Main content area

Sentencing

This section covers:

  • evidence and submissions;
  • possible sentences;
  • sentence indications; and
  • costs.

If you are found not guilty of an offence, you will be acquitted. You are thereafter considered innocent of the charge. One important consequence of acquittal is that you may be able to recover some of the costs of your court case. This is discussed in the section on costs at the end of this section.

Once you either plead guilty, or are found by the magistrate or jury to be guilty of a charge, you will be sentenced. It is here that the magistrate or judge will give the defence an opportunity to address the court, to make submissions and give evidence about the sentence to be imposed.

Evidence and submissions

You may ask the magistrate or judge to order a pre-sentence report. This is usually prepared by officers of a Probation and Parole Service, and should be given to you (and your lawyer) so that you may comment on it before sentencing.

The prosecution is supposed to assist the court by presenting the facts, referring to special principles of sentencing relevant to the case, and by producing your prior record. They generally don't make submissions unless asked by the court as to whether the magistrate or judge should or should not impose a custodial sentence, or what that sentence should be.

Once the prosecution has made its submissions on sentence, you will be given the opportunity to present your own. Submissions may include both oral evidence – from witnesses about the facts of the matter, or about your character, or evidence you yourself give – and documentary material. You should have copies of any documentary material with you, to hand to the magistrate or judge and to the prosecutor.

Your submission on sentence should be based on two major factors:

  • the 'objective' seriousness of the crime, and any other 'objective' factors affecting your responsibility for it; and
  • subjective factors relating to you as an individual.

These subjective factors might include: your conduct during the crime; your explanation for the crime; your criminal record; any remorse you might have shown; personal circumstances; details of your family history that may explain your conduct; your employment history (it may be helpful if you have been in steady employment); the consequences of conviction or imprisonment (for example, the possible hardship for your family); and generally anything else you consider may help your position.

Sentencing law usually specifies the aggravating, mitigating and other factors that the magistrate or judge must take into account in deciding the appropriate sentence. You should address these factors when making your submissions.

The normal rules of evidence are usually relaxed for sentencing. The Evidence Acts usually only applies at sentencing if the court makes a direction that it should apply. You may wish to admit statements attesting to your good character. Unless the prosecution objects, your statements or depositions may be admitted without having to satisfy the normal requirements of admissibility (see Evidence).

If the prosecution does object, you may have to call witnesses to give evidence on oath, and the prosecution may call evidence in reply. As at trial, witnesses at sentencing may be cross-examined. Of course, you may object to any information provided by the prosecution. However, it is the magistrate or judge who will decide what to believe, and she or he will sentence accordingly.

If you have a criminal record, you may be able to distinguish those convictions from the current one. For example, if you have been convicted of theft and you have a past conviction for assault, then you should emphasise that this conviction for theft is your first for dishonesty. If you have not committed any offences for many years, then you could emphasise that your record relates only to your youth, and so should not be held against you. However, it is generally a mistake to attempt to argue or play down past convictions.

When you make your submissions on sentence, try to have a realistic idea of the type of penalty that you can expect. It is useful to know the types of sentence usually applied to your category of offence, so that you can be realistic in your submissions. For example, if the Court of Criminal Appeal (CCA) has released a sentencing guideline judgment in relation to the offence, you should refer to this.

Finally, in relation to some offences a judge may, if he or she considers it appropriate to do so, receive a victim impact statement and consider it in determining the appropriate sentence.

Possible sentences

Sentencing law regulates sentencing penalties and procedures. The law usually requires that a magistrate or judge not pass a sentence of imprisonment unless he or she has considered all possible alternatives, and is satisfied that no other penalty is appropriate. Only a small number of magistrates' sentences involve imprisonment.

The following options are open to a magistrate or judge when sentencing:

  • a finding of guilt but dismissal of the charge – discharge on the condition that you enter into a good behaviour bond, or discharge on the condition that you enter into an agreement to participate in an 'intervention program' (for example, a drug rehabilitation program) and comply with the plan arising from that program;
  • a deferred sentence (with or without conditions);
  • a suspended sentence, on the condition that you enter into a good behaviour bond;
  • a fine;
  • a community service order;
  • a good behaviour bond (recognisance) for a fixed period;
  • home detention (not an option for many serious offences);
  • an 'intensive correction order', which may include regimes of drug testing, curfews and so on, for up to two years;
  • committal to a hospital for treatment;
  • a 'non-association' or 'place restriction' order – that is, an order prohibiting you from associating with a specified person, or from frequenting or visiting a specified place, for a set period of time; or
  • a period of imprisonment.

A magistrate or judge may impose conditions on non-custodial orders. You may be:

  • sentenced to a bond on condition that you be of good behaviour for a certain period;
  • ordered to do community service for a certain number of hours;
  • ordered to undergo relevant treatment;
  • fined; or
  • even ordered to pay compensation to the victim.

A magistrate or judge might alternatively sentence you to periodic or home detention or an 'intensive correction order'. However, these may not be available if you have been convicted of certain offences or if you have a history of convictions for violent offences.

Under sentencing law, when a magistrate or judge orders a sentence of imprisonment, he or she may set a non-parole period of imprisonment (the 'minimum sentence'), and then an additional period during which you may be released under supervision ('parole').

Where the offence is not dealt with summarily, the judge generally sets a non-parole period. There may be 'standard' non-parole periods for particular offences, and where the judge sets a higher or lower non-parole period, he or she must give reasons for doing so.

A non-parole period will usually not be set if your sentence is for a period of six months or less, or if the magistrate or judge considers that it is appropriate not to set one due to the nature of the offence or your previous character, any other penalties previously imposed on you, or for any other reason that he or she considers sufficient.

Your sentence will usually be backdated to take account of any pre-trial custody. If you are already serving a sentence for another offence, the second sentence will generally be served concurrently with (that is, at the same time as) your first sentence.

It is possible to have outstanding offences taken into account when you are being sentenced for a particular offence. A document must be filed with the court containing a list of one or more other offences with which you have been charged, but not yet convicted. As long as the prosecutor consents, you can ask to have such offences taken into account when you are sentenced for the offence for which you were convicted. This means, of course, that you will have to plead guilty to these additional charges.

The magistrate or judge will probably give you a heavier sentence for that one offence (because she or he is taking the other offences into consideration), but cannot exceed the maximum penalty for the one offence. Be careful. This procedure is only helpful if you were planning to plead guilty to the other offences anyway; don't be pressured into pleading guilty if that is not what you want to do. You still have the right to make the State prove your guilt beyond reasonable doubt.

Sentencing of juveniles

Several schemes apply to the sentencing of juvenile offenders. For example, the Young Offenders Act 1997 (NSW) provides a diversionary scheme for young offenders, which involves warnings, cautions and youth justice conferences.

The purpose of a youth justice conference is to determine an 'outcome plan' in relation to the child. This could involve an apology for the victim, making reparation to the victim, or community service work. If the child completes the outcome plan successfully, he or she will not be prosecuted for the offence. The Act covers most offences, except an offence resulting in death, certain sexual offences, driving offences and apprehended violence offences.

Costs

If a summary charge against you is dismissed, or you are discharged at committal, you can apply to the magistrate for an order for costs. The magistrate has a discretion to order the informant (usually the police) to pay you 'just and reasonable' costs.

The court might not award costs in your favour if your conviction is set aside on appeal unless it is satisfied that:

  • the investigation was conducted in an unreasonable or improper manner;
  • the proceedings were initiated without reasonable cause or in bad faith, or were improperly conducted by the prosecutor;
  • the prosecution unreasonably failed to investigate, or to investigate properly, a relevant matter, of which it was or should have been aware, and the court suggested that you might not be guilty or that the proceedings should not have been brought; or
  • because of other exceptional circumstances relating to the prosecutor's conduct of the proceedings, it is reasonable and just to award costs to you.

In New South Wales, you may be able to apply for a certificate under the Costs in Criminal Cases Act 1967 (NSW). This scheme is broader, in that it applies to persons who are acquitted from either a summary or indictable offence, and the grounds for awarding costs are not as strict.

A magistrate or judge may grant a certificate if he or she considers that when or before the proceedings were instituted, the prosecution had enough evidence to show that it would not have been reasonable to proceed, or that an act or omission by the defendant contributed, or might have contributed, to the institution or continuation of the proceedings, but was reasonable in the circumstances.

If your conviction is 'quashed' on appeal by the Court of Criminal Appeal (CCA), the court will not grant costs but the Registrar has the power to pay a certain amount for the cost of your legal representation.

Note that magistrates' orders and the certificate allow for 'reasonable' costs; however, these are not always the same as the fees lawyers charge.