Sentencing in NSW: what the court can order
Every sentencing order available in NSW, what the court considers, what each outcome means for your record, and how the plea discount works.
The court can make eight kinds of order, from a dismissal with no conviction to full-time imprisonment, and imprisonment is the last resort in law. For most Local Court matters the outcome sits between a fine with a conviction and a conditional release order without one, and preparation is what moves it. An early guilty plea earns a discount of up to about 25 percent.
- Find your offence's maximum penalty and check whether a standard non-parole period appliesSection 5 of this guide
- Start the four documents the court needs: references, a letter, a program, submissionsModule 3
- Decide what you are asking for and what your fallback isLesson 15
If the prosecution is seeking full-time custody, if you are on bail or an order, or if the offence carries a standard non-parole period, the sentence hearing is a contest and needs a lawyer.
| s 10 dismissal | No conviction |
| CRO without conviction | No conviction, conditions up to two years |
| Conviction, no penalty | s 10A |
| Fine | Conviction |
| CRO with conviction | Conviction, conditions |
| CCO | Conviction, supervision, community service, up to three years |
| ICO | Imprisonment served in the community, up to two years |
| Imprisonment | Custody, non-parole period and balance of term |
1The framework
Start here
Sentencing in NSW is governed by the Crimes (Sentencing Procedure) Act 1999. The Act tells the court what purposes a sentence may serve, what factors aggravate and mitigate, which orders are available, and in what circumstances imprisonment may be imposed. It does not tell the court what sentence to impose; that is a judgement, made by weighing everything at once, which the courts call instinctive synthesis.
The purposes are seven: to punish adequately, to deter the offender and others, to protect the community, to promote rehabilitation, to make the offender accountable, to denounce the conduct, and to recognise the harm to the victim and the community. Which purposes dominate depends on the offence. For a first-offence possession matter, rehabilitation and general deterrence do most of the work. For a serious assault, punishment, denunciation and community protection come forward.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2What the court considers
Factors
Two groups of factors. Objective factors concern the offence: its seriousness relative to others of its type, the harm caused, planning, the use of a weapon, whether it was committed in company, in breach of trust, or while on bail or an order. Subjective factors concern you: your record, age, health, mental condition, remorse, prospects of rehabilitation, the plea and its timing, cooperation with authorities, and hardship a sentence would cause to you or dependants.
Section 21A lists aggravating and mitigating factors. It is not exhaustive and the court cannot count the same feature twice, but the list is the map of what the court is looking for, and everything a defendant tenders at sentence is evidence of something on it.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A. This is a summary for general understanding. The full provision is more detailed and may not apply in all circumstances.
3The orders, least to most serious
The ladder
| Order | Section | Conviction | What it involves |
|---|---|---|---|
| Dismissal without conviction | s 10(1)(a) | No | Offence proved, charge dismissed, no conditions |
| Conditional release order without conviction | s 10(1)(b), s 9 | No | Conditions for up to two years; breach brings resentence |
| Conviction with no other penalty | s 10A | Yes | The conviction is the penalty |
| Fine | s 15 | Yes | Up to the maximum for the offence; capacity to pay considered |
| Conditional release order with conviction | s 9 | Yes | As above, conviction recorded |
| Community correction order | s 8 | Yes | Up to three years; supervision, community service up to 500 hours, curfew, programs, non-association |
| Intensive correction order | s 7 | Yes | A sentence of imprisonment of up to two years served in the community; supervision, possible home detention, electronic monitoring, community service; suitability assessment required; some offences excluded |
| Full-time imprisonment | s 5 | Yes | Custody; a non-parole period and a balance of term, or a fixed term for sentences of six months or less |
The Act requires that imprisonment not be imposed unless the court is satisfied no other penalty is appropriate, and that the reasons say why. For sentences of two years or less the court must then consider whether the term can be served by intensive correction order rather than in custody, and for that decision community safety is the paramount consideration, assessed by reference to whether an ICO or full-time custody is more likely to address the risk of reoffending.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 7, 8, 9, 10, 10A, 15, 66, 67. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
4Fines
Detail
A fine is the most common Local Court outcome. The maximum is set by the offence, in penalty units; a penalty unit is currently $110. The court must consider your means, so evidence of income matters. Fines are payable to Revenue NSW, usually within 28 days, and can be paid by instalment, or in some cases worked off through a work and development order. Unpaid fines become enforcement orders with licence and registration sanctions, which is how a $400 fine turns into a suspended licence eighteen months later.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 6, 15, 17; Fines Act 1996 (NSW). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
5Non-parole periods
Imprisonment
A sentence of imprisonment longer than six months is divided into a non-parole period, the minimum time in custody before release on parole can be considered, and a balance of term. The non-parole period must be at least three-quarters of the head sentence unless the court finds special circumstances, which typically means a longer period on parole is needed for supervised reintegration. Some offences carry a standard non-parole period, a legislated guidepost for an offence in the middle of the range of seriousness, which the court must take into account.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44 to 46, 54A to 54D. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
6The guilty plea discount
Timing
A plea of guilty earns a reduction in sentence for its utilitarian value: it saves court time and spares witnesses. In the Local Court the discount is discretionary and in practice up to about 25 percent for a plea at the first available opportunity, reducing as the matter goes on. For strictly indictable matters the early appropriate guilty plea scheme fixes the discount: 25 percent for a plea in the Local Court before committal, 10 percent up to fourteen days before the first trial date, 5 percent after that. The scheme is explained in the guide on the EAGP process.
The discount is separate from remorse. A person can receive the full utilitarian discount and still be found to lack insight, and a person can plead late for good reason and still have their remorse accepted. The two are weighed separately.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) s 22, ss 25A to 25F; R v Thomson; R v Houlton (2000) 49 NSWLR 383. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
7What to do before sentence
Preparation
The outcome within the range the offence allows is decided, in most Local Court matters, by preparation. References addressed to the court from people who know about the charge. A letter from you that shows insight rather than regret. A program started before anyone ordered it. Submissions of three to five minutes organised under the factors the court has to consider, ending with a clear ask and a fallback. Module 3 of the possess prohibited drug course builds each of these with templates, and the method transfers to any Local Court sentence.
Find your offence's maximum penalty and check whether a standard non-parole period applies. If it does, or if the maximum exceeds two years and the matter is in the District Court, the preparation above is necessary but not sufficient.
If custody is a realistic outcome
Where the offence carries a standard non-parole period, where you are on an order or bail, or where the prosecution is seeking full-time custody, the sentence hearing is a contest about the ICO threshold and the suitability assessment, and the material needs to be marshalled in a particular way. A consultation with the lawyers who built Standard well before the sentence date is the right step.
Request a consultationGeneral information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.