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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:
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:
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.
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:
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.
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):
The following offences under the Criminal Code Act 1995 (Cth) where they involve a person under 16:
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.
If you are going to court for a criminal offence, call Sydney Criminal Lawyers® anytime on (02) 9261 8881 to arrange a free first conference with a specialist criminal defence lawyer.
We have criminal lawyers in Parramatta, Liverpool, the Sydney CBD as well as several other offices across the Sydney metropolitan area and beyond.