This is the full-content study version of Chapter 4 — read it for revision or self-study. Your teacher will teach from the matching slide deck. Deeper case treatment and essay practice live in the Crime Study Guide. Everything here maps to the NESA Crime syllabus dot points under "Sentencing and punishment." Sentencing is where the five themes bite hardest — watch for discretion, balancing rights, and law reform throughout.
The source notes describe good behaviour bonds, suspended sentences and home detention as penalty types. On 24 September 2018 NSW abolished all three (plus community service orders). The current community-based penalties are the CRO, CCO and ICO (see 4.6). Learn the current regime — an answer built on repealed penalties loses marks.
Syllabus: statutory and judicial guidelines to sentencing.
Sentencing is the process by which a court imposes a penalty on an offender who has pleaded, or been found, guilty. It is the responsibility of the judge or magistrate, and it usually happens at a separate sentencing hearing after guilt is established. In deciding a sentence, the judicial officer exercises discretion, but that discretion is bounded by two kinds of guideline.
A statutory guideline is set by an Act of Parliament. The primary source of sentencing law in NSW is the Crimes (Sentencing Procedure) Act 1999 (NSW). It sets out the purposes of sentencing, the penalties available, and the factors a court must weigh.
Sets maximum penalties (via the offence Acts), the purposes of sentencing (s 3A), aggravating and mitigating factors (s 21A), and the range of sentencing orders.
Two important statutory devices constrain a court's discretion:
A judicial guideline (or guideline judgment) is issued by the NSW Court of Criminal Appeal. The court reviews sentencing in a class of case and sets out an indicative approach, so that like cases are treated alike. The aim is consistency and predictability in sentencing.
The Court of Criminal Appeal issued a guideline judgment for armed robbery, indicating a typical starting range for a standard armed robbery by an offender with limited prior record. Judges sentencing armed-robbery matters can measure their sentence against it.
Guideline judgments are controversial: supporters say they deliver consistency; critics say they erode judicial discretion and the ability to individualise justice. That tension is a ready-made evaluation point.
Mandatory sentencing removes judicial discretion by fixing an automatic minimum or mandatory penalty for an offence. It is set by Parliament, usually in response to public concern about a particular crime.
A court must impose a life sentence for the murder of a police officer where the murder was committed while the officer was executing their duty (or in retaliation for police duties) and the offender knew, or ought to have known, the victim was a police officer and intended to kill or was engaged in activity risking serious harm to police. It does not apply to offenders under 18 or with a significant cognitive impairment.
On 2 March 2012 Michael Jacobs shot and killed Senior Constable David Rixon, a highway patrol officer, during a roadside stop at West Tamworth; the mortally wounded officer returned fire and handcuffed Jacobs before collapsing. The jury convicted Jacobs of murder in 2013. It was the first time s 19B was applied, and Jacobs received a mandatory sentence of imprisonment for life.
Created the offence of assault causing death (s 25A) and a mandatory minimum of 8 years where the offender was intoxicated (s 25B). Passed after public outcry over fatal one-punch attacks (see Loveridge in the study guide).
| Arguments FOR | Arguments AGAINST |
|---|---|
| Delivers certainty and consistency; treats like cases alike. | Removes judicial discretion — the court cannot weigh individual circumstances. |
| Reflects community denunciation of very serious crime. | Little evidence that heavier fixed penalties actually deter. |
| Answers public demand for a strong response. | Often criticised as a "knee-jerk reaction" to a single notorious case; can produce unjust results. |
Syllabus: the purposes of punishment — deterrence (specific and general), retribution, rehabilitation, incapacitation.
"Punishment" must be separated from "sentencing": punishment is only one of the aims a court pursues when it sentences. The purposes are set out in statute.
A court may impose a sentence to: (a) punish the offender adequately; (b) deter the offender and others; (c) protect the community; (d) promote the offender's rehabilitation; (e) make the offender accountable; (f) denounce the conduct; and (g) recognise the harm done to the victim and community.
The syllabus focuses on four classic aims, which map onto s 3A:
| Purpose | What it means |
|---|---|
| Deterrence | Discouraging crime. Specific deterrence aims to stop this offender reoffending; general deterrence makes an example of them to society. Note: there is limited evidence that heavier sentences deter — a key evaluation point. |
| Retribution | The sentence should be deserved and proportionate to the crime — the community's measured response to wrongdoing (not private revenge). Ensures the offender is "adequately punished." |
| Rehabilitation | Reforming the offender so they do not reoffend — e.g. drug and alcohol counselling, education, programs. Aims to reduce recidivism by addressing the causes of offending. |
| Incapacitation | Protecting the community by removing the offender's ability to reoffend — through imprisonment, home detention conditions, licence disqualification, etc. |
These purposes often pull in opposite directions — deterrence and retribution push toward a harsher penalty, rehabilitation toward a lighter, supervised one. A good answer shows the court balancing them, and evaluates whether the balance achieves justice.
Syllabus: factors affecting a sentencing decision — aggravating and mitigating circumstances.
Within the statutory limits, the judicial officer weighs the objective seriousness of the offence and the subjective circumstances of the offender. Two categories of factor pull the sentence up or down.
Lists the factors a court must consider. Only factors set out (or otherwise recognised at law) may be taken into account.
| Aggravating (harsher) | Mitigating (lighter) |
|---|---|
| Actual or threatened violence; use of a weapon | No record / good character |
| Offence committed in company or planned | Genuine remorse; assistance to authorities |
| Victim vulnerable (age, disability) or targeted for their occupation | Early guilty plea (sentence discount) |
| Multiple victims; abuse of trust or authority | Youth; prospects of rehabilitation; provocation short of a defence |
| Offence motivated by hatred or prejudice | Mental condition reducing culpability; hardship |
An early guilty plea is a major mitigating factor — a discount of up to 25% under the Early Appropriate Guilty Plea scheme (linked from Chapter 3). It rewards cooperation and saves the system cost and delay.
Syllabus: the role of the victim in sentencing — victim impact statements.
The victim includes both the person directly harmed and those affected indirectly, such as family members. The law recognises victims' rights and gives them a voice at sentencing.
Establishes the Charter of Victims Rights and the Victims Support Scheme — the right to be treated with dignity and respect, to information about the case, to protection from the accused where practicable, and to assistance preparing a victim impact statement. (This Act replaced the earlier Victims Rights Act 1996 cited in older notes.)
A victim impact statement is a voluntary statement, prepared by the victim, describing the harm the offence caused. The court may consider it when sentencing for certain serious offences. It gives the victim a voice, but it does not set the penalty — that remains the court's decision.
Previously, a family member's impact statement in a homicide case could be read to the court but not taken into account in the sentence. After campaigning by victims' advocates (including the Thomas Kelly Youth Foundation), the 2014 reform allowed a family victim impact statement to be considered when sentencing in homicide matters.
Syllabus: appeals.
A person convicted and sentenced may apply to a higher court to review the decision. The party appealing is the appellant; the other party is the respondent. Appeals correct error and promote consistency — but they take time and cost money.
Kieran Loveridge fatally "king-hit" 18-year-old Thomas Kelly in Kings Cross (2012). Convicted of manslaughter, his original sentence was widely criticised as too light. On a Crown appeal, the Court of Criminal Appeal found the sentence manifestly inadequate and increased it to a total of 13 years 8 months (non-parole 10 years 2 months). The case helped drive the one-punch assault-causing-death laws.
Appeals move up the hierarchy (revisit Chapter 3): from the Local Court to the District Court; from the District/Supreme Court to the Court of Criminal Appeal; and, by special leave only, to the High Court. Know that both the offender and the Crown can appeal a sentence.
Syllabus: types of penalties.
From 24 September 2018 NSW abolished good behaviour bonds (s 9), s 10(1)(b) bonds, suspended sentences (s 12), community service orders and home detention as a standalone order. They were replaced by three community-based orders: the CRO, CCO and ICO. Do not list the old penalties in an exam.
Penalties run from the least to the most severe. Imprisonment is a last resort.
| Penalty | What it is |
|---|---|
| Caution / no conviction | A police caution (a formal warning) for minor matters; or, under s 10, the court dismisses the charge or discharges the offender without recording a conviction. |
| Criminal infringement notice | An on-the-spot fine for certain minor offences (e.g. offensive behaviour, minor larceny) — no conviction if paid; may be challenged in court. |
| Fine | A monetary penalty, expressed in penalty units. The most common penalty. Unpaid fines can be enforced or worked off under a Work and Development Order. |
| Conditional Release Order (CRO) | A community order of up to 2 years, with or without a conviction — replaces the old s 10(1)(b) and s 9 bonds. Conditions may include supervision and good behaviour. |
| Community Correction Order (CCO) | A community order of up to 3 years for mid-range offending — replaces community service orders and s 9 bonds. May attach supervision, community service work, curfews. |
| Intensive Correction Order (ICO) | A sentence of imprisonment of up to 2 years that the court directs be served in the community under strict supervision. Conditions can include home detention, electronic monitoring, curfews and community service. More cost-effective than full-time gaol and better for rehabilitation. |
| Forfeiture of assets | The court orders the offender to give up assets gained through crime (e.g. proceeds of drug trafficking or fraud) — see the Criminal Assets Recovery Act 1990 (NSW). Works as a deterrent: "crime doesn't pay." |
| Full-time imprisonment | The most severe penalty and a last resort. The court sets a total sentence and a non-parole period — the minimum time to be served before the offender may be released on parole. |
Know the non-parole period: the minimum term an offender must serve before becoming eligible for parole. It is not automatic release — the State Parole Authority decides. Link it to 4.8 (post-sentencing).
Syllabus: alternative methods of sentencing — restorative justice, circle sentencing.
Circle sentencing is an alternative process for adult Aboriginal and Torres Strait Islander offenders, drawing on community and customary approaches to justice. Instead of a magistrate sentencing alone, the magistrate sits in a circle with the offender, respected community Elders, the victim (where they wish), and support people, to discuss the offence and agree an appropriate outcome. It operates under Part 7 of the Criminal Procedure Regulation 2017 (NSW).
Restorative justice brings the offender and the victim together (with a facilitator) so the offender takes responsibility, the victim is heard, and the parties work toward repair. It can give victims closure and reduce reoffending — but it can also re-traumatise a victim if the offender is unremorseful, so participation is voluntary.
Circle sentencing and restorative justice are strong examples of discretion and rehabilitation over pure punishment — and of the system trying to be responsive to particular communities. Use them to evaluate the effectiveness of sentencing.
Syllabus: post-sentencing considerations — security classification, protective custody, parole, preventative detention, continued detention, sexual offenders registration, deportation.
On entering prison, an offender is given a security classification based on their escape risk, the seriousness of their offence, and their behaviour. Broadly: maximum security (high-risk, e.g. Goulburn), medium security, and minimum security (low escape risk, greater freedom of movement).
Protective custody separates a prisoner who is at particular risk of harm from other inmates — for example because of the nature of their offence, or because they were formerly a police officer or a person in authority. Corrective Services owes prisoners a duty of care; the aim is protection, not extra punishment.
Parole is the conditional release of a prisoner after they have served their non-parole period. The parolee must comply with conditions (e.g. reporting to a parole officer, good behaviour, sometimes treatment or employment) and can be returned to custody for a breach. Parole assists gradual reintegration into the community and is decided by the State Parole Authority.
Two controversial measures keep, or place, a person in custody based on future risk rather than a fresh conviction:
Allows a court to order the continued detention or extended supervision of a serious violent or sexual offender after their sentence expires, where they pose an unacceptable risk to the community.
Allows police to detain a person for a limited period to prevent an imminent terrorist act or preserve evidence — detention without charge. Highly controversial as a limit on civil liberties. (Older notes mis-cite this as a "2016" Act — it is the Terrorism (Police Powers) Act 2002.)
Preventative detention rests on the Terrorism (Police Powers) Act 2002 (NSW), not a "2016" Act; and continued detention rests on the Crimes (High Risk Offenders) Act 2006 (NSW). Both detain on the basis of predicted future risk — the reason they are controversial.
You should be able to: distinguish statutory from judicial guidelines (and give R v Henry and the SNPP table); explain mandatory sentencing with Jacobs (s 19B) and the one-punch laws, and argue for and against it; state the purposes of punishment (deterrence specific/general, retribution, rehabilitation, incapacitation) and s 3A; explain aggravating vs mitigating factors (s 21A); explain the victim's role and victim impact statements (and the 2014 family-VIS reform); describe conviction and sentence appeals (with Loveridge as a Crown appeal); list the current penalties (caution/s 10, fine, CRO, CCO, ICO, forfeiture, imprisonment) — not the abolished ones; explain circle sentencing and restorative justice; and explain parole, continued detention and preventative detention. Test yourself in the Crime Study Guide → Self-Test.
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