New South Wales act

Crimes (Sentencing Procedure) Act 1999

In ForceNSW

Jurisdiction

New South Wales

Act Number

92 of 1999

Collection

act

Plain English Summary

8/10 complexity

This Act sets the rules for sentencing in New South Wales, directing courts to prioritize non‑custodial options where suitable, create and supervise community‑based orders, and tighten procedures around plea‑related admissions and domestic‑violence cases. It also establishes a Sentencing Council, reporting duties, and transitional arrangements for older orders.

It mainly affects courts, corrections agencies, the DPP, offenders and program providers — plus media via limited publication restraints — and reallocates decision, monitoring and administrative costs toward community supervision and prosecutorial certification.

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What it does

The Crimes (Sentencing Procedure) Act 1999 (the Act) establishes the procedural framework for imposing sentences in New South Wales criminal courts following a finding of guilt. At its core, it requires courts to determine an appropriate penalty by reference to the purposes enumerated in s 3A, which include ensuring adequate punishment (s 3A(a)), deterring the offender and others (s 3A(b)), protecting the community (s 3A(c)), promoting rehabilitation (s 3A(d)), making the offender accountable (s 3A(e)), denouncing the conduct (s 3A(f)), and recognising harm to the victim and community (s 3A(g)). These purposes are not exhaustive but must be weighed alongside objective and subjective factors under s 21A, which lists 16 aggravating factors (e.g., use of violence per s 21A(2)(b), vulnerability of the victim per s 21A(2)(l), or motivation by hatred per s 21A(2)(h)) and 14 mitigating factors (e.g., remorse under s 21A(3)(i) only if the offender has accepted responsibility and made reparation, or a guilty plea per s 21A(3)(k) as further detailed in ss 22-25F).

The Act structures penalties in Part 2. Division 2 addresses custodial sentences, mandating under s 5(1) that imprisonment be imposed only where no other penalty is appropriate after considering alternatives. For sentences of six months or less, s 5(2) requires recorded reasons, including why alternatives like intervention programs were rejected. Section 7 permits intensive correction orders (ICOs) for sentences not exceeding two years for a single offence or three years in aggregate (s 68), directing service in the community subject to standard conditions (s 73: no further offences and supervision) and at least one additional condition under s 73A (e.g., home detention, curfew, community service up to 750 hours, or rehabilitation). Division 3 provides for non-custodial alternatives: community correction orders (CCOs) under s 8 instead of imprisonment, subject to standard conditions (s 88) and additional ones like community service up to 500 hours (s 89); conditional release orders (CROs) under s 9 discharging the offender with or without conviction, subject to standard conditions (s 98) and additional rehabilitation or abstention conditions (s 99). Section 10 allows dismissal without conviction or conditional discharge, while s 10A permits conviction with no penalty. Fines are addressed in Division 4, with s 15 allowing fines up to 1,000 penalty units on indictment where no penalty is specified, and s 17 defining a penalty unit as $110.

Current sections

Direct links to the current provisions in Crimes (Sentencing Procedure) Act 1999.

273

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

This Act is the Crimes (Sentencing Procedure) Act 1999.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Interpretation

3 Interpretation

(1) In this Act—

aggregate sentence of imprisonment—see section 53A.

associate with means—

(a) to be in company with, or

(b) to communicate with by any means (including post, facsimile, telephone and email).

authorised officer has the same meaning as it has in the Criminal Procedure Act 1986.

Commissioner means the Commissioner of Corrective Services, Department of Justice.

community correction order means an order referred to in section 8.

community corrections officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

community service work has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

community service work condition—see sections 73A and 89.

compulsory drug treatment detention means detention in accordance with Part 4A of the Crimes (Administration of Sentences) Act 1999.

conditional release order means an order referred to in section 9.

convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

correctional officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

Corrective Services NSW has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

court means—

(a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or

(b) any other court that, or person who, exercises criminal jurisdiction,

but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court.

detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987.

domestic violence offence has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007.

Drug Court means the Drug Court of New South Wales constituted under the Drug Court Act 1998.

exercise a function includes perform a duty.

full-time detention means detention in a correctional centre.

function includes a power, authority or duty.

graffiti offence means an offence under the Graffiti Control Act 2008.

home detention means detention in accordance with Part 4 of the Crimes (Administration of Sentences) Act 1999.

home detention condition—see section 73A.

inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

intensive correction has the same meaning as in the Crimes (Administration of Sentences) Act 1999.

intensive correction order means an order referred to in section 7.

intervention plan has the same meaning as in the Criminal Procedure Act 1986.

intervention program has the same meaning as in the Criminal Procedure Act 1986.

intervention program order means an order referred to in section 10 (1) (c).

juvenile justice officer has the same meaning as it has in the Children (Detention Centres) Act 1987.

juvenile justice officer means a juvenile justice officer employed in the Department of Justice.

non-association order means an order referred to in section 17A (2) (a).

non-parole period means a non-parole period referred to in section 44 (1).

offender means a person whom a court has found guilty of an offence.

Parole Authority means the State Parole Authority constituted by section 183 of the Crimes (Administration of Sentences) Act 1999.

person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987.

place restriction order means an order referred to in section 17A (2) (b).

proceed to a conviction includes record a conviction.

sentence means—

(a) when used as a noun, the penalty imposed for an offence, and

(b) when used as a verb, to impose a penalty for an offence.

Sentencing Council means the New South Wales Sentencing Council constituted under Part 8B.

sentencing court, in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed.

supervision condition—see sections 73, 89 and 99.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) In this Act—

(a) a reference to a sentence of imprisonment to which an offender is subject includes a reference to a sentence that has been imposed but is yet to commence, and

(b) a reference to the term of a sentence of imprisonment is, if the term is varied under this or any other Act, a reference to the term as so varied, and

(c) a reference to a non-parole period of a sentence of imprisonment is, if the period is varied under this or any other Act, a reference to the period as so varied, and

(d) a reference to a court that has sentenced an offender, made an order or given a direction includes a reference to the same court differently constituted, and

(e) a reference to a condition that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory, and

(f) a reference to an obligation that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory.

(3) Notes in the text of this Act do not form part of this Act.

s 3: Am 2001 No 100, Sch 1.1 [1]; 2001 No 121, Sch 2.75 [1] [2]; 2002 No 90, Sch 3.2 [1] [2]; 2002 No 100, Sch 3 [1]; 2002 No 130, Sch 5 [1]; 2004 No 42, Sch 2 [1]; 2007 No 94, Schs 1.27 [1] [2], 2; 2010 No 48, Sch 1 [1]–[4]; 2010 No 136, Sch 2 [1]; 2012 No 57, Sch 1.2 [1]; 2015 No 15, Sch 3.17 [1]; 2017 No 53, Sch 1 [1]–[3]; 2018 No 87, Sch 1.13 [1]; 2020 No 26, Sch 1.7.

Purposes of sentencing

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

s 3A: Ins 2002 No 90, Sch 1 [1].

Part 2

Penalties that may be imposed

Part 2 Penalties that may be imposed

Division 1

General

Division 1 General

Penalties generally

4 Penalties generally

(1) The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law.

(2) The penalty to be imposed for a statutory offence for which no penalty is so provided is imprisonment for 5 years.

(3) Part 3 applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise.

s 4: Am 2000 No 43, Sch 3 [1].

Domestic violence offenders—requirement for full-time detention or supervision

4A Domestic violence offenders—requirement for full-time detention or supervision

(1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either—

(a) a sentence of full-time detention, or

(b) a supervised order.

(2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.

(3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.

s 4A: Ins 2017 No 53, Sch 1 [4].

Domestic violence offenders—protection and safety of victims

4B Domestic violence offenders—protection and safety of victims

(1) An intensive correction order must not be made in respect of—

(a) a sentence of imprisonment for a domestic violence offence, or

(b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,

unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).

(2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

(3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.

s 4B: Ins 2017 No 53, Sch 1 [4].

Division 2

Custodial sentences

Division 2 Custodial sentences

pt 2, div 2, hdg: Rep 2004 No 42, Sch 2 [4]. Ins 2004 No 42, Sch 2 [2].

Penalties of imprisonment

5 Penalties of imprisonment

(1) 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.

(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including—

(a) its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.

(5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.

s 5: Am 2002 No 100, Sch 3 [2]; 2010 No 48, Sch 1 [5]; 2017 No 53, Sch 1 [5]; 2020 No 30, Sch 2.10[1].

Compulsory drug treatment detention

5A Compulsory drug treatment detention

The Drug Court may make an order under Part 2A of the Drug Court Act 1998 directing that an offender, who is an eligible convicted offender within the meaning of that Act, serve a sentence of imprisonment by way of compulsory drug treatment detention.

s 5A: Ins 2004 No 42, Sch 2 [3].

6

6 (Repealed)

Intensive correction orders

7 Intensive correction orders

(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

(2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

(3) This section does not apply to an offender who is under the age of 18 years.

(4) This section is subject to the provisions of Part 5.

Note.

Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.

s 7: Ins 2010 No 48, Sch 1 [8]. Subst 2017 No 53, Sch 1 [7].

Division 3

Non-custodial alternatives

Division 3 Non-custodial alternatives

Community correction orders

8 Community correction orders

(1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender.

(2) A community service work condition must not be imposed on a community correction order made in relation to an offender to whom the Children (Community Service Orders) Act 1987 applies.

(3) This section is subject to the provisions of Part 7.

s 8: Subst 2017 No 53, Sch 1 [8].

Conditional release orders

9 Conditional release orders

(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if—

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

Note.

These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction.

(3) To avoid doubt and without limitation—

(a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and

(b) a conditional release order with a conviction may be made as an alternative to imposing a fine.

(4) This section is subject to the provisions of Part 8.

s 9: Subst 2017 No 53, Sch 1 [9].

Dismissal of charges and conditional discharge of offender

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied—

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a conditional release order.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction—

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under the Victims Rights and Support Act 2013, Part 6, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

Note.

Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

s 10: Am 2000 No 43, Sch 3 [2]; 2002 No 100, Sch 3 [3] [4]; 2017 No 53, Sch 1 [10]–[13]; 2023 No 7, Sch 2.18.

10A

Conviction with no other penalty

10A Conviction with no other penalty

(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

Note.

The Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 provide for appeals against sentence, including (in some circumstances) by the prosecutor.

s 10A: Ins 2006 No 107, Sch 1.9 [1]. Am 2015 No 15, Sch 2.12.

Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes

11 Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes

(1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date—

(a) for the purpose of assessing the offender’s capacity and prospects for rehabilitation, or

(b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or

(b1) for the purpose of assessing the offender’s capacity and prospects for participation in an intervention program, or

(b2) for the purpose of allowing the offender to participate in an intervention program, or

(c) for any other purpose the court considers appropriate in the circumstances.

(1A) Proceedings must not be adjourned under this section unless bail for the offence is or has been granted or dispensed with under the Bail Act 2013.

(2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt.

(2A) An order referred to in subsection (1) (b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(3) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.

(4) Subsection (1) (b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program.

s 11: Am 2000 No 43, Sch 3 [3] [4]; 2002 No 100, Sch 3 [5]–[7]; 2014 No 5, Sch 2.13 [1]–[3].

12

12, 13 (Repealed)

Division 4

Fines

Division 4 Fines

14

14 (Repealed)

Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment

15 Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment

(1) This section applies to all offences dealt with on indictment, other than offences for which the penalty that may be imposed (otherwise than under this section) includes a fine.

(2) A court may impose a fine not exceeding 1,000 penalty units on an offender whom it convicts on indictment of an offence to which this section applies.

(3) The fine may be imposed in addition to or instead of any other penalty that may be imposed for the offence.

Fines for bodies corporate for offences punishable by imprisonment only

16 Fines for bodies corporate for offences punishable by imprisonment only

If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding—

(a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or

(b) 100 penalty units, in any other case.

Penalty units

17 Penalty units

Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units.

Division 4A

Non-association and place restriction orders

Division 4A Non-association and place restriction orders

pt 2, div 4A: Ins 2001 No 100, Sch 1.1 [2].

17A

Non-association and place restriction orders

17A Non-association and place restriction orders

(1) This section applies to any offence that is punishable by imprisonment for 6 months or more, whether or not the offence is also punishable by fine or to an aggregate sentence of imprisonment in respect of 2 or more offences any one of which is an offence to which this section applies.

(2) When sentencing an offender for an offence to which this section applies, a court may make either or both of the following orders in respect of the offender—

(a) a non-association order, being an order prohibiting the offender from associating with a specified person for a specified term, or

(b) a place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district for a specified term,

if it is satisfied that it is reasonably necessary to do so to ensure that the offender does not commit any further offences to which this section applies.

(3) An order under subsection (2) (a) is to be one of the following—

(a) a limited non-association order, being an order prohibiting the offender from being in company with a specified person except at the times or in such circumstances (if any) as are specified,

(b) an unlimited non-association order, being an order prohibiting the offender—

(i) from being in company with a specified person, and

(ii) from communicating with that person by any means.

(3A) An order under subsection (2) (b) is to be one of the following—

(a) a limited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district except at the times or in such circumstances (if any) as are specified,

(b) an unlimited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district at any time or in any circumstance.

(4) An order under this section is to be made in addition to, and not instead of, any other penalty for the offence, but may not be made if the only other penalty for the offence is an order under section 10 or 11.

(5) The term of an order under this section is not limited by any term of imprisonment imposed for the offence, but must not exceed 12 months.

(6) This section does not limit the kinds of prohibition or restriction that may be imposed on an offender by means of any other order or direction under this or any other Act, so that such an order or direction may include prohibitions of the kind referred to in subsections (2) and (3).

(7) This section is subject to the provisions of Part 8A.

s 17A: Ins 2001 No 100, Sch 1.1 [2]. Am 2009 No 37, Sch 1.5 [1] [2]; 2010 No 136, Sch 2 [2].

Division 4B

Assessment reports

Division 4B Assessment reports

pt 2, div 4B: Ins 2017 No 53, Sch 1 [17].

17B

Definition of and provisions relating to “assessment report”

17B Definition of and provisions relating to “assessment report”

(1) In this Division—

assessment report means a report made by a community corrections officer or a juvenile justice officer under this Part.

(2) The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender during sentencing proceedings.

(3) An assessment report is made by a community corrections officer or a juvenile justice officer.

(4) The regulations may make provision for or with respect to matters to be addressed in, and the preparation and furnishing of, an assessment report.

s 17B: Ins 2017 No 53, Sch 1 [17].

17C

Request for assessment report

17C Request for assessment report

(1) Except as provided by section 17D—

(a) the sentencing court may request, but is not obliged to request, an assessment report on an offender, and

(b) such a request may be made at the following times only—

(i) after finding an offender guilty of an offence and before a sentence is imposed,

(ii) during sentencing proceedings after a sentence of imprisonment has been imposed on the offender,

(iii) during proceedings to impose, vary or revoke an additional or further condition on a community correction order or conditional release order that has been made in respect of the offender,

(iv) during proceedings to correct a sentencing error in accordance with section 43,

(v) during proceedings to re-sentence an offender after a court has revoked the offender’s community correction order or conditional release order,

(vi) during proceedings to determine an appeal against a sentence,

(vii) any other times prescribed by the regulations.

(2) If a court refers an offender for assessment in relation to a sentence and a sentence of imprisonment has been imposed in respect of the offence concerned—

(a) the referral stays the execution of the sentence and the operation of section 48, and

(b) the offender is to be remanded in custody, or granted bail in accordance with the Bail Act 2013,

until the court decides whether or not to make an intensive correction order.

s 17C: Ins 2017 No 53, Sch 1 [17] (am 2018 No 29, Sch 1.8 [1]). Am 2018 No 87, Sch 1.13 [2].

17D

Requirement for assessment report

17D Requirement for assessment report

(1) The sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender.

(1A) However, the sentencing court is not required to obtain an assessment report (except if required under subsection (2) or (4)) if it is satisfied that there is sufficient information before it to justify the making of an intensive correction order without obtaining an assessment report.

(2) The sentencing court must not impose a home detention condition on an intensive correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender.

(3) The sentencing court must not request an assessment report relating to the imposition of a home detention condition on an intensive correction order unless it has imposed a sentence of imprisonment on the offender for a specified term.

(4) The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender.

(5) The assessment reports referred to in this section may be in the 1 report or in more than 1 report.

Note.

See also sections 73A (3) and 89 (4) regarding the imposition of home detention conditions and community service work conditions.

s 17D: Ins 2017 No 53, Sch 1 [17] (am 2018 No 29, Sch 1.8 [2]).

Division 4C

Provisions relating to certain orders

Division 4C Provisions relating to certain orders

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17E

Definitions

17E Definitions

In this Division—

relevant orders means the following orders (or any combination of 1 or more of them)—

(a) intensive correction orders,

(b) community correction orders,

(c) conditional release orders.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17F

Multiple orders

17F Multiple orders

(1) Only 1 relevant order can be in force at the same time in respect of the same offence in relation to the same offender.

(2) Subject to subsection (1), 2 or more relevant orders can be in force at the same time in respect of 2 or more offences in relation to the same offender.

(3) For the purposes of subsection (1), an intensive correction order prevails over a community correction order, and a community correction order prevails over a conditional release order.

(4) For the purposes of subsection (2) and subject to sections 17G and 17H, if there is an inconsistency as to how any conditions of the relevant orders operate together, then to the extent of the inconsistency—

(a) a condition of an intensive correction order prevails over a condition of a community correction order, and

(b) a condition of a community correction order prevails over a condition of a conditional release order, and

(c) despite paragraphs (a) and (b), a standard condition prevails over a condition that is not a standard condition.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17G

Community service work conditions under multiple orders

17G Community service work conditions under multiple orders

(1) A relevant order (the new order) may not be made if the sum of—

(a) the number of hours of community service work to be performed under the new order, and

(b) the number of hours of community service work remaining to be performed under any other relevant order (an existing order),

exceeds 750 hours (if any one of the orders is an intensive correction order) or 500 hours (if all the orders are community correction orders).

Note.

Community service work conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders.

(2) In calculating the sum referred to in subsection (1), the hours of community service work to be performed under the new order are to be disregarded to the extent to which they run concurrently with those to be performed under any existing order.

(3) The hours of community service work to be performed under the new order are taken to run concurrently with those to be performed under any existing order.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17H

Curfew conditions under multiple orders

17H Curfew conditions under multiple orders

(1) This section applies where 2 or more curfew conditions apply under 2 or more relevant orders in respect of the same period of 24 hours (the period of 24 hours).

Note.

Curfew conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders.

(2) If all the relevant orders are intensive correction orders, this section does not affect the curfew conditions.

(3) If all the relevant orders are community correction orders, the following provisions apply—

(a) The offender cannot be required to observe a curfew in respect of more than 12 hours in the period of 24 hours. Any excess is to be disregarded.

(b) The offender is required in the period of 24 hours to observe only the curfew imposed by the 1 curfew condition that specifies more hours than the other or others.

(4) If at least 1 of the relevant orders is an intensive correction order and at least 1 is a community correction order, the following provisions apply—

(a) This section does not affect any curfew condition imposed on an intensive correction order.

(b) The offender cannot be required, as a result of the curfew conditions imposed on the relevant orders, to observe a curfew in respect of more than the greater of—

(i) the hours required by curfew conditions imposed on the intensive correction order or intensive correction orders in the period of 24 hours, or

(ii) 12 hours in the period of 24 hours.

Any excess is to be disregarded.

(c) In determining the number of hours under 2 or more curfew conditions imposed on 2 or more community correction orders, regard is to be had only to the 1 curfew condition that specifies more hours than the other or others.

(5) The regulations under the Crimes (Administration of Sentences) Act 1999 may make provision for or with respect to the manner of determining numbers of hours for the purposes of this section and any excess to be disregarded under this section.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17I

Explanation of relevant order to offender

17I Explanation of relevant order to offender

(1) Having made a relevant order in relation to an offender, the sentencing court must ensure that reasonable steps are taken to explain to the offender (in language that the offender can readily understand)—

(a) the offender’s obligations under the order, and

(b) the consequences that may follow if the offender fails to comply with those obligations.

(2) A relevant order is not invalidated by a failure to comply with this section.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

17J

Notice of relevant order to be given

17J Notice of relevant order to be given

(1) As soon as practicable after a relevant order is made, the registrar or another officer of the sentencing court must cause notice of the order to be given to the offender and to Corrective Services NSW.

(2) The notice must include such information about the relevant order as may be prescribed by the regulations.

(3) Notice of an order does not need to be given to Corrective Services NSW unless the order is subject to a supervision condition or a community service work condition.

(4) A relevant order is not invalidated by a failure to comply with this section.

pt 2, div 4C (ss 17E–17J): Ins 2017 No 53, Sch 1 [17].

Division 5

Miscellaneous

Division 5 Miscellaneous

Interpretation of provisions imposing penalties

18 Interpretation of provisions imposing penalties

(1) The penalty—

(a) specified at the end of a section of an Act (whether or not the section is divided into subsections), or

(b) specified at the end of a subsection of a section of an Act, but not at the end of the section, or

(c) specified at the end of a section of an Act or subsection of a section of an Act and expressed in such a way as to indicate that it applies to part only of the section or subsection,

indicates that a contravention of the section, subsection or part, respectively, is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified.

(2) For the purposes of subsection (1), a penalty specified at the end of the last subsection of a section is taken not to be specified at the end of the section if a penalty is specified at the end of any previous subsection.

(3) If—

(a) a section of an Act, or a subsection of a section of an Act, provides that a person is guilty of an offence under specified circumstances, and

(b) a penalty is specified at the end of the section or subsection and expressed in such a way as to indicate that it applies to the section or subsection,

a person who is guilty of such an offence is liable, on conviction, to a penalty not exceeding the penalty so specified.

(4) This section applies to a statutory rule in the same way as it applies to an Act, subject to any necessary modification.

(5) This section applies to a provision of an Act or statutory rule except in so far as the contrary intention appears in the Act or statutory rule concerned.

Effect of alterations in penalties

19 Effect of alterations in penalties

(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.

No double jeopardy

20 No double jeopardy

If an act or omission constitutes—

(a) an offence under a law of New South Wales, and

(b) an offence under a law of the Commonwealth or of some other State or Territory,

and a penalty has been imposed on the offender in respect of the offence referred to in paragraph (b), the offender is not liable to any penalty in respect of the offence referred to in paragraph (a).

Part 3

Sentencing procedures generally

Part 3 Sentencing procedures generally

General power to reduce penalties

21 General power to reduce penalties

(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.

(2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term.

(3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount.

(4) The power conferred on a court by this section is not limited by any other provision of this Part.

(5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties.

21A

Aggravating, mitigating and other factors in sentencing

21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b) the offence involved the actual or threatened use of violence,

(c) the offence involved the actual or threatened use of a weapon,

(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e) the offence was committed in company,

(ea) the offence was committed in the presence of a child under 18 years of age,

(eb) the offence was committed in the home of the victim or any other person,

(f) the offence involved gratuitous cruelty,

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was partially or wholly motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, gender identity, sexual orientation or age, or having particular variations of sex characteristics or a particular disability),

(i) the offence was committed without regard for public safety,

(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib) the offence involved a grave risk of death to another person or persons,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k) the offender abused a position of trust or authority in relation to the victim,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity,

(o) the offence was committed for financial gain,

(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A) Special rules for child sexual offences In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5AA) Special rule for self-induced intoxication In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

(5C) For the purpose of subsection (2) (p), an offence under any of the following provisions is taken to have been committed while a child under 16 years of age was a passenger in the offender’s vehicle if the offence was part of a series of events that involved the driving of the vehicle while the child was a passenger in the vehicle—

(a) section 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) or 29 (2) of the former Road Transport (Safety and Traffic Management) Act 1999,

(b) clause 16 (1) (a), (b) or (c), 17 (1) or 18 (1) of Schedule 3 to the Road Transport Act 2013.

(6) In this section—

child sexual offence means—

(a) an offence against section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

(b) an offence against section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or

(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or

(d1) an offence against a provision of the Crimes Act 1900 set out in Column 1 of Schedule 1A to that Act where the person against whom the offence was committed was then under the age of 16 years, or

(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs, or

(f) an offence under a previous enactment that is substantially similar to an offence referred to in any of the above paragraphs.

prescribed traffic offence means an offence under any of the following provisions—

(a) sections 9, 11B (1) and (3), 12 (1), 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) and 29 (2) of the former Road Transport (Safety and Traffic Management) Act 1999,

(a1) sections 110, 111 (1) and (3) and 112 (1) of the Road Transport Act 2013 and clauses 16 (1) (a), (b) or (c), 17 (1) and 18 (1) of Schedule 3 to that Act,

(b) sections 51B (1) and 52A (1) (a) and (3) (a) of the Crimes Act 1900,

(c) section 52A (2) and (4) of the Crimes Act 1900 in the circumstances of aggravation referred to in section 52A (7) (a), (c) or (d) of that Act.

self-induced intoxication has the same meaning it has in Part 11A of the Crimes Act 1900.

serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.

s 21A: Ins 2002 No 5, Sch 1 [1]. Subst 2002 No 90, Sch 1 [2]. Am 2006 No 27, Sch 1 [1] [2]; 2007 No 50, Sch 1 [1]–[7]; 2007 No 80, Sch 2.8 [1]; 2008 No 105, Sch 2.4 [1] [2]; 2009 No 28, sec 3 (1); 2011 No 64, Sch 1 [1]–[3]; 2013 No 19, Sch 4.12 [1]–[3]; 2014 No 2, Sch 3 [1]–[3]; 2017 No 55, Sch 2 [1] [2], 2017 No 62, Sch 1.2; 2018 No 29, Sch 1.7; 2018 No 33, Sch 3 [1]–[5]; 2024 No 71, Sch 4[1] [2]; 2025 No 11, Sch 2[1].

21B

Sentencing patterns and practices

21B Sentencing patterns and practices

(1) A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing.

(2) However, the standard non-parole period for an offence is the standard non-parole period, if any, that applied at the time the offence was committed, not at the time of sentencing.

(3) Despite subsection (1), a court may sentence an offender for an offence in accordance with the sentencing patterns and practices at the time the offence was committed if—

(a) the offence is not a child sexual offence, and

(b) the offender establishes that there are exceptional circumstances.

(4) When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing.

(5) This section does not affect section 19.

(6) In this section—

child sexual offence has the same meaning as in section 25AA.

s 21B: Ins 2022 No 44, Sch 1[1].

Guilty plea to be taken into account for offences not dealt with on indictment

22 Guilty plea to be taken into account for offences not dealt with on indictment

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account—

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

(5) This section applies only to a sentence for an offence that is dealt with summarily or to a sentence for an offence dealt with on indictment to which Division 1A does not apply.

Note.

Discounts for the utilitarian value of a guilty plea to other offences are provided for by Division 1A.

s 22: Am 2010 No 136, Sch 1.2 [1] [2]; 2017 No 55, Sch 2 [3].

22A

Power to reduce penalties for facilitating the administration of justice

22A Power to reduce penalties for facilitating the administration of justice

(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

s 22A: Ins 2001 No 7, Sch 3 [1]. Am 2010 No 136, Sch 1.2 [3].

Power to reduce penalties for assistance provided to law enforcement authorities

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

s 23: Am 2010 No 136, Sch 1.2 [4]–[6].

Court to take other matters into account

24 Court to take other matters into account

In sentencing an offender, the court must take into account—

(a) any time for which the offender has been held in custody in relation to the offence, and

(b) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community correction order, conditional release order or intervention program order—

(i) the fact that the person has been the subject of such an order, and

(ii) anything done by the offender in compliance with the offender’s obligations under the order, and

(c) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order, anything done by the offender in compliance with the offender’s obligations under the intervention program order, and

(d) in the case of an offender who is being sentenced following an order under section 11 (1) (b2)—

(i) anything done by the offender in compliance with the offender’s obligations under the order, and

(ii) any recommendations arising out of the offender’s participation in the intervention program or intervention plan.

s 24: Am 2002 No 100, Sch 3 [8] [9]; 2017 No 53, Sch 1 [18]–[20].

24A

Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing

24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing

(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender—

(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or

(b) has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or

(c) as a consequence of being convicted of the offence, has become a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012, or

(d) has or may become the subject of an order under the Crimes (High Risk Offenders) Act 2006, or

(e) has or may become the subject of an order under the Terrorism (High Risk Offenders) Act 2017.

(2) This section has effect despite any Act or rule of law to the contrary.

s 24A: Ins 2008 No 105, Sch 2.4 [3]. Am 2010 No 136, Sch 1.2 [7]; 2013 No 4, Sch 2.9 [1] [2]; 2013 No 31, Sch 3.6; 2017 No 54, Sch 2.2; 2017 No 68, Sch 2.10 [1].

24B

Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing

24B Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing

(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation.

(2) In this section—

confiscation or forfeiture legislation means the following—

(a) the Confiscation of Proceeds of Crime Act 1989,

(b) the Criminal Assets Recovery Act 1990,

(c) the Proceeds of Crime Act 2002 of the Commonwealth,

(d) any other law prescribed by the regulations for the purposes of this definition.

s 24B: Ins 2010 No 136, Sch 1.2 [8].

24C

Loss of parliamentary pension to be disregarded in sentencing

24C Loss of parliamentary pension to be disregarded in sentencing

In sentencing an offender who is a member or former member of Parliament, the court must not take into account, as a mitigating factor in sentencing, the loss of the offender’s entitlement to a pension under the Parliamentary Contributory Superannuation Act 1971 because of the conviction for the offence.

s 24C: Ins 2017 No 18, Sch 2.

Local Court not to impose certain penalties if offender is absent

25 Local Court not to impose certain penalties if offender is absent

(1) The Local Court must not make any of the following orders with respect to an absent offender—

(a) an order imposing a sentence of imprisonment,

(b) an intensive correction order,

(c) (Repealed)

(d) a community correction order,

(e) a conditional release order,

(f) a non-association order or place restriction order,

(g) an intervention program order.

(2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court—

(a) may issue a warrant for the offender’s arrest, or

(b) may authorise an authorised officer to issue a warrant for the offender’s arrest,

for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.

(2A) In deciding whether to issue, or authorise an authorised officer to issue, a warrant for the arrest of an absent offender who has lodged a written plea in accordance with section 182 of the Criminal Procedure Act 1986 for the offence concerned, the Local Court must consider whether it is more appropriate to adjourn proceedings.

(3) This section does not limit the power that any court other than the Local Court may have, apart from this section, to deal with an offender whom it has found guilty or convicted in his or her absence.

(4) In this section—

absent offender means an offender who is being dealt with in his or her absence, including a person who does not attend court because the person has lodged a written plea in accordance with section 182 of the Criminal Procedure Act 1986 in respect of the offence concerned.

s 25: Am 2000 No 43, Sch 3 [6]; 2001 No 100, Sch 1.1 [3]; 2001 No 121, Sch 2.75 [3] [4]; 2002 No 100, Sch 3 [10]; 2007 No 94, Schs 2, 3; 2010 No 48, Sch 1 [9]; 2017 No 53, Sch 1 [21]; 2020 No 31, Sch 1.6[1] [2].

25AA

Sentencing for child sexual offences

25AA Sentencing for child sexual offences

(1), (2) (Repealed)

(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4) (Repealed)

(5) In this section—

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c) an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).

s 25AA: Ins 2018 No 33, Sch 3 [6]. Am 2022 No 44, Sch 1[2].

Division 1A

Sentencing discounts for guilty pleas to indictable offences

Division 1A Sentencing discounts for guilty pleas to indictable offences

pt 3, div 1A: Ins 2017 No 55, Sch 2 [4].

25A

Application of Division

25A Application of Division

(1) This Division applies to a sentence for an offence that is dealt with on indictment, other than—

(a) an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or

(b) an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence.

(2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

s 25A: Ins 2017 No 55, Sch 2 [4].

25B

Definitions

25B Definitions

In this Division—

negotiations document means—

(a) if an offender was represented by an Australian legal practitioner in proceedings—

(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or

(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence—

(A) following committal for trial or sentence, or

(B) after an indictment containing a new count offence is filed, or

(b) if an offender was not represented in proceedings, any document served on the prosecutor in the proceedings that records an offer made by the offender to plead guilty to an offence specified in the document.

new count offence means—

(a) an offence the subject of an ex officio indictment, or

(b) an offence for which the count is inserted in an indictment by amending the indictment (the original indictment).

sentence means a term of imprisonment, fine or the term of an intensive correction order, a community correction order or a conditional release order.

s 25B: Ins 2017 No 55, Sch 2 [4]. Am 2018 No 25, Sch 1.5; 2020 No 31, Sch 1.6[3].

25C

Timing of pleas and notice requirements

25C Timing of pleas and notice requirements

(1) In this Division—

first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated.

(2) For the purposes of this Division, an offender complies with the pre-trial notice requirements if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence.

s 25C: Ins 2017 No 55, Sch 2 [4].

25D

Sentencing discounts for guilty plea for offences dealt with on indictment

25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Judge of the Local Court in committal proceedings for the offence,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(3) Discount variations—new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if—

(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and

(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.

(4) However, the discount in subsection (3) (a) does not apply if—

(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.

(5) Discount variations—person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Judge of the Local Court for continued committal proceedings, is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).

s 25D: Ins 2017 No 55, Sch 2 [4]. Am 2020 No 31, Sch 1.6[4]–[6]; 2025 No 61, Sch 2.28.

25E

Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made

25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made

(1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if—

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was not accepted by the prosecutor, and

(d) the offer was not subsequently withdrawn, and

(e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence.

For the purposes of this subsection, an offence is reasonably equivalent to a different offence if—

(a) the facts of the offence are capable of constituting the different offence, and

(b) the maximum penalty for the offence is the same or less than the different offence.

(2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if—

(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and

(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and

(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and

(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.

(3) Discount variation—offer to plead guilty to different offence The discount to be applied by the court is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made—

(i) before the offender was committed for trial, or

(ii) for an offender found fit to be tried after being committed for trial and whose matter was not remitted to a Magistrate for continued committal proceedings—as soon as practicable after the offender was found fit to be tried,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.

(4) In determining, for the purposes of subsection (3)(a)(ii), whether the offer was made by the offender as soon as practicable after the offender was found fit to be tried, the court must take into account whether the offender had a reasonable opportunity to obtain legal advice and instruct a legal representative.

s 25E: Ins 2017 No 55, Sch 2 [4]. Am 2025 No 52, Sch 1[1] [2].

25F

Other provisions applying to sentencing discount

25F Other provisions applying to sentencing discount

(1) Application This section applies to a sentencing discount under this Division.

(2) Exception to application of discount—level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.

(3) If a case conference certificate was filed in committal proceedings for the offence, a prosecutor is not entitled to apply to the court for a determination that the discount should not be applied or should be reduced unless the certificate records that the prosecutor notified the offender’s legal representative, at or before the conference, of the intention to make the application.

(4) Exception to application of discount—disputed facts The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender.

(5) Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities.

(6) Application to Drug Court proceedings The sentencing discount applicable to a person who is sentenced for an offence under the Drug Court Act 1998 applies to a person who indicates an intention to plead guilty to an offence before being referred to the Drug Court, and who subsequently pleads guilty to the offence before the Drug Court, as if the person had pleaded guilty to the offence before being committed for sentence in committal proceedings for the offence.

(7) Discount information to be given to offender by court The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated—

(a) if the sentencing discount is applied, how the sentence imposed was calculated,

(b) if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.

(8) Sentence not invalidated by failure to comply The failure by a court to comply with this Division does not invalidate any sentence imposed by the court.

(9) No discount where life sentence A sentencing court must not allow any discount under this Division for a guilty plea if the court determines a sentence of life imprisonment.

s 25F: Ins 2017 No 55, Sch 2 [4].

pt.3-div.2-sdiv.1

Preliminary

pt.3-div.2-sdiv.1 Preliminary

Subdivision 1 Preliminary

pt 3, div 2, sdiv 1, hdg: Ins 2018 No 88, Sch 3 [1].

Definitions

26 Definitions

In this Division—

closed-circuit television arrangements means the arrangements for giving evidence provided for by section 294B or Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.

family victim means any of the following persons, whether or not the person suffered personal harm as a result of the offence—

(a) in relation to an offence as a direct result of which a primary victim has died—a person who was, at the time the offence was committed, a member of the primary victim’s immediate family,

(b) in relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost, regardless of the gestational age of the foetus—a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, whether or not the primary victim died.

member of the primary victim’s immediate family means any of the following—

(a) the victim’s spouse,

(b) the victim’s de facto partner,

Note.

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

(c) a person to whom the victim is engaged to be married,

(d) a parent, step-parent or guardian of the victim,

(e) a grandparent or step-grandparent of the victim,

(f) a child or step-child of the victim or some other child for whom the victim is the guardian,

(g) a grandchild or step-grandchild of the victim,

(h) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim,

(i) an aunt, uncle, niece or nephew of the victim,

(j) in the case of a victim who is an Aboriginal person or a Torres Strait Islander—a person who is or has been part of the close family or kin of the victim according to the Indigenous kinship system of the victim’s culture,

(k) any person who the prosecutor is satisfied is a member of the victim’s extended family or culturally recognised family to whom the victim is or was close,

(l) any person who the prosecutor is satisfied is a person with whom the victim had a close relationship analogous to a family relationship, or whom the victim considered to be family.

personal harm means actual physical bodily harm or psychological or psychiatric harm.

prescribed sexual offence has the same meaning as it has in the Criminal Procedure Act 1986.

primary victim, in relation to an offence, means—

(a) a person against whom the offence was committed, or

(b) a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned,

being a person who has suffered personal harm as a direct result of the offence.

victim means a primary victim or a family victim.

victim impact statement has the meaning given by section 28 (1) and (2).

s 26: Am 2006 No 127, Sch 2.1 [1]–[4]; 2008 No 81, Sch 1 [1]–[3]; 2010 No 19, Sch 3.31 [1] [2]. Subst 2018 No 88, Sch 3 [1]. Am 2021 No 36, Sch 2[1].

Application of Division

27 Application of Division

(1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court, the Local Court or the Children’s Court, and only as provided by this section.

(2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is—

(a) an offence that results in the death of, or actual physical bodily harm to, any person, or

(b) an offence that involves an act of actual or threatened violence, or

(c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(d) a prescribed sexual offence, or

(e) an offence against section 54D(1), 91H, 91J, 91K, 91L, 91P, 91PA, 91Q or 91R of the Crimes Act 1900.

(3) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if—

(a) the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW), and

(b) the offence results in the death of, or actual physical bodily harm to, any person.

(4) In relation to an offence that is being dealt with by the Local Court, this Division applies only if the offence is—

(a) an offence that results in the death of any person, or

(b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or

(c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that—

(i) results in actual physical bodily harm to any person, or

(ii) involves an act of actual or threatened violence, or

(d) a prescribed sexual offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986, or

(e) an offence against section 54D(1), 91H, 91J, 91K, 91L, 91P, 91PA, 91Q or 91R of the Crimes Act 1900.

(4A) In relation to an offence that is being dealt with by the Children’s Court, this Division applies only if—

(a) the offence is an offence against section 91H, 91J, 91K, 91L, 91P, 91PA, 91Q or 91R of the Crimes Act 1900, or

(b) the offence is not an offence referred to in Table 2 of Schedule 1 to the Criminal Procedure Act 1986 and the offence is—

(i) an offence that results in the death of, or actual physical bodily harm to, any person, or

(ii) an offence that involves an act of actual or threatened violence, or

(iii) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(iv) a prescribed sexual offence.

(5) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply.

(6) This Division extends to any offence referred to in subsection (1)–(4A) that is dealt with under section 33.

s 27: Am 2000 No 40, Sch 2.1 [1] [2]; 2004 No 3, Sch 1 [1]; 2007 No 94, Sch 2; 2008 No 81, Sch 1 [4]–[7]; 2008 No 97, Sch 4.1; 2011 No 67, Sch 4.4 [1] [2]; 2012 No 82, Sch 2.2. Subst 2018 No 88, Sch 3 [1]. Am 2020 No 31, Sch 1.6[7]–[9]; 2022 No 65, Sch 3; 2025 No 57, Sch 2.3.

pt.3-div.2-sdiv.2

Preparation of statements

pt.3-div.2-sdiv.2 Preparation of statements

Subdivision 2 Preparation of statements

pt 3, div 2, sdiv 2, hdg: Ins 2018 No 88, Sch 3 [1].

Contents of victim impact statements

28 Contents of victim impact statements

(1) A primary victim in relation to an offence may prepare a statement (a victim impact statement) that contains particulars of the following suffered by the primary victim, or by the members of the primary victim’s immediate family, as a direct result of the offence—

(a) any personal harm,

(b) any emotional suffering or distress,

(c) any harm to relationships with other persons,

(d) any economic loss or harm that arises from any matter referred to in paragraphs (a)–(c).

(2) A family victim in relation to an offence may prepare a statement (a victim impact statement) that contains—

(a) in relation to an offence as a direct result of which a primary victim has died—particulars of the impact of the primary victim’s death on the family victim and other members of the primary victim’s immediate family, and

(b) in relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost, regardless of the gestational age of the foetus—particulars of the impact of the loss of the foetus on—

(i) the family victim, and

(ii) other members of the primary victim’s immediate family.

s 28: Am 2000 No 40, Sch 2.1 [3]; 2003 No 10, Sch 1 [1]; 2004 No 3, Sch 1 [2]–[4]; 2014 No 18, Sch 1 [1], [2]. Subst 2018 No 88, Sch 3 [1]. Am 2021 No 36, Sch 2[2].

Formal requirements for victim impact statements

29 Formal requirements for victim impact statements

(1) A victim impact statement must—

(a) be in writing, and

(b) comply with any other requirements prescribed by the regulations.

(2) Photographs, drawings or other images may, subject to the regulations, be included in a victim impact statement.

(3) A victim impact statement may relate to more than one victim.

(4) The preparation of a victim impact statement is not mandatory.

s 29: Am 2014 No 18, Sch 1 [3]. Subst 2018 No 88, Sch 3 [1].

Victim may be assisted

30 Victim may be assisted

(1) A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise—

(a) provide information for the preparation of a victim impact statement,

(b) object to the tendering of a victim impact statement.

(2) A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim—

(a) prepare a victim impact statement,

(b) read a victim impact statement.

(3) Anything done by a representative in accordance with this section is taken to have been done by the victim.

(4) The regulations may specify the persons or classes of person who may be a representative of a victim for the purposes of this section.

(5) A representative of a victim who provides information for the preparation of a victim impact statement or prepares a victim impact statement for the victim is not precluded from providing information or preparing a victim impact statement on the representative’s own behalf in relation to the same offence if otherwise eligible.

s 30: Am 2008 No 81, Sch 1 [8] [9]. Subst 2018 No 88, Sch 3 [1].

pt.3-div.2-sdiv.3

Consideration of statements by court

pt.3-div.2-sdiv.3 Consideration of statements by court

Subdivision 3 Consideration of statements by court

pt 3, div 2, sdiv 3, hdg: Ins 2018 No 88, Sch 3 [1].

30A

Tendering of victim impact statements

30A Tendering of victim impact statements

(1) After it is prepared, a victim impact statement is to be provided to the prosecutor in the relevant proceedings.

(2) A victim impact statement may be tendered to the court only by the prosecutor.

s 30A: Ins 2003 No 10, Sch 1 [2]. Am 2008 No 81, Sch 1 [10] [11]; 2017 No 40, Sch 1.6. Subst 2018 No 88, Sch 3 [1].

30B

Receipt of victim impact statement by court

30B Receipt of victim impact statement by court

(1) A court must accept a victim impact statement tendered by a prosecutor if the statement complies with the requirements of this Division and the regulations.

(2) A court to which a victim impact statement is tendered must acknowledge receipt of the statement.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

30C

Victim may object to tendering of victim impact statement

30C Victim may object to tendering of victim impact statement

(1) A victim to whom a victim impact statement relates may object to the statement being tendered to a court.

(2) A victim impact statement may not be received or considered by a court if any victim to whom the statement relates objects to the statement being tendered to the court.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

30D

Reading out of statement

30D Reading out of statement

(1) A victim to whom a victim impact statement relates may read out the whole or part of a victim impact statement if the statement has been tendered to the court in accordance with this Division.

(2) The statement may be read out at any time that the court determines after the court has convicted, but before it sentences, the offender.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

30E

How court uses victim impact statements

30E How court uses victim impact statements

(1) A court to which a victim impact statement has been tendered in relation to an offence—

(a) must consider the statement at any time after it convicts, but before it sentences, an offender for the offence, and

(b) may make any comment on the statement that the court considers appropriate.

(2) A victim impact statement may also be considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.

(3) A victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community, but only if—

(a) the prosecutor applies for this to occur, and

(b) the court considers it to be appropriate.

(4) Subsection (3) does not affect the application of the law of evidence in proceedings relating to sentencing.

(5) The absence of a victim impact statement does not give rise to any inference that an offence had little or no impact on a victim.

(6) The absence of a victim impact statement given by a family victim does not give rise to any inference that an offence had little or no impact on the members of the primary victim’s immediate family.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

30F

Restrictions on consideration of victim impact statements not made in accordance with Division

30F Restrictions on consideration of victim impact statements not made in accordance with Division

(1) A court must not consider or take into account a victim impact statement unless it has been prepared by the victim to whom it relates and tendered by the prosecutor.

(2) A court must not consider or take into account any material that is not specifically authorised by this Division to be included in a victim impact statement.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

30G

Access to victim impact statements prior to sentencing hearing

30G Access to victim impact statements prior to sentencing hearing

(1) The prosecution may provide a copy of a victim impact statement to the offender’s Australian legal practitioner (in the case of a represented offender).

(2) An Australian legal practitioner may copy, disseminate or transmit images of a victim impact statement only to the extent that it is reasonably necessary to do so for the purposes of providing the victim impact statement to another Australian legal practitioner for legitimate purposes related to the proceedings.

(3) The Australian legal practitioner must destroy any copies or images at the conclusion of the sentencing proceedings.

(4) The court may provide supervised access to a victim impact statement to an offender who is not represented by an Australian legal practitioner, if resources to facilitate the access are reasonably available.

(5) An offender must not retain, copy, disseminate or transmit images of the victim impact statement.

ss 30B–30G: Ins 2018 No 88, Sch 3 [1].

pt.3-div.2-sdiv.4

Special provisions relating to the reading of statements

pt.3-div.2-sdiv.4 Special provisions relating to the reading of statements

Subdivision 4 Special provisions relating to the reading of statements

pt 3, div 2, sdiv 4 (ss 30H–30K): Ins 2018 No 88, Sch 3 [1].

30H

Victims are entitled to have a support person present

30H Victims are entitled to have a support person present

(1) The victim to whom a victim impact statement relates is entitled to have a person chosen by the victim to be present near the victim, and within the victim’s sight, when the statement is read out.

(2) The person chosen by the victim may include a parent, guardian, relative, friend or support person of the victim or a person assisting the victim in a professional capacity.

(3) The right to have a person present applies whether the victim impact statement is read in proceedings that are being heard in open court, in closed court or in accordance with any closed-circuit television arrangements.

(4) A victim may have more than one person present.

pt 3, div 2, sdiv 4 (ss 30H–30K): Ins 2018 No 88, Sch 3 [1].

30I

Victims who are entitled to give evidence in closed court may also read their victim impact statements in closed court

30I Victims who are entitled to give evidence in closed court may also read their victim impact statements in closed court

(1) If the proceedings are for a prescribed sexual offence, the part of the proceedings in which the victim impact statement is read out is to be held in closed court unless—

(a) the court directs (subject to section 30K), at the request of a party to the proceedings, that the proceedings are to be held in open court, and

(b) the court is satisfied that—

(i) special reasons in the interests of justice require the part of the proceedings to be held in open court, or

(ii) the victim to whom the statement relates consents to the statement being read out in open court.

(2) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.

pt 3, div 2, sdiv 4 (ss 30H–30K): Ins 2018 No 88, Sch 3 [1].

30J

Victims who are entitled to give evidence by CCTV may also read their victim impact statements by CCTV

30J Victims who are entitled to give evidence by CCTV may also read their victim impact statements by CCTV

If the proceedings for the offence concerned are proceedings in which the victim to whom the victim impact statement relates is entitled to give evidence by means of closed-circuit television arrangements, the victim is also entitled to read out the victim’s victim impact statement in accordance with those closed-circuit television arrangements.

pt 3, div 2, sdiv 4 (ss 30H–30K): Ins 2018 No 88, Sch 3 [1].

30K

Special provisions regarding forensic patients

pt.3-div.2-sdiv.5 Special provisions regarding forensic patients

Subdivision 5 Special provisions regarding forensic patients

pt 3, div 2, sdiv 5: Ins 2018 No 88, Sch 3 [1].

30L

Victim impact statements where verdict of act proven but not criminally responsible

30L Victim impact statements where verdict of act proven but not criminally responsible

(1) A court may accept a victim impact statement after—

(a) a special verdict of act proven but not criminally responsible (whether or not following a special hearing) under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or

(b) a verdict following a special hearing under that Act, that, on the limited evidence available, an accused person committed an offence.

(2) A court must acknowledge receipt of the victim impact statement.

(3) A court may consider a victim impact statement when it considers what conditions are to be imposed on the release of the accused person.

(4) A court is not to consider a victim impact statement when determining the limiting term to be imposed on an accused person.

(5) A court must not consider a victim impact statement under this section unless it has been prepared by the victim to whom it relates and tendered by the prosecutor.

(6) Section 30E does not apply to a victim impact statement received by a court under this section.

(7) For the purposes of the definitions of family victim and primary victim in this Division, an offence is taken to have been committed by an accused person referred to in subsection (1).

s 30L: Ins 2018 No 88, Sch 3 [1]. Am 2020 No 12, Sch 3.11[1] [2].

30M

Submissions by designated carers and principal care providers

30M Submissions by designated carers and principal care providers

(1) A court may seek a submission by the designated carer or principal care provider of an accused person after—

(a) a special verdict of act proven but not criminally responsible (whether or not following a special hearing) under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or

(b) a verdict following a special hearing under that Act, that, on the limited evidence available, the accused person committed an offence.

(2) The regulations may make provision for or with respect to submissions under this section.

(3) In this section, designated carer and principal care provider have the same meanings as in the Mental Health Act 2007.

s 30M: Ins 2018 No 88, Sch 3 [1]. Am 2020 No 12, Sch 3.11[3].

30N

Victim impact statements in mental health and cognitive impairment forensic proceedings

30N Victim impact statements in mental health and cognitive impairment forensic proceedings

(1) A victim may request that a court not disclose the whole or part of a victim impact statement received by the court under section 30L to the accused person or that the statement not be read out to the court.

(2) The court is to agree to a request of a victim not to disclose the whole or part of a victim impact statement to the accused person or that a statement not be read out to the court unless the court considers that it is not in the interests of justice to agree to the request.

Note.

Among other things that may be considered by the court is the question of procedural fairness to the accused person.

(3) This section does not prevent the court from disclosing the whole or part of a victim impact statement to an Australian legal practitioner representing the accused person, on the condition that the statement is not to be disclosed to any other person, if the court is satisfied that it is in the interests of justice to do so.

(4) The court is required to give a copy of the victim impact statement to the Mental Health Review Tribunal constituted by the Mental Health Act 2007, in accordance with the regulations, as soon as practicable after the court makes a decision that results in the accused person becoming a forensic patient within the meaning of that Act.

(5) The regulations may make provision for or with respect to the requirements and procedures for victim impact statements in proceedings under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

s 30N: Ins 2018 No 88, Sch 3 [1]. Am 2020 No 12, Sch 3.11[4].

Definitions

31 Definitions

In this Division—

further offence means an offence referred to in a list of additional charges.

impose a penalty includes—

(a) impose a sentence of imprisonment or a fine, or

(b) make an intensive correction order or community correction order, or

(c) make an order that provides for an offender to enter into a good behaviour bond, or

(c1) make a non-association order or place restriction order, or

(d) make an order under section 10 or 11.

list of additional charges means a document filed in a court by the prosecutor, as referred to in section 32 (1).

principal offence means an offence the subject of proceedings referred to in section 32 (1).

s 31: Am 2001 No 100, Sch 1.1 [4]; 2010 No 48, Sch 1 [10]; 2017 No 53, Sch 1 [22]; 2020 No 30, Sch 2.10[2].

Prosecutor may file list of additional charges

32 Prosecutor may file list of additional charges

(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.

(2) A list of additional charges may be filed at any time—

(a) after the court finds the offender guilty of the principal offence, and

(b) before the court deals with the offender for the principal offence.

(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.

(4) A list of additional charges—

(a) (Repealed)

(b) must be signed by the offender, and

(c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.

(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.

(6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence.

s 32: Am 2004 No 68, Sch 4 [1]; 2010 No 136, Sch 1.2 [9], 2012 No 67, Sch 3.2 [1] [2].

Outstanding charges may be taken into account

33 Outstanding charges may be taken into account

(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2) The court may take a further offence into account in dealing with the offender for the principal offence—

(a) if the offender—

(i) admits guilt to the further offence, and

(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

(4) A court may not take a further offence into account—

(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or

(b) if the offence is an indictable offence that is punishable with imprisonment for life.

(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.

(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.

Ancillary orders relating to offences taken into account

34 Ancillary orders relating to offences taken into account

(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.

(2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence.

(3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender’s conviction for the principal offence is quashed or set aside.

(4) In this section, ancillary order means an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.

s 34: Am 2001 No 121, Sch 2.75 [5].

Consequences of taking offences into account

35 Consequences of taking offences into account

(1) If a further offence is taken into account under this Division—

(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and

(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.

(2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.

(3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to—

(a) the further offence in respect of which the admission was made, or

(b) any other offence specified in the list of additional charges.

(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.

(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings—

(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and

(b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.

(6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.

35A

Consultation with victim and police in relation to charge negotiations

35A Consultation with victim and police in relation to charge negotiations

(1) In this section—

charge negotiations means negotiations between the prosecution and an offender with respect to a plea of guilty in relation to an offence other than the principal offence concerned.

prosecution guidelines means prosecution guidelines in relation to charge negotiations issued by the Director of Public Prosecutions.

requisite consultation means consultation with the victim and the police officer in charge of investigating an offence that complies with the applicable prosecution guidelines.

victim has the same meaning as it has in section 26.

(2) A court must not take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that—

(a) the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and

(b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.

(3) The certificate must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.

(4) A certificate is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.

(5) The court may require the prosecution to explain the reason for a failure to file a certificate when it is required by this section to do so.

s 35A: Ins 2010 No 136, Sch 1.2 [10]. Am 2012 No 67, Sch 3.2 [1] [3]; 2017 No 44, Sch 1.8 [1] [2].

Definitions

36 Definitions

In this Division—

Court means the Court of Criminal Appeal.

guideline judgment means a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being—

(a) guidelines that apply generally, or

(b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).

guideline proceedings means—

(a) proceedings under section 37 on an application for a guideline judgment referred to in that section, and

(b) that part of proceedings that relates to the giving of a guideline judgment under section 37A.

s 36: Am 2001 No 117, Sch 5 [1] [2].

Guideline judgments on application of Attorney General

37 Guideline judgments on application of Attorney General

(1) The Court may give a guideline judgment on the application of the Attorney General.

(2) An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines.

(3) An application is not to be made in any proceedings before the Court with respect to a particular offender.

(4) The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence.

(5) A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate.

(6) (Repealed)

s 37: Am 2001 No 117, Sch 5 [3] [4].

37A

Guideline judgments on own motion

37A Guideline judgments on own motion

(1) The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.

(2) The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment.

s 37A: Ins 2001 No 117, Sch 5 [5].

37B

Review, variation and revocation of guideline judgments

37B Review, variation and revocation of guideline judgments

A guideline judgment given in proceedings under section 37 or 37A may be reviewed, varied or revoked in a subsequent guideline judgment of the Court, whether or not given under the same section.

s 37B: Ins 2001 No 117, Sch 5 [5].

Senior Public Defender may intervene

38 Senior Public Defender may intervene

(1) The Senior Public Defender, or a nominee of the Senior Public Defender who is an Australian legal practitioner, may appear in guideline proceedings.

(2) Without limiting subsection (1), the Senior Public Defender or his or her nominee may do any one or more of the following—

(a) oppose or support the giving of the guideline judgment by the Court,

(b) make submissions with respect to the framing of the guidelines,

(c) inform the Court of any relevant pending appeal with respect to sentence,

(d) assist the Court with respect to any relevant matter.

(3) Nothing in the Public Defenders Act 1995 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Senior Public Defender, or on any nominee of the Senior Public Defender who is a Public Defender, under this section.

(4) Without limiting subsection (3), in exercising any function conferred on the Senior Public Defender under this section, the Senior Public Defender is not, despite section 4 (3) of the Public Defenders Act 1995, responsible to the Attorney General.

(5) The Legal Aid Commission may make recommendations to the Senior Public Defender as to the exercise of any function conferred or imposed on the Senior Public Defender, or on any nominee of the Senior Public Defender, under this section.

s 38: Am 2000 No 98, Sch 2.1; 2005 No 98, Sch 3.18.

Director of Public Prosecutions may intervene

39 Director of Public Prosecutions may intervene

(1) The Director of Public Prosecutions may appear in person or be represented by an Australian legal practitioner in guideline proceedings.

(2) Without limiting subsection (1), the Director of Public Prosecutions or his or her representative may do any one or more of the following—

(a) oppose or support the giving of the guideline judgment by the Court,

(b) make submissions with respect to the framing of the guidelines,

(c) inform the Court of any relevant pending appeal with respect to sentence,

(d) assist the Court with respect to any relevant matter.

(3) Nothing in the Director of Public Prosecutions Act 1986, the Crown Prosecutors Act 1986 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Director of Public Prosecutions, or on any representative of the Director who is a Crown Prosecutor, under this section.

(4) Without limiting subsection (3), in exercising any function conferred on the Director of Public Prosecutions under this section, the Director is not, despite section 4 (3) of the Director of Public Prosecutions Act 1986, responsible to the Attorney General.

s 39: Am 2005 No 98, Sch 3.18.

39A

Attorney General may intervene

39A Attorney General may intervene

(1) The Attorney General, or a nominee of the Attorney General who is an Australian legal practitioner, may appear in that part of proceedings that relates to the giving of a guideline judgment under section 37A.

(2) Without limiting subsection (1), the Attorney General or his or her nominee may do any one or more of the following—

(a) oppose or support the giving of the guideline judgment by the Court,

(b) make submissions with respect to the framing of the guidelines,

(c) inform the Court of any relevant pending appeal with respect to sentence,

(d) assist the Court with respect to any relevant matter.

(3) Nothing in any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Attorney General, or on any nominee of the Attorney General, under this section.

s 39A: Ins 2001 No 117, Sch 5 [6]. Am 2005 No 98, Sch 3.18.

Discretion of Court preserved

40 Discretion of Court preserved

Nothing in this Division—

(a) limits any power or jurisdiction of the Court to give a guideline judgment that the Court has apart from this Division, or

(b) requires the Court to give any guideline judgment under this Division if it considers it inappropriate to do so.

Rules of court

41 Rules of court

Rules of court may be made under the Supreme Court Act 1970 with respect to applications, and proceedings to determine applications, under this Division.

Use of evidence in giving guideline judgments

42 Use of evidence in giving guideline judgments

(1) Nothing in section 12 of the Criminal Appeal Act 1912 limits the evidence or other matters that the Court may take into consideration in giving a guideline judgment and the Court may inform itself as it sees fit.

(2) The Court must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Court in giving a guideline judgment in the appeal but was not given at the trial.

s 42: Am 2001 No 117, Sch 5 [7].

42A

Relationship of guidelines and other sentencing matters

42A Relationship of guidelines and other sentencing matters

A guideline that is expressed to be contained in a guideline judgment—

(a) is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and

(b) does not limit or derogate from any such requirement.

s 42A: Ins 2001 No 117, Sch 5 [8].

Court may reopen proceedings to correct sentencing errors

43 Court may reopen proceedings to correct sentencing errors

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has—

(a) imposed a penalty that is contrary to law, or

(b) failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard—

(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order.

(3) For the purposes of this section, the court—

(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or

(b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.

(4) Subject to subsection (5), nothing in this section affects any right of appeal.

(5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.

(6) In this section—

impose a penalty includes—

(a) impose a sentence of imprisonment or a fine, or

(b) make an intensive correction order, community correction order or conditional release order, or

(c) (Repealed)

(c1) make a non-association order or place restriction order, or

(d) make an order under section 10 or 11, or

(e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege, or

(f) make a registrable person order under the Child Protection (Offenders Registration) Act 2000, including specifying a reporting period in the order.

s 43: Am 2001 No 100, Sch 1.1 [5]; 2001 No 121, Sch 2.75 [6]; 2010 No 48, Sch 1 [11]; 2013 No 80, Sch 4; 2017 No 53, Sch 1 [23]–[25]; 2024 No 62, Sch 2.

Part 4

Sentencing procedures for imprisonment

Part 4 Sentencing procedures for imprisonment

Court to set non-parole period

44 Court to set non-parole period

(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B.

(3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.

(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.

s 44: Subst 2002 No 90, Sch 1 [3]. Am 2010 No 136, Sch 2 [3]–[5]; 2013 No 78, Sch 1 [1].

Court may decline to set non-parole period

45 Court may decline to set non-parole period

(1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so—

(a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b) because of any other penalty previously imposed on the offender, or

(c) for any other reason that the court considers sufficient.

(1A) A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division.

(1B) Subsection (1A) does not apply in relation to the sentencing of an offender in respect of an offence—

(a) which is being dealt with summarily, or

(b) if the offender was under the age of 18 years at the time the offence was committed.

(2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

s 45: Am 2002 No 90, Sch 3.2 [5]; 2010 No 136, Sch 2 [6] [7]; 2016 No 54, Sch 1.6 [1] [2].

Court not to set non-parole period for sentence of 6 months or less

46 Court not to set non-parole period for sentence of 6 months or less

(1) A court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less.

(2) For the avoidance of doubt, subsection (1) does not apply to a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences for a term exceeding 6 months. This subsection has effect even if the sentence that would have been imposed for any of those offences would have been 6 months or less (as referred to in section 53A (2) (b)).

s 46: Am 2016 No 54, Sch 1.6 [3].

Commencement of sentence

47 Commencement of sentence

(1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.

(2) A court may direct that a sentence of imprisonment—

(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

(4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender—

(a) will become entitled to be released from custody, or

(b) will become eligible to be released on parole,

having regard to any other sentence of imprisonment to which the offender is subject.

(5) A direction under subsection (2)(b) must not be made in relation to a sentence of imprisonment, or an aggregate sentence of imprisonment, imposed on an offender who—

(a) is serving some other sentence of imprisonment by way of full-time detention if—

(i) a non-parole period has been set for the other sentence, and

(ii) the non-parole period for the other sentence has expired, and

(iii) the offender is still in custody under the other sentence, or

(b) is serving some other sentence of imprisonment by way of full-time detention if—

(i) the offender is in full-time detention for a revoked intensive correction order, and

(ii) no other full-time custodial sentence applies to the offender.

(6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

s 47: Am 2010 No 48, Sch 1 [12]; 2010 No 136, Sch 2 [8]–[10]; 2017 No 53, Sch 1 [26]; 2025 No 62, Sch 8.

Information about release date

48 Information about release date

(1) When sentencing an offender to imprisonment for an offence, or to an aggregate sentence of imprisonment for 2 or more offences, a court must specify—

(a) the day on which the sentence commences or is taken to have commenced, and

(b) the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to—

(i) that and any other sentence of imprisonment to which the offender is subject, and

(ii) the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.

Note.

Example No 1: A court sentences an offender to 7 days’ imprisonment. The sentence is imposed on a Monday. The court has not set a non-parole period. The offender is not subject to any other sentence of imprisonment. In this example, the court should specify that the sentence commences on the Monday on which it is imposed and that the earliest day on which the offender will become entitled to be released from custody is the following Sunday.

Example No 2: A court sentences an offender to 12 months’ imprisonment. The sentence is imposed on 5 May 2000. The court has set a non-parole period of 9 months. The offender is not subject to any other sentence of imprisonment. Because the offender has been remanded in custody for sentencing since 27 April 2000, the court has backdated the commencement of the sentence to that date. In this example, the court should specify that the sentence is taken to have commenced on 27 April 2000 and that the earliest date on which the offender will become entitled to be released on parole is 26 January 2001.

Example No 3: A court sentences an offender to 2 years’ imprisonment. The sentence is imposed on 3 June 2000. The court has set a non-parole period of 18 months. The offender is subject to one other sentence of imprisonment in respect of which the offender will become eligible to be released on parole on 21 September 2000. The court has directed that the new sentence is to run consecutively with the other sentence. In this example, the court should specify that the sentence commences on 22 September 2000 and that the earliest date on which the offender will become eligible to be released on parole is 21 March 2002.

(2) The purpose of this section is to require a court to give information about the likely effect of a sentence.

(3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.

s 48: Am 2010 No 136, Sch 2 [11].

Restriction on term of sentence

49 Restriction on term of sentence

(1) The term of a sentence of imprisonment (other than an aggregate sentence of imprisonment)—

(a) must not be more than the maximum term of imprisonment that may be imposed for the offence, and

(b) must not be less than the shortest term of imprisonment (if any) that must be imposed for the offence.

(2) The term of an aggregate sentence of imprisonment—

(a) must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates, and

(b) must not be less than the shortest term of imprisonment (if any) that must be imposed for any separate offence or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences.

s 49: Am 2010 No 136, Sch 2 [12] [13].

50

50–51B (Repealed)

Court’s powers on appeal

52 Court’s powers on appeal

(1) If an appeal is made against a conviction or sentence, the court determining the appeal—

(a) may vary or rescind any non-parole period set by the sentencing court, or

(b) may set a non-parole period for a sentence of imprisonment for which a non-parole period has not been set by the sentencing court.

(2) Any non-parole period that is varied or set under this section must comply with the requirements of this Division.

(3) This section does not limit any other power of a court in determining an appeal.

Multiple sentences of imprisonment

53 Multiple sentences of imprisonment

(1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.

(2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

s 53: Subst 2010 No 136, Sch 2 [14].

53A

Aggregate sentences of imprisonment

53A Aggregate sentences of imprisonment

(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following—

(a) the fact that an aggregate sentence is being imposed,

(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.

s 53A: Ins 2010 No 136, Sch 2 [14]. Am 2014 No 59, Sch 1.4 [1].

53B

Limitation on aggregate sentences imposed by Local Court

53B Limitation on aggregate sentences imposed by Local Court

For the avoidance of doubt, the Local Court may impose an aggregate sentence of imprisonment that does not exceed 5 years.

s 53B: Ins 2016 No 54, Sch 1.6 [4].

Exclusions from Division

54 Exclusions from Division

This Division does not apply to the sentencing of an offender—

(a) to imprisonment for life or for any other indeterminate period, or

(b) to imprisonment under the Habitual Criminals Act 1957, or

(c) to detention under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

s 54: Am 2008 No 79, Sch 3.6 [1]; 2020 No 12, Sch 3.11[5]; 2022 No 16, Sch 9.3.

54A

What is the standard non-parole period?

54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

s 54A: Ins 2002 No 90, Sch 1 [4]. Am 2013 No 78, Sch 1 [2].

54B

Consideration of standard non-parole period in sentencing

54B Consideration of standard non-parole period in sentencing

(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

(3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.

(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.

(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.

(7) The failure of a court to comply with this section does not invalidate the sentence.

s 54B: Ins 2002 No 90, Sch 1 [4]. Am 2010 No 136, Sch 2 [15]–[17]. Subst 2013 No 78, Sch 1 [3]. Am 2014 No 59, Sch 1.4 [2].

54C

Court to give reasons if non-custodial sentence imposed

54C Court to give reasons if non-custodial sentence imposed

(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.

(2) The failure of a court to comply with this section does not invalidate the sentence.

(3) In this section—

non-custodial sentence means a sentence referred to in Division 3 of Part 2 or a fine.

s 54C: Ins 2002 No 90, Sch 1 [4].

54D

Exclusions from Division

54D Exclusions from Division

(1) This Division does not apply to the sentencing of an offender—

(a) to imprisonment for life or for any other indeterminate period, or

(b) to detention under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

(2) This Division does not apply if the offence for which the offender is sentenced is dealt with summarily.

(3) This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed.

s 54D: Ins 2002 No 90, Sch 1 [4]. Am 2008 No 79, Sch 3.6 [2]; 2008 No 105, Sch 2.4 [4]; 2020 No 12, Sch 3.11[6].

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Act

This Act is the Crimes (Sentencing Procedure) Act 1999.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Interpretation

(1) In this Act—

aggregate sentence of imprisonment—see section 53A.

associate with means—

(a) to be in company with, or

(b) to communicate with by any means (including post, facsimile, telephone and email).

authorised officer has the same meaning as it has in the Criminal Procedure Act 1986.

Commissioner means the Commissioner of Corrective Services, Department of Justice.

community correction order means an order referred to in section 8.

community corrections officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

community service work has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

community service work condition—see sections 73A and 89.

compulsory drug treatment detention means detention in accordance with Part 4A of the Crimes (Administration of Sentences) Act 1999.

conditional release order means an order referred to in section 9.

convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

correctional officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

Corrective Services NSW has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

court means—

(a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or