Sentencing Act 1995

The Sentencing Act 1995 directly affects every adult offender (s 3(1) definition of "offender") dealt with by a court other than the Youth Justice Court (s 4). This includes persons found guilty after trial or plea in the Local Court or Supreme Court for offences under the Criminal Code, Misuse of Drugs Act 1990, Domestic and Family Violence Act 2007 or any other Territory law. It extends to bodies corporate (s 29) and persons subject to pre-existing orders preserved by transitional provisions (e.g. Division 10 of Part 12 preserving old community-based orders).

Victims are expressly affected through mandatory consideration of victim impact statements or reports (s 106B), restitution and compensation orders (ss 88-97), and certificates for identity crime victims (s 97AB). The Act requires courts to have regard to harm suffered, including physical injury, psychological suffering, sexually transmissible conditions, pregnancy and economic loss (s 106A definition of "harm").

Communities are affected via denunciation and protection purposes (s 5(1)(d)-(e)), prevalence of the offence (s 5(2)(g)), harm to community (s 5(2)(da)), and Law and Justice Groups in community court sentencing (s 107C). Aboriginal offenders and their communities are specifically engaged by s 104A (cultural information), Division 3A of Part 6 (Aboriginal experience reports), and transitional recognition of customary law.

Justice agencies are bound: the Commissioner of Correctional Services must receive copies of orders (ss 37, 48C), prepare pre-sentence reports (s 105), supervise orders (Chapter 4 of the Correctional Services Act 2014), and provide breach evidence (ss 39C, 48H). Prosecutors (including the Director of Public Prosecutions) must present victim material (s 106B), inform the court of applications for indefinite sentences (s 66), and consent to taking other offences into account (s 107(2)). The Chief Health Officer and authorised psychiatric practitioners advise on and administer mental health orders (ss 79-85).

Courts themselves are regulated: the Local Court may impose aggregate sentences up to five years (s 52(8)) but cannot fix non-parole for terms under 12 months (s 53(1A)), while the Supreme Court alone imposes indefinite sentences (s 65). Appellate rights are preserved or created for variation/breach sentences (s 113) and indefinite sentence reviews (s 77).

Finally, the Administrator exercises prerogative mercy (s 115) and remission powers (s 114), and regulations may prescribe programs, forms and fees (s 128).

Courts owe duties under s 5(2) to have regard to a non-exhaustive list of factors: maximum/minimum penalties, offence nature and seriousness (including victim harm and community harm), offender culpability, damage caused, character/age/intellectual capacity, aggravating or mitigating factors (expanded in s 6A to include offending in company, with a weapon, during public disturbance, motivated by hate, involving violence, domestic violence of a physically/sexually abusive nature or coercive control, multiple victims, victims who are police or emergency workers, spitting, or substantial planning), prevalence, assistance to law enforcement, conduct during proceedings (including compliance with Local Court (Criminal Procedure) Act requirements), guilty plea timing (subject to s 123A for late pleas in listed trials), time in custody or on bail with conduct agreements, interstate sentences, outstanding sentences, compliance with existing orders, and any other relevant circumstance. For domestic violence offences, unacceptable risk must be assessed and, if present, mitigation through orders or conditions considered (s 5(5)-(6)). Good character is disregarded in child sex offences where it facilitated the crime (s 5(3A)).

Offenders have rights to explanation of orders before consent is required (s 102), presence when sentence is imposed (s 117, satisfied via audio-visual link under the Evidence Act), and to be heard on pre-sentence reports, victim impact material, and breach proceedings. They may apply for variation or revocation of community correction orders (s 39), intensive community correction orders (s 48E), suspended sentences (s 42), approved treatment facility orders (s 85), and non-association or place restriction orders (s 97E). Rights of appeal against sentence imposed on variation or breach exist as if the original offence had just been dealt with (s 113). For indefinite sentences, offenders may apply for review on exceptional circumstances grounds after the first periodic review (s 73) and appeal refusal of discharge (s 77).

Victims hold rights to present impact statements with consent (s 106B(1)), have reports tendered where consent is absent or location unknown (s 106B(2)), and receive compensation or restitution (s 88). They cannot be cross-examined on impact statements (s 106B(9)).

The Commissioner and probation officers owe duties to supervise, monitor, report breaches, and facilitate approved projects or programs. The Chief Health Officer must advise on mental health suitability and facilities (ss 79-80).

Penalties are prescribed per offence but the Act supplies default maxima (s 16(2)), fine-imprisonment conversion (s 28), and body corporate multipliers (s 29). Breach of community correction orders may result in confirmation, variation, extension (to a maximum two years total), revocation and resentencing, or discharge (s 39B). Similar powers exist for intensive community correction orders, including immediate imprisonment for the unexpired term (s 48G). Suspended sentence breaches trigger restoration of the suspended term unless unjust (s 43(7)), with reasons required.

Imprisonment defaults on fines are capped at three months (s 26(3)(c)), calculated at the Fines and Penalties (Recovery) Act rate. Mandatory minimums in Division 6A (3 or 12 months actual imprisonment) and sexual offence actual imprisonment (s 78F) are enforceable by recording conviction and prohibiting wholly suspended sentences (s 78CA). Non-parole minima (70 per cent for sexual offences, 20-25 years for murder) are mandatory absent exceptional circumstances (ss 53A(6), 55, 55A).

Enforcement mechanisms include warrants of commitment (s 26), arrest without warrant for breaches (ss 39A(4), 48F(4), 43(4AA)), summons or warrants on information (ss 39A, 48F), admissibility of monitoring device records and officer notebooks (ss 39C, 48H), and recovery of device damage costs as debts (ss 39D, 48J). Mental health orders are enforced by custody transfer (s 84) and breach variation or resentencing (s 86). Restitution or compensation breaches may attract up to 12 months imprisonment (s 93). Passport and licence orders are enforced by surrender and notification (ss 99, 98). Forfeiture occurs under s 99A or the Liquor Act.

The Act is expressly subordinate to specific offence provisions ("subject to any specific provision relating to the offence" in s 7) and cross-references the Criminal Code for offence definitions, violent and sexual offence schedules (Schedules 2 and 3), and identification crime (s 97AA). Non-parole and mandatory sentencing interact with the Misuse of Drugs Act and Domestic and Family Violence Act (s 148 transitional).

It is integrally linked to the Correctional Services Act 2014 for supervision (Chapter 4), approved monitoring devices (s 3), approved projects, home detention, and custody definitions. The Fines and Penalties (Recovery) Act 2001 governs fine enforcement and default imprisonment rates (s 26). The Mental Health and Related Services Act 1998 supplies meanings and governs treatment under Part 4 orders. The Domestic and Family Violence Act 2007 defines domestic relationships, violence, coercive control and rehabilitation programs (s 3), triggering s 5(5)-(6) and s 6A(1)(fa) considerations and permitting non-consensual rehabilitation conditions (s 34(1)(b)).

The Bail Act 1982 interacts via credit for time on conduct agreements (s 5(2)(k)). The Local Court (Criminal Procedure) Act informs procedural compliance as a sentencing factor (s 5(2)(ha)) and summary jurisdiction limits (s 122). The Youth Justice Act 2005 excludes its court from the Act (s 4) but supplies CEO(Youth Justice) reporting functions. The Criminal Property Forfeiture Act 2002 and Liquor Act 2019 permit regard to forfeiture when sentencing (s 5(4)) and mandatory forfeiture determinations (s 99A(2)).

Transitional divisions in Part 12 preserve prior orders under repealed Acts (Schedule 4) while applying new rules prospectively. Section 121 ensures penalty alterations apply only to post-commencement offences or un-sentenced pre-commencement matters. Section 123 treats "old offences" as prior convictions where elements correspond. Community court procedures interact with the Youth Justice Act for parallel Aboriginal experience reports.

Amendments since 2022 illustrate legislative refinement. The Sentencing and Other Legislation Amendment Act 2022 (commenced 25 March 2024) replaced community-based orders with community correction orders and intensive community correction orders (new Divisions 4 and 5 Subdivision 2), introduced home detention only within intensive orders (s 48A), aligned breach regimes, and adjusted non-parole for certain drug and domestic violence offences (s 148). These changes responded to recommendations for greater flexibility, reduced short-term imprisonment, and better supervision, while preserving old orders (Division 10 of Part 12).

The Criminal Justice Legislation Amendment (Sexual Offences) Act 2023 and Justice Legislation Amendment (Domestic and Family Violence) Act 2023 (both commenced 25 March 2024) updated s 5(2)(ba) to include sexually transmissible conditions, expanded aggravating factors in s 6A(1)(fa) to cover coercive control and exposure of children to domestic violence, and applied minimum non-parole periods to updated sexual offence provisions (ss 55, 55A and Schedule 3). Section 52 was inserted to prohibit aggregate sentences for sexual offences, ensuring individualised sentencing. These changes reflect heightened community concern about sexual and family violence, implementing royal commission and review recommendations for stronger victim protection and consistent minimums.

The Justice and Other Legislation Further Amendment Act 2024 and Sentencing Legislation Amendment Act 2023 modernised community court sentencing (new Division 3A), requiring Aboriginal experience reports (s 107B) and Law and Justice Group input, continuing approvals of places and members (Division 14 of Part 12). The Sentencing Amendment (Murder) Act 2026 (commencing 1 April 2026) will amend s 53A non-parole periods for murder; transitional s 158 preserves pre-commencement offences. The Sentencing Amendment Act 2024 inserted ss 78DAA, 78DAB and 78DBA for specific assault offences, tightening mandatory actual imprisonment while retaining the exceptional circumstances exemption (s 78DB).

These changes respond to rising violent and sexual offending, evidence-based community sentencing, cultural appropriateness for Aboriginal offenders, and alignment with national standards on domestic violence and victim impact.

Although the Act itself has not generated voluminous reported challenges, its mandatory sentencing provisions have attracted judicial scrutiny. In applying s 78DB exceptional circumstances, courts have emphasised that the exemption is narrow; voluntary intoxication or co-offending expressly do not qualify (s 78DB(3)). Decisions under predecessor provisions (e.g. mandatory terms for property offences under the pre-2022 regime) underscored that "exceptional" requires circumstances outside the ordinary run of cases, often citing victim impact under s 106B.

Indefinite sentences under s 65 have produced periodic review litigation. Courts apply the high standard of "high degree of probability" (s 74(1)) and must consider medical, psychiatric and correctional reports (s 69(9)). Appeals under s 77 test whether the Supreme Court erred in refusing discharge. The requirement for offender presence at reviews (s 78) and removal only for disruptive behaviour has raised procedural fairness questions, though s 78(5) permits absence for illness if interests of justice allow.

Non-parole minima in ss 53A, 55 and 55A have been challenged on constitutional grounds (e.g. whether they impermissibly fetter judicial power), but courts have upheld them as valid exercises of legislative sentencing policy, provided exceptional circumstances relief remains available (s 53A(6)). The "standard non-parole period" of 20 years for murder represents the middle of the range of objective seriousness (s 53A(2)), requiring courts to identify reasons for departure (s 53A(9)).

The interaction with cultural information (s 104A) and Aboriginal experience reports (s 107F) has produced controversy around weight and procedural fairness. Section 104A mandates notice and response opportunity before receiving customary law or cultural practice evidence; failure does not invalidate but may ground appeal. Section 107F clarifies that report contents are not proof of asserted facts, mitigating risks of untested assertions.

Controversies also surround late guilty plea provisions (s 123A), which prohibit leniency for pleas entered within seven days of listed trial unless the offender could not have pleaded earlier. This has been criticised as unduly punitive, yet upheld as a legitimate legislative response to court backlog.

Most practitioners recognise the mandatory sentencing thicket in Division 6A, yet a subtle trap lies in the interaction between prior "violent offence" definitions and transitional provisions. A conviction recorded before the 2022 amendments may still count as a prior for the purpose of 12-month minima under ss 78D(2)(c), 78DAA(2)(b) or 78DA(2)(c) because Schedule 2 and s 78C(1)(b) capture repealed or interstate equivalents. Counsel must meticulously audit the antecedent history against both current and historical schedules.

Another under-appreciated pitfall is the absolute bar on wholly suspended sentences once a minimum actual imprisonment term is engaged (s 78CA(1)(c)). Even where exceptional circumstances displace the minimum under s 78DB, the court must still impose actual imprisonment; only the length may be reduced. This has caught practitioners who assume "exceptional circumstances" restores full sentencing discretion including suspension.

The home detention condition in intensive community correction orders (s 48A) requires affirmative satisfaction on three distinct suitability criteria (accommodation, premises suitability, and risk to co-residents or community). A court that merely recites the statutory language without addressing each limb risks appellate intervention. Conversely, the 480-hour community work ceiling in both community correction orders and intensive orders (ss 34(1)(a), 48(1)(b)) is absolute; excess hours render the condition invalid.

Section 5(3A) operates as a mandatory disregard of good character in child sex offences where character assisted commission. The examples in the subsection (camp supervisor or community authority) are illustrative only; the test is causal assistance, not status. Many miss that this applies even if the offence is dealt with summarily.

For indefinite sentences, the nominal sentence (s 65(5)) fixes the review timetable (s 72(1)(a)). A nominal life sentence triggers first review after 13 years, not 50 per cent. Failure to specify a single nominal sentence when imposing multiple indefinite sentences (s 65(6)) invalidates the order. On review, the "high degree of probability" test (s 74(1)) is higher than the original imposition standard; courts have discharged only where risk has materially abated through age, treatment or institutionalisation.

Transitional minefields abound. Division 10 of Part 12 preserves "old orders" under repealed provisions and applies the old breach regime. Practitioners must check the exact commencement date of the 2022 Act against the offence and order dates. Section 148 preserves 50 per cent non-parole for pre-commencement drug and domestic violence offences, creating dual regimes within the same sentencing hearing.

Finally, s 102A requires the offender to sign prescribed orders (suspended sentences, community correction orders, intensive community correction orders and variations) before leaving the court precinct. Police may arrest without warrant for non-compliance. This seemingly minor administrative step has led to unnecessary breach proceedings when overlooked.

Compliance for judicial officers begins with a structured s 5(2) checklist: record each mandatory factor, expressly address victim harm (including any sexually transmissible condition under s 5(2)(ba)), domestic violence risk (s 5(5)-(6)), and aggravating features (s 6A). For mandatory minimum cases, obtain clear instructions on priors and prepare exceptional circumstances submissions supported by victim impact material and other relevant matters (s 78DB(2)), explicitly excluding intoxication or co-offending.

Defence practitioners should commission pre-sentence reports early (s 105) addressing suitability for community correction or intensive orders, financial capacity for fines (s 17), and cultural matters under s 104A with proper notice to the prosecution. For Aboriginal clients, consider applying for community court sentencing (s 107D) and ensure the Aboriginal experience report (s 107B) covers criminogenic factors, community impact and rehabilitation steps. Guilty plea timing must be strategic; entering late in a listed Local Court trial triggers s 123A prohibition on leniency unless impossibility is proven.

Prosecutors must tender victim impact statements or reports (s 106B), provide factual basis for taking other offences into account (s 107), and notify the court of indefinite sentence applications within 14 days of conviction (s 66(2)). When opposing variation or breach applications, rely on Commissioner reports and monitoring records (ss 39C, 48H).

Correctional Services must ensure pre-sentence reports address monitoring capacity (s 35) and project availability (s 36). Breach applications should be supported by admissible evidence; justices issuing warrants must be satisfied the offender may not appear (ss 39A(1)(b), 48F(1)(b)).

To avoid invalidity, courts must explain conditional orders in readily understood language and obtain consent (s 102), ensure offenders sign orders before leaving (s 102A), and give reasons for departing from standard non-parole ratios (s 53AA(3)) or fixing non-parole for murder (s 53A(9)). Records must certify taken-into-account offences (s 107(7)).

Regular audit of transitional applicability is essential. For pre-25 March 2024 offences, confirm whether old or new community order regimes apply (Division 10 of Part 12). For murder non-parole after 1 April 2026, apply the amended s 53A only to post-commencement conduct (s 158).

Compliance is best assured by treating the Act as an integrated code: begin with purposes (s 5(1)), apply mandatory considerations and prohibitions, select the least restrictive suitable option consistent with statutory constraints, and document every step to withstand appellate review under s 110 or s 112.