I’m Going to Court for a Criminal Offence. Will I Go to Prison?

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Prison tower

“I’ve been accused of a criminal offence, am I looking at a prison sentence?”

This question, or a variant of it, is regularly asked by clients who are charged with criminal offences, particularly by those who have been accused for the first-time and are therefore unfamiliar with the criminal justice system, its objectives and the way offences are dealt with by the courts.

The fear of being sent to prison is natural, rational and reasonable given both the unfamiliarity and the maximum penalties attached to many offences; penalties which are often stated in terms of years in prison.

But while maximum penalty is one of the factors considered by a court during the sentencing process for a person who pleads guilty to, or is found guilty of, a criminal offence, there are many other features considered by the court – both subjective (personal matters relating to the defendant) and objective (aspects of the offending conduct itself).

Moreover, it is crucial to bear in mind that a person who is charged with a criminal offence is presumed innocent until and unless proven to be guilty in a court or tribunal of law.

By extension, this means that being accused – in the form of a court attendance notice from police or otherwise – is a far cry from being found guilty, receiving a conviction and receiving what is regarded under the law as a penalty of last resort – a sentence of imprisonment.

In fact, the prosecution will bear the onus of proving each of the essential elements in a criminal case beyond a reasonable doubt, and in the event the defendant raises evidence of a legal defence, the prosecution will bear an additional onus of disproving that defence to the same high legal standard.

With that explanation out of the way, let’s take a look at the penalties actually imposed by the courts for those who are found to have committed some of the most frequently-prosecuted criminal and traffic offences.

Sentencing statistics for common offences

The following table sets out the number and percentage of guilty first-offenders who were sent to prison after being sentenced in the Local Court.

The figures are published by the body that regulates Magistrates, Judges and Justices in our state, The Judicial Commission of New South Wales.

It is important to note these are general statistics and the Commission’s website breaks the figures down according to age, whether the defendant was incarcerated or at liberty at the time of sentencing, whether he or she pleaded guilty or was found guilty, whether it was a first or subsequent offence, whether the sentencing took place in the Local Court or a higher court, and so on.

A good criminal defence lawyer will be able to provide such case-specific sentencing statistics during a client conference.


Offence Section / Act Maximum prison sentence Number of cases Number sent to prison Percentage sent to prison
Common assault s61 / Crimes Act 1900 2 years 11,341 33 0.2%
Assault occasioning actual bodily harm s59 Crimes Act 1900 5 years 4,421 14 2.4%
Sexual touching (general offence) s61KC(a) Crimes Act 1900 5 years 286 21 7.3%
Break, enter and commit serious indictable offence (steal) s112(1)(a) Crimes Act 1900 14 years 179 29 16.2%
Possess prohibited drug s10 Drug Misuse and Trafficking Act 1985 2 years 10,304 3 0.03%
Supply or knowingly take part in supply of small quantity of prohibited drug s25(1) Drug Misuse and Trafficking Act 1985 15 years 379 4 1.1%
Stalk/intimidate s13 Crimes (Domestic and Personal Violence) Act 2007 (domestic relationship) 5 years 4,107 50 1.2%
Stalk/intimidate s13 Crimes (Domestic and Personal Violence) Act 2007 (personal relationship) 5 years 1,154 18 1.6%
Contravene AVO s14 Crimes (Domestic and Personal Violence) Act 2007 (domestic relationship) 2 years 1,632 18 1.1%
Contravene AVO s14 Crimes (Domestic and Personal Violence) Act 2007 (personal relationship) 2 years 108 1 0.9%
Driving with a mid-range prescribed concentration of alcohol s110(4)(a) Road Transport Act 2013 9 months 11,019 2 0.02%
Driving with a high-range prescribed concentration of alcohol s110(5)(a) Road Transport Act 2013 18 months 3,958 19 0.5%
Negligent driving occasioning grievous bodily harm s117(1)(b) Road Transport Act 2013 12 months 603 0 0%
Negligent driving occasioning death s117(1)(a) Road Transport Act 2013 18 months 78 1 1,3%


The above statistics come with a strong disclaimer, which is that each case is assessed on its merits and, once again, the maximum penalty remains an important consideration during the sentencing process.

And while a sentence of imprisonment may be unlikely for first-time offenders accused of the above offences, engaging an experienced, specialist criminal defence lawyer can nevertheless make an enormous difference to the ultimate outcome – whether that result be having the charge/s withdrawn (dropped) at an early stage after the submission of ‘representations’ to prosecutors (formal letters setting-out the why the case should be ‘dropped’) followed up by negotiations, having the case dismissed in court or taking important steps to minimise the seriousness of the offence through negotiating the police ‘fact’ (allegations), referring to programs and/or courses, guiding in the proper preparation of documents such as character references and a letter of apology, and persuasively presenting the case in court.

In the context of a guilty plea, the latter-outlined steps can make the difference between having a conviction recorded against a person’s name (plus a licence disqualification in the case of a major traffic offence) and avoiding a conviction altogether through a non-conviction order such as a section 10(1)(a) dismissal, a conditional release order without conviction or a section 14 mental health discharge.

Some unintentional offences can lead to prison

All of that said, there are offences that are frequently committed by otherwise law-abiding citizens who would never dream of being on the wrong side of the law, let alone finding themselves facing a long stint behind bars.

One such offence is dangerous driving occasioning death, which is contained in section 52A(1)(c) of the Crimes Act 1900 and carries a maximum penalty of 10 years in prison.

According to the Judicial Commission, 63.4% of first-time offenders were sentenced to full-time imprisonment for that offence between 24 September 2018 and 31 December 2022.

One of the reasons for what may seem a sentencing anomaly considering the penalties handed-down for offences such as negligent driving occasioning death or GBH is a decision of highest criminal court in our state, the New South Wales Court of Criminal Appeal judgement in R v Whyte [2002] NSWCCA 343.

The decision is what’s known as a ‘guideline judgement’, which is one designed to both ensure consistency in sentencing and that those who commit prevalent offences are sufficiently penalised, thereby acting as a general deterrence to other would-be offenders.

In that case, the court prescribed that for the offence of dangerous driving occasioning death:

“A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement”.

The judgement makes clear that the ‘typical case’ for the offence involves a young offender of good character with no prior criminal history with genuine remorse who pleads guilty at the first available opportunity – all of which would be considered significant ‘mitigating factors’ (factors which can make the offence less serious and thereby reduce the penalty) for most other offences.

And while many might think they would never drive ‘dangerously’, the High Court decision in Jiminez v The Queen [1992] HCA 14 explains that the term may apply to a broader range of driving conduct than one might expect.

In that unanimous judgement, their Honours made clear not only that a range of factors will be considered when determining whether a person’s manner of driving amount to being ‘dangerous’ but that conduct engaged in by many otherwise well-intention drivers – specifically driving when tired – may suffice.

“……for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public.

Various matters will be relevant in reaching such a conclusion.

The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations.

And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness.

But so far as “driving in a manner dangerous” is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public.

The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury”.

Other factors amounting to dangerousness are contained in the legislation itself, and the offence does not require recklessness let alone an intention to pose a risk to or harm anyone.

Going to court?

If you are going to court for a criminal or traffic offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 for realistic and forthright case-specific legal advice and formidable legal representation from a specialist defence lawyer who represents clients in these cases on a daily basis, who will take you through the law, any available defence, your options and the best way forward, and fight to achieve the best possible result in your case.

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James Clements

James Clements was admitted as a lawyer in 2004 and has had a long and diverse career in both law and public service. He is a highly-respected criminal defence lawyer and a Senior Associate with Sydney Criminal Lawyers.

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