How does the Judge figure it out?
The framework the law requires the Judge to apply, the factors that move a sentence in each direction, and the specific test for a non-conviction outcome.
9.1The Judge is bound by a framework
Start here
Sentencing is not a mood. The Judge is required by statute to sentence for particular purposes, to weigh particular factors, and to explain the result. Understanding the framework tells you what to put in front of the court, because every document in Module 3 is aimed at a specific part of it.
The purposes are set out in the Act: to punish adequately, to deter you and others, to protect the community, to promote your rehabilitation, to make you accountable, to denounce the conduct, and to recognise harm. For a possession matter, rehabilitation and deterrence do almost all the work. A Judge who believes you have already learned the lesson and are unlikely to be back has little reason to punish further. A Judge who believes you have learned nothing has every reason to.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A. This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
9.2Objective seriousness
The offence
The Judge first places your offence on a scale from least to most serious for this type of offence. For possession the scale runs from a small quantity of cannabis for personal use at one end to a quantity just under the traffickable amount, with packaging and cash, at the other. Most people reading this sit near the low end, and the law requires the sentence to be proportionate to where you sit. The Judge cannot sentence a low-end offence as if it were a serious one.
Things that raise objective seriousness: a larger quantity, a drug the court regards as more harmful, possession in a place like a school or a prison, and any indicator of supply. Things that lower it: a small quantity, clear personal use, and the drug being surrendered rather than found.
9.3Subjective circumstances
You
The Judge then turns to you. The Act lists aggravating and mitigating factors, and the ones that arise on a possession charge are below. Everything in Module 3 is evidence of one of the factors in the right-hand column.
| Works against you | Works for you |
|---|---|
| Prior convictions, especially for drugs | No prior record, or a record that is old and unrelated |
| Offending on bail, on an order, or on parole | Good character shown by references, not asserted by you |
| A late plea, or a plea entered after a failed hearing | An early guilty plea |
| No insight: minimising, blaming others, treating it as trivial | Remorse and insight shown by what you have done, not what you say |
| Poor conduct at arrest recorded in the facts sheet | Cooperation with police and a program completed before court |
| An untreated drug problem with no steps taken | Strong prospects of rehabilitation: work, study, family, treatment |
| Youth, or hardship a conviction would cause that is out of proportion to the offence |
Notice that the right-hand column is almost entirely things you can prove. That is the point. Remorse is not a feeling the Judge can see. It is a completed program, a considered apology letter and a reference from someone who knows what you have done since.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2), (3). This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
9.4The guilty plea discount
Timing
A guilty plea earns a reduction in sentence, and the earlier it is entered, the larger the reduction. In the Local Court the discount is at the Judge's discretion and in practice runs up to about 25 percent for a plea at the first opportunity, shrinking as the matter goes on. The discount is for the utilitarian value of the plea, saving court time and sparing witnesses, and it applies whether or not the Judge also accepts you are remorseful.
For a possession matter this rarely changes the type of order. It matters at the edges: a fine set lower, a shorter CRO period. Where it matters more is the signal. A plea at the first mention says you accept responsibility; a plea on the morning of the hearing says you ran out of options.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 22; R v Thomson; R v Houlton (2000) 49 NSWLR 383. This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
9.5The test for a non-conviction outcome
Section 10(3)
Before the Judge can dismiss the charge or make a CRO without conviction, the Act requires them to consider four things: your character, antecedents, age, health and mental condition; whether the offence is trivial; any extenuating circumstances in which it was committed; and any other matter the court thinks proper. Your submissions in Lesson 15 should be organised under exactly these four headings, because they are the headings the Judge has to work through.
In practice the argument that most often persuades a court to withhold a conviction is the third combined with the first: a person of otherwise good character, with no history, for whom a conviction would carry consequences (employment, professional registration, travel, a visa) far out of proportion to a single instance of personal drug use. Judges are also alert to whether a non-conviction outcome would undermine deterrence. Your job is to show that it would not, because the process itself has already deterred you, and here is the evidence.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(3). This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
9.6What the Judge sees that the law does not list
Presentation
Judges in the Local Court sentence dozens of people a day. They have heard every explanation. What registers is not eloquence but preparation and honesty. A person who has read the facts sheet, disputed only what is worth disputing, completed a program before being told to, brought references that actually say something, and speaks plainly about what happened without excuses, is rare enough to be noticed. A person who reads a paragraph from the internet about how sorry they are is not.
That is the whole reason Module 3 is built the way it is.