The Criteria for Sentencing in Criminal Cases

The Criteria for Sentencing in Criminal Cases


How is sentencing determined in criminal cases?

In NSW the sentencing process, for the most part, is prescribed in the Crimes (Sentencing Procedure) Act NSW 1999. Other rules are outlined in common law, with countless cases outlining the rules relating to how a court must deal with an offender when sentencing them for a criminal offence.

In general, the court takes into account a combination of subjective (personal circumstances etc) and objective (for example the seriousness of the offence) matters when formulating the appropriate sentence for an offence.  In NSW, the sentencing process can be a very complicated one, unlike many other states in Australia where the sentencing process can be much less complicated.

The sentencing Judge/Magistrate can take into account the evidence of witnesses including character witnesses, when deciding the appropriate sentence.


How much weight will be placed on my personal circumstances?

Your subjective case is very important in any sentencing exercise, in any court in NSW.

The following matters must be taken into account when sentencing an offender:

  • Your criminal record (if any);
  • Your family life;
  • Your current, former and future employment;
  • Your character;
  • Your personal need to be at liberty to care for family;
  •  Your reason for offending,

and many other matters.


What type of sentences are available to the court?

The following sentences are available to the court:

  • Section 10 (no conviction recorded),
  • Section 9 good behavior bond (conviction recorded),
  • Section 11 (deferral of sentence),
  • Fine,
  • Community Service Order,
  • Section 12 Bond (suspended jail sentence),
  • Home Detention,
  • Intensive Correction Order,
  • Full time imprisonment.

For more information on all the above sentencing options and to see case studies, click here.


When will a court sentence an offender to a term of full-time imprisonment?

Section 5 of the Crimes (Sentencing Procedure) Act states that a court must not sentence an offender to a term of full-time imprisonment unless “having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. In other words, the court MUST consider other alternatives to imprisonment (such as community service) before imposing a sentence of full-time imprisonment.


Should I represent myself in sentencing?

Unless you are being sentenced for a relatively minor matter (such as littering, or a traffic offence), you should always be represented by an experienced Criminal Lawyer in court for sentencing.

Hiring a lawyer for sentencing is often not as expensive as you think.


Call LY Lawyers on 1300 595 299 for a free consultation.