Division 3, s17A(1) of the Crimes Act 1914 (Cwth) states that a court cannot impose a period of full-time imprisonment for a commonwealth offence unless it is satisfied that no other sentence is available in the circumstances.
This means that before sentencing a person to imprisonment, the court must consider all other sentencing options such as bonds, community service orders, home detention orders, intensive correction orders etc and reject them as appropriate sentencing options.
The remainder of Division 3 of the Act essentially states that the sentencing regime for imprisonment in commonwealth offences should be similar to the state sentencing regime; including rules about setting ‘non-parole periods’ (or ‘minimum terms’) etc.
When sentencing someone to prison, the court should set a full-term of the sentence (eg 4 years) and a non-parole period or ‘minimum term’; which is the minimum amount of time that person must spend in prison before being eligible for release on parole (eg 3 years).
The minimum term should be at least three-quarters of the full-term unless the court finds that there are ‘special circumstances’ justifying a reduction; eg if the person is young with good prospects of rehabilitation etc.
However, the court can refuse to set a minimum term for any reason it considers ‘sufficient’ eg if the crime is extremely vicious, if the person has a very bad criminal record and high likelihood of reoffending etc.
In such cases, the court must record its reasons for refusing to set a minimum term.
The court must not set a minimum term if the term of imprisonment is 6 months or less.
In that case, there must be a single ‘fixed term’ of imprisonment eg 4 months.