Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (‘the Act’) makes clear that a court “must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
This is the statutory embodiment of the common law principle that prison is the last resort when it comes to sentencing.
This means a person must be sentenced to an alternative to imprisonment if that option is appropriate in the circumstances and available to the court.
When determining whether a prison sentence is appropriate, a sentencing court must follow three steps:
The first step is to determine whether there is an alternative to the imposition of a sentence of imprisonment.
Since 24 September 2018, the only alternatives to imprisonment available to the court are:
- non-conviction orders such as section 10(1)(a) dismissals, section 10(1)(c) bonds conditional upon entering an intervention program and conditional release orders without convictions,
- conditional release orders with convictions, and
- community correction orders (which subsumed and expanded section 9 bonds).
If none of those alternatives are appropriate, it is said that the ‘section 5 threshold’ has been crossed – which means only a sentence of imprisonment is appropriate.
That being decided, the next step is to determine the length of the prison sentence.
In that regard, section 5(2) of the Act provides that a court that imposes a sentence of 6 months or less must indicate and record its reasons for doing so, including:
- why a penalty other than imprisonment is inappropriate, and
- why it did not make an order to participate in an intervention, treatment or rehabilitation program.
One a sentence has been set, the court must consider whether any statutory alternatives to full time imprisonment are available and appropriate.
If they are either unavailable or inappropriate, the court will sentence the defendant to serve his or her sentence by way of full time imprisonment.
Alternatives to full-time custody
Before 24 September 2018, a court which found that prison was the only appropriate penalty could – depending on the length of the sentence imposed – order the defendant to serve that sentence by way of:
- an intensive correction order (which was subject to different rules),
- home detention,
- a suspended sentence, or
- compulsory drug treatment detention.
But since that time, the only options available to the court have been an intensive correction order (ICO) or compulsory drug treatment detention.
An ICO can only be imposed for sentences of two years or less.
But perhaps an even greater restriction on the use of ICO’s is contained in the new section 67 of the Act, which makes clear the orders are unavailable for a whole range of offences.
In practical terms, this means that once the ‘section 5 threshold’ has been crossed for any one of the listed offences, the court must sentence the defendant to imprisonment regardless of the fact that the prison sentence is two years or less or that the defendant is otherwise suitable.
It essentially removes the court’s ability to determine whether the ICO would be an appropriate sentence given the nature of the offence itself and the subjective circumstances of the particular defendant.
Which offences are excluded?
Section 67 prohibits magistrates and judges from ordering ICOs for any of the following offences:
(a) murder or manslaughter,
(b) any prescribed sexual offence, which includes:-
The following offences under the Crimes Act 1900 (NSW):
- Sexual assault,
- Aggravated sexual assault,
- Aggravated sexual assault in company,
- Assault with intent to have sexual intercourse,
- Sexual touching which involves a person under 16,
- Aggravated sexual touching which involves a person under 16,
- Sexual act which involves a person under 16,
- Aggravated sexual act which involves a person under 16,
- Sexual intercourse with child under 10,
- Attempting or assaulting with intent to have sexual intercourse with child under 10,
- Sexual intercourse – child between 10 and 16,
- Assault with intent to have sexual intercourse – child between 10 and 16,
- Sexual touching – child under 10,
- Sexual touching – child between 10 and 16,
- Sexual act – child under 10,
- Sexual act – child between 10 and 16,
- Aggravated sexual act – child between 10 and 16,
- Sexual act for production of child between abuse material – child under 16,
- Persistent sexual abuse of a child,
- Procuring or grooming child under 16 for unlawful sexual activity,
- Grooming a person for unlawful sexual activity with a child under the person’s authority, where child is under 16,
- Incest which involves a person under 16,
- Sexual assault by forced self-manipulation,
- Causing sexual servitude,
- Conduct of business involving sexual servitude,
- Promoting or engaging in acts of child prostitution,
- Obtaining benefit from child prostitution,
- Using premises for child prostitution,
- Using children for production of child abuse material,
- Production, dissemination or possession of child abuse material,
- Voyeurism which involves a person under 16,
- Filming a person under 16 who is engaged in a private act, and
- Filming the private parts of a person who is under 16.
The following offences under the Criminal Code Act 1995 (Cth) where they involve a person under 16:
- Unlawful sexual penetration,
- Threatening to commit sexual penetration,
- Child trafficking,
- Domestic child trafficking,
- Sexual intercourse with child outside Australia,
- Sexual activity (other than sexual intercourse) with child outside Australia,
- Persistent sexual abuse of child outside Australia,
- Sexual intercourse with young person outside of Australia – defendant in position of trust or authority,
- Sexual activity (other than sexual intercourse) with young person outside of Australia – defendant in position of trust or authority,
- Procuring child to engage in sexual activity outside Australia,
- Grooming child to engage in sexual activity outside Australia,
- Possessing, controlling, producing, distributing or obtaining child pornography or child abuse material outside Australia,
- Using a postal or similar service for child pornography material,
- Possessing, controlling, producing, distributing or obtaining child pornography or child abuse material for use through a postal or similar service,
- Using a postal or similar service to groom, procure or send indecent material to a person,
- Using a carriage service for child pornography material or child abuse material,
- Possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use through a carriage service,
- Using carriage service for sexual activity, and
- Using a carriage service to groom, procure or transmit indecent communication.
Offences relating to child pornography or child abuse material under section 233BAB of the Customs Act 1901 (Cth).
(c) a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900 ,
(d) an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016,
(e) an offence relating to a contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002 ,
(f) an offence involving the discharge of a firearm,
(g) an offence that includes the commission of, or an intention to commit, or attempt, or conspire to commit or incite, an offence referred to in any of the paragraphs (a)-(f) above.
Charged with a criminal offence?
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