How sentencing works
After you enter a plea of guilty, or you are found guilty of an offence following a hearing or trial, the magistrate or judge will determine the type of penalty that you will receive. This part of the court process is known as sentencing.
Courts aim to be fair and reasonable and will consider all the facts and circumstances of your case in determining your sentence. The magistrate or judge will usually aim to fulfill a goal through your sentence, such as ensuring that you are adequately punished for any wrongdoing, to protect the community, to promote your rehabilitation, to prevent future crime and so on.
Ultimately, the type of penalty that you will receive will depend on the facts and circumstances of your case. The types of penalties that may apply include:
You can think of a section 10 as a ‘best case scenario’ – while it means that you have been found guilty of the offence, the charges against you will be dismissed and no conviction will be recorded on your criminal record.
Sometimes, having a criminal record will affect your ability to work and travel. Receiving a section 10 is therefore highly desirable as it avoids these negative impacts and allows you to continue living your life without worrying about whether your job or travel plans will be affected.
It is also preferable to other penalties, such as a good behaviour bond or community service order, which may impose restrictive conditions that can affect your work and personal life.
It is often thought that you will be more likely to receive a section 10 for minor offences; however they can also be imposed in more serious cases if ‘extenuating factors’ can be demonstrated. In the case of R v Mauger , 32 year-old Oliver James Tama Mauger pleaded guilty to supplying 20 ecstasy pills, as well as possession of 3.1g of cannabis at a music festival. Luckily, the court saw that Mauger was deserving of a second chance due to his age and minimal chances of reoffending, and gave him a section 10.
A fine is a monetary penalty which is imposed by the court.
Some offences carry a maximum fine, usually worded as ‘X penalty units.’ In NSW, a penalty unit is $110 – e.g. a fine of 50 penalty units will mean a fine of $5,500.
In determining the amount of the fine, the court will take into consideration your financial situation – the court isn’t allowed to impose a fine that you are unable to pay.
You must pay a fine within 28 days of the court ordering you to pay the fine. If you fail to pay the fine within 28 days, an additional fine of $65 will apply, and the State Debt Recovery Office can take further action such as suspending or cancelling your driver’s license, deducting money from your bank account, or making a community service order.
If you’re finding it difficult to pay the fine, you can ask the court for an extension of up to 28 days. Alternatively, you can apply to pay the fine in installments, or, if you receive a Centrelink benefit, you can apply to have the fine taken out of your Centrelink benefit.
A good behaviour bond is an undertaking that you will be of good behaviour for a certain period. The maximum length of a bond is 5 years. A bond can’t be imposed in addition to a community service order.
Aside from requiring you to be of ‘good behaviour,’ the court might impose additional conditions for the length of the bond. Examples of additional bond conditions are:
- That you do not enter a certain area
- That you do not associate with specific people
- That you undertake counseling or rehabilitation
However, these conditions must be reasonable and cannot be unnecessarily onerous. If you feel that your bond conditions are too harsh, you can apply for a variation to your bond conditions.
If you’re issued with a bond, you must appear before court if you are asked to do so at any time during the length of the bond. You must also be of good behaviour for the duration of the bond and stick to any additional conditions that the court imposes.
It’s important that you stick to the conditions of your bond, because there can be serious consequences if you end up breaching your bond. If you breach your bond, you will be called back before the court and the court might issue a warrant for your arrest. The court may then vary the conditions of your bond, impose further conditions on your bond, or revoke the bond and re-sentence you.
A deferred sentence, also known as a ‘Griffith remand,’ is where the court delays sentencing you for up to 12 months to allow you to undertake rehabilitation or an intervention program, to demonstrate that you have undertaken rehabilitation or an intervention program, or for some other purpose.
The magistrate or judge will usually issue you with a Griffiths remand where they feel that you might benefit from the chance to address your problems through rehabilitation.
You don’t need a court order to begin rehabilitation, and you might even want to consider getting involved in a rehabilitation program before your sentencing date. This may help you get a more lenient sentence as it will show the court that you have taken action to address your drug problems.
If you’re still undertaking rehabilitation on the date that you’re sentenced, the court might issue you with a Griffiths Remand and delay sentencing to allow you to complete the rehabilitation program.
A community service order is an order by the court for you to do some form of unpaid work in the community for a specified number of hours.
The type of work that is involved can include charity work, participation in personal development or educational programs, or community work such as graffiti removal.
The maximum length of a community service order is 500 hours, however there are also limits based on the maximum terms of imprisonment for an offence:
- Where the maximum prison term for the offence is 6 months imprisonment, the maximum length of a community service order will be 100 hours
- Where the maximum prison term for the offence is more than 6 months, but less than one year, the maximum term of a community service order is 200 hours
- Where the maximum prison term for the offence is greater than one year, the maximum length of a community service order is 500 hours.
- For children under 16, the maximum community service order is 100 hours, or 250 hours for children over 16.
In deciding whether a community service order is the right penalty in your case, the court will consider whether you’re a suitable person to work in the community and whether there is appropriate community service work in your area.
If you’re issued with a community service order, it’s important that you stick to the conditions of the order. This is because a breach of a community service order can have serious consequences – the community service order may be revoked and you may be re-sentenced.
If you are sentenced to imprisonment for 2 years or less, the court might determine that an alternative to gaol is appropriate. An intensive correction order is one of the alternatives available to the court in this case.
While an ICO is still technically a form of imprisonment, you won’t actually go to gaol. However, an ICO will still severely limit your freedom by requiring you to stick to conditions such as:
- Wearing an ankle bracelet which electronically monitors your movements
- Sticking to curfew conditions
- Undertaking a minimum of 32 hours community service work per month
- Drug and alcohol testing
- Regular face-to-face contact with a supervisor
Intensive correction orders can’t be issued for sexual assault offences, or sexual offences where the victim is under the age of 16.
Before the court decides to issue an ICO, you will be required to undertake an assessment to determine whether you’re a suitable candidate. The assessment will take into consideration things like your criminal record, whether you’re likely to reoffend, whether you are a risk to the community or your family, and whether there is suitable accommodation for you.
If you breach an ICO, the consequences are especially serious as there is a possibility that you will end up in full-time gaol.
If you are sentenced to imprisonment for 18 months or less, the court might determine that an alternative to gaol is appropriate. Home detention is one of the alternatives available to the court in this case.
Home detention essentially involves you serving the prison sentence in your own home. You will be subject to electronic monitoring using an ankle band. The court may also impose additional conditions, for example, requiring you to undertake community service.
You won’t be eligible for home detention in certain cases:
- Where the offence is one of murder, manslaughter, sexual assault, armed robbery, assault occasioning actual bodily harm, stalking or firearms offences
- If you have a criminal record for any of these offences
- If you’ve been convicted of a domestic violence offence or you’ve been the subject of an AVO in the past 5 years and you wish to live with the victim.
In assessing whether home detention may be suitable for you, the court will look at things such as:
- Your criminal record
- Whether you’re likely to reoffend
- Whether you are depending on drugs or alcohol
- Whether your work or study commitments would interfere with a home detention order
- Whether the people who you would be living with are appropriate
It’s important that you do not breach a home detention order. If you fail to stick to the conditions of your home detention order, the order may be revoked and you may be re-sentenced to full-time imprisonment.
If you are sentenced to imprisonment for 2 years or less, the court might determine that an alternative to gaol is appropriate. A suspended sentence is one of the alternatives available to the court in this case.
A suspended sentence basically involves you entering into a good behaviour bond for the period of the gaol sentence. However, it is a more serious penalty than a bond because if you breach the bond, it is possible that you will be sentenced to full-time imprisonment, home detention or an intensive correction order.
Full-time imprisonment is only used as a last resort when there is no other appropriate alternative in the circumstances.