved during the course of their matter and our lawyers are well equipped to advise clients as to the likely penalty should they plead guilty or be found guilty.  

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