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Penalties in NSW – Prison

‘Full-time custody’ (also called ‘imprisonment’ or ‘prison’) means going to prison for a certain period of time (eg 2 years).

It is important to be aware that a Court cannot sentence someone to imprisonment unless no other penalty is appropriate (section 5(1) of the Crimes (Sentencing Procedure) Act 1999).

When sentencing someone to full-time custody, the Judge should set a full-term of the sentence (eg 4 years) and also a separate ‘non-parole period’ (which is the minimum term the offender must serve before being eligible for release; eg 3 years) (s44(1)).

The ‘non-parole period’ should not be less than three-quarters of the full-term of the sentence unless the Judge finds that there are ‘special circumstances’ justifying a reduction (s44(2)).

However, the Judge can refuse to set a ‘non-parole period’ for any reason he or she considers ‘sufficient’ eg if the offence is especially serious, if the offender has a particularly bad criminal record etc (s45(1)).

In such cases, the Judge must record the reasons for not setting a ‘non-parole period’.

The Judge must not set a ‘non-parole period’ if the term of imprisonment is 6 months or less (s46).

In such cases, the Judge must explain the reasons for not imposing a penalty other than imprisonment (s5(2)).

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