Sentencing in NSW

NSW courts work from a hierarchy of available penalties, from least to most severe. At the lowest end sits a section 10 dismissal or conditional release order without conviction, followed by a conditional release order with conviction, a fine, a community correction order, an intensive correction order, and finally full-time imprisonment. The court must generally consider whether a less severe penalty is appropriate before moving to a more severe one.

A community correction order allows an offender to remain in the community under supervision and conditions such as community service or programs, while an intensive correction order is a sentence of imprisonment served in the community under strict supervision, reserved for more serious offending that would otherwise attract full-time custody.

Sentencing involves weighing the objective seriousness of the offence — such as the harm caused, the offender's role, and any use of violence or weapons — against subjective factors personal to the offender, including their age, prior record, remorse, prospects of rehabilitation, and personal circumstances such as health or family responsibilities.

Aggravating factors, such as planning, vulnerability of the victim, or offending while on bail or parole, can increase the appropriate sentence, while mitigating factors, such as a guilty plea, genuine remorse, or steps already taken towards rehabilitation, can reduce it. An early guilty plea in particular attracts a statutory discount that decreases the later it is entered.

For certain serious offences, legislation sets a standard non-parole period — a reference point representing the middle of the range of objective seriousness for that offence — which courts must take into account, though they retain discretion to sentence above or below it depending on the individual case. Separately, the Court of Criminal Appeal issues guideline judgments for some offence categories, setting out factors relevant to sentencing consistently across similar cases.

These mechanisms are designed to promote consistency in sentencing across different courts and judges, while still allowing enough flexibility for a sentence to reflect the specific facts of each case.

Because the same offence can attract vastly different outcomes depending on how it is presented, thorough preparation for a sentencing hearing is critical. This typically involves gathering character references, evidence of steps towards rehabilitation, and a considered set of submissions addressing each of the relevant sentencing factors specific to your case.

Getting advice early — ideally well before you enter a plea — allows time to properly prepare this material and to understand realistically where your matter is likely to sit within the sentencing hierarchy, rather than trying to assemble a case in the days before your hearing.