5Sentencing guidelines

5 Sentencing guidelines (1) The only purposes for which sentences may be imposed are— (a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or (b) to deter the offender or other persons from committing offences of the same or a similar character; or (c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or (d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of two or more of those purposes. S. 5(2AA) inserted by No. 48/1997 s. 5. (2AA) Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to[[1]](#endnote-2)— (a) any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind; or S. 5(2AA)(b) amended by No. 69/2014 s. 7. (b) any sentencing practices arising at any time out of section 10 of this Act as in force at any time before its expiry on 22 April 1997. S. 5(2AB) inserted by No. 69/1997 s. 4. (2AB) If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details. S. 5(2AC) inserted by No. 69/1997 s. 4. (2AC) Nothing in subsection (2AB) requires a court to state the sentence that it would have imposed but for the undertaking that was given. (2) In sentencing an offender a court must have regard to— (a) the maximum penalty prescribed for the offence; and S. 5(2)(ab) inserted by No. 52/2014 s. 4, repealed by No. 34/2017 s. 4, new s. 5(2)(ab) inserted by No. 34/2017 s. 18. (ab) the standard sentence, if any, for the offence; and (b) current sentencing practices; and (c) the nature and gravity of the offence; and (d) the offender's culpability and degree of responsibility for the offence; and S. 5(2)(daaa) inserted by No. 77/2009 s. 3. (daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and S. 5(2)(daa) inserted by No. 15/2005 s. 3. (daa) the impact of the offence on any victim of the offence; and S. 5(2)(da) inserted by No. 24/1994 s. 5. (da) the personal circumstances of any victim of the offence; and S. 5(2)(db) inserted by No. 24/1994 s. 5. (db) any injury, loss or damage resulting directly from the offence; and (e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and (f) the offender's previous character; and (g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances. Note to s. 5(2) inserted by No. 5/2018 s. 32. See section 5AA in relation to the court having regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances. S. 5(2A) inserted by No. 90/1991 s. 34. (2A) In sentencing an offender a court— S. 5(2A)(a) amended by No. 108/1997 s. 156(a)(i). (a) may have regard to a forfeiture order made under the **Confiscation Act 1997** in respect of property— (i) that was used in, or in connection with, the commission of the offence; (ii) that was intended to be used in, or in connection with, the commission of the offence; S. 5(2A)(a)(iii) amended by No. 108/1997 s. 156(a)(ii). (iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii); S. 5(2A)(ab) inserted by No. 63/2003 s. 50(1), amended by No. 55/2014 s. 48(1). (ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under Division 2 or 3 of Part 3 of the **Confiscation Act 1997** in respect of property— (i) that was used in, or in connection with, the commission of the offence; (ii) that was intended to be used in, or in connection with, the commission of the offence; (iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii); S. 5(2A)(b) amended by No. 108/1997 s. 156(b). (b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by any person as a result of the commission of the offence; (c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence; (d) must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence; S. 5(2A)(e) inserted by No. 108/1997 s. 156(c), amended by Nos 63/2003 s. 50(2), 87/2004 s. 24(a), 55/2014 s. 48(2), substituted by No. 27/2016 s. 46. (e) subject to paragraph (ab), must not have regard to the automatic forfeiture of property under Division 2 or 3 of Part 3 of that Act or a pecuniary penalty made under that Act in relation to a Schedule 2 offence; S. 5(2A)(f) inserted by No. 27/2016 s. 46. (f) must not have regard to the automatic forfeiture of property under Division 4 of Part 3 of that Act in relation to a serious drug offence. S. 5(2B) inserted by No. 90/1991 s. 34, amended by No. 108/1997 s. 156(d). (2B) Nothing in subsection (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the **Confiscation Act 1997** as an indication of remorse or co-operation with the authorities on the part of the offender. S. 5(2BA) inserted by No. 1/2005 s. 48. (2BA) In sentencing an offender, a court— S. 5(2BA)(a) amended by Nos 21/2008 s. 25(1), 57/2017 s. 52(2). (a) must not have regard to the fact that the offender is subject to an extended supervision order or interim extended supervision order under the **Serious Sex Offenders Monitoring Act 2005** but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions of that order and the terms of any current directions or instructions given by the Post Sentence Authority under section 16 of that Act; S. 5(2BA)(b) amended by No. 21/2008 s. 25(1), repealed by No. 91/2009 s. 219(Sch. 3 item 2.1). S. 5(2BB) inserted by No. 1/2005 s. 48. (2BB) For the purposes of subsection (2BA)(a), the court may request the Secretary within the meaning of the **Serious Sex Offenders Monitoring Act 2005** to provide it with a report setting out— S. 5(2BB)(a) amended by No. 21/2008 s. 25(1). (a) the conditions of the extended supervision order or interim extended supervision order to which the offender is subject under that Act; and S. 5(2BB)(b) amended by No. 57/2017 s. 52(2). (b) the terms of any current directions or instructions given by the Post Sentence Authority under section 16 of that Act in relation to that order. S. 5(2BC) inserted by No. 34/2005 s. 27, amended by Nos 57/2005 s. 50(1), 34/2020 s. 238. (2BC) In sentencing an offender a court must not have regard to any consequences that may arise under the **Sex Offenders Registration Act 2004** or the **Worker Screening Act 2020** from the imposition of the sentence. S. 5(2BD) inserted by No. 91/2009 s. 219(Sch. 3 item 2.2). (2BD) In sentencing an offender, a court— S. 5(2BD)(a) amended by Nos 57/2017 s. 52(2), 27/2018 s. 364(2). (a) must not have regard to the fact that the offender is subject to an order made under the **Serious Offenders Act 2018** but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions (if any) imposed on that order and the terms of any current directions or instructions given by the Authority under Part 11 of that Act; (b) must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender. S. 5(2BE) inserted by No. 91/2009 s. 219(Sch. 3 item 2.2), amended by No. 65/2011 s. 4(1). (2BE) For the purposes of subsection (2BD)(a), the court may request the Secretary to provide it with a report setting out— (a) the conditions of the supervision order or interim supervision order to which the offender is subject under that Act; and S. 5(2BE)(b) amended by No. 57/2017 s. 52(2). (b) the terms of any current directions or instructions given by the Post Sentence Authority under section 119, 120(2) or 121 of that Act in relation to that order. S. 5(2C) inserted by No. 60/1993 s. 26, amended by Nos 35/1999 s. 37(1)(a)(b), 68/2009 s. 97(Sch. item 110.2). (2C) In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse or lack of remorse on his or her part. S. 5(2CA) inserted by No. 76/2016 s. 9. (2CA) In sentencing an offender who has been found guilty of murder, conspiracy to murder, accessory to murder or manslaughter in circumstances in which the body or remains of the deceased victim have not been located, a court may have regard to whether the offender has cooperated in the investigation of the offence to identify— (a) the location, or last known location, of that body or those remains; and (b) the place where the body or remains of the victim of the offence may be found. S. 5(2D) inserted by No. 60/1993 s. 26, substituted by No. 35/1999 s. 37(2), amended by Nos 68/2009 s. 97(Sch. item 110.3), 30/2010 s. 24. (2D) In having regard to the conduct of the offender under subsection (2C), the court may consider the extent to which the offender complied with, or failed to comply with, a requirement imposed on the offender by or under Part 5.5 of Chapter 5 of the **Criminal Procedure Act 2009**. S. 5(2E) inserted by No. 60/1993 s. 26, amended by Nos 109/1994 s. 34(14)(a), 19/1999 s. 16(2), 68/2009 s. 97(Sch. item 110.4). (2E) An offender who pleads guilty to an offence after the determination by the Court of Appeal[[2]](#endnote-3) of a question of law reserved under section 302(2) of the **Criminal Procedure Act 2009** is to be taken to have pleaded guilty immediately after arraignment. S. 5(2F) inserted by No. 74/2014 s. 17. (2F) In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge (within the meaning of clause 4A of Schedule 1 to the **Criminal Procedure Act 2009**) a court— (a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and (b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence. If a jury finds a person guilty of a course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced. S. 5(2G) inserted by No. 65/2016 s. 4(1), amended by No. 48/2018 s. 76(1). (2G) Subject to subsection (2GA), in sentencing an offender for a category 1 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44). S. 5(2GA) inserted by No. 48/2018 s. 76(2), amended by No. 23/2020 s. 3(1). (2GA) In sentencing an offender for an offence referred to in paragraph (ca), (cb), (cc), (ic) or (id) of the definition of ***category 1 offence*** where the court has found under section 10A that a special reason exists and having regard to the Parliament's intention set out in section 10A(3)(aa) to (b), a court must make either— (a) an order referred to in subsection (2G); or (b) a mandatory treatment and monitoring order (whether or not a sentence of imprisonment is imposed under section 44), a residential treatment order or a Court Secure Treatment Order if— (i) the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; and (ii) the court is satisfied that a mandatory treatment and monitoring order, a residential treatment order or a Court Secure Treatment Order, as the case requires, is appropriate. S. 5(2GB) inserted by No. 48/2018 s. 76(2), amended by No. 23/2020 s. 3(2). (2GB) Before making an order under subsection (2GA)(b) a court must— (a) have received a report addressing the matters in subsection (2GA)(b)(i) by a psychiatrist or a registered psychologist who has examined the offender in relation to the offending; and (b) have regard to that report and any other evidence that the court considers relevant. S. 5(2GC) inserted by No. 48/2018 s. 76(2), amended by No. 23/2020 s. 3(3). (2GC) Subsection (2GA) does not apply to impaired mental functioning caused substantially by self‑induced intoxication. S. 5(2H) inserted by No. 65/2016 s. 4(1). (2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless— (a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or 1 Section 5(2AB) also applies. 2 If an offender fails to fulfil an undertaking, the Director of Public Prosecutions has a right under section 291 of the **Criminal Procedure Act 2009** to appeal against the less severe sentence imposed. S. 5(2H)(b) repealed by No. 48/2018 s. 76(3). (c) the offender proves on the balance of probabilities that— S. 5(2H)(c)(i) amended by Nos 48/2018 s. 76(4), 23/2020 s. 3(4). (i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or S. 5(2H)(c)(ii) amended by No. 48/2018 s. 76(5). (ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or (d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or S. 5(2H)(e) amended by No. 48/2018 s. 76(6). (e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44). S. 5(2HA) inserted by No. 48/2018 s. 76(7), amended by No. 23/2020 s. 3(5). (2HA) Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self‑induced intoxication. S. 5(2HB) inserted by No. 48/2018 s. 76(7). (2HB) In subsections (2GA), (2GC), (2H) and (2HA)— ***impaired mental functioning*** has the same meaning as in section 10A; ***self-induced intoxication*** has the same meaning as in section 322T(5) and (6) of the **Crimes Act 1958**. S. 5(2HC) inserted by No. 48/2018 s. 76(8). (2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court— (a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to— (i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or (ii) an early guilty plea; or (iii) prospects of rehabilitation; or (iv) parity with other sentences. S. 5(2I) inserted by No. 65/2016 s. 4(1). (2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to— (a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and (b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence. S. 5(2J) inserted by No. 48/2018 s. 76(9). (2J) In sentencing a young offender aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in this Act that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult. S. 5(3) amended by Nos 65/2016 s. 4(2), 48/2018 s. 76(10). (3) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. S. 5(4) amended by Nos 65/2016 s. 4(2), 48/2018 s. 76(10). (4) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. S. 5(4A) inserted by No. 48/1997 s. 8(1), amended by No. 2/2002 s. 4(4), repealed by No. 65/2011 s. 4(2). S. 5(4B) inserted by No. 2/2002 s. 4(5), amended by Nos 65/2011 s. 4(3), 65/2016 s. 4(2), 48/2018 s. 76(10), 43/2020 s. 7(a). (4B) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a drug and alcohol treatment order. S. 5(4C) inserted by No. 69/2014 s. 16, amended by Nos 65/2016 s. 4(2), 48/2018 s. 76(10). (4C) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached. S. 5(5) amended by Nos 65/2011 s. 4(4), 43/2020 s. 7(b). (5) A court must not impose a drug and alcohol treatment order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order. S. 5(6) amended by No. 65/2011 s. 4(5). (6) A court must not impose a community correction order unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by imposing a fine. (7) A court must not impose a fine unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a dismissal, discharge or adjournment. S. 5AA inserted by No. 5/2018 s. 33. 5AA Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances (1) Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence. (2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence. (3) In this section— S. 5AA(3) def. of *child sexual offence* amended by No. 38/2022 s. 41. ***child sexual offence*** means a sexual offence within the meaning of section 3 of the **Criminal Procedure Act 2009** (other than an intimate image offence), committed in relation to a person under the age of 18 years. S. 5A inserted by No. 41/1993 s. 5, repealed by No. 48/1997 s. 7(3), new s. 5A inserted by No. 52/2014 s. 5, amended by No. 63/2014 s. 7(17), repealed by No. 34/2017 s. 5, new s. 5A inserted by No. 34/2017 s. 19.