When sentencing you, the magistrate will usually go through the details of the offence and your record. They will consider factors, such as:
- the circumstances of the offence, including any 'aggravating' or 'mitigating' factors
- the maximum penalty for the particular offence
- your financial situation
- your driving or criminal record
- whether you have completed any relevant programs
- whether or not you are remorseful for committing the offence.
A Sentencing Assessment Report (SAR) is a report which may be ordered by the court after you plead guilty or are found guilty of a crime. The report is prepared by Community Corrections, which are part of Corrective Services NSW. Community Corrections will interview you and ask you questions for the purpose of the report.
The report will include a risk assessment and make recommendations about whether you are suitable for a supervision plan or community service work.
The assessment report will include:
- sources of information: this is a list of where the information in the report has come from.
- current circumstances: this will include information like where you are living, your court matters, your family situation and education/employment.
- factors relating to offending: this will include information such as your attitude, substance abuse, your finances and your mental health.
- responsivity: this is information about your willingness and ability to undertake intervention programs.
- assessment and recommendations: Community Corrections will make an assessment of your level of risk of committing another crime and make a recommendation about whether you are suitable to go on a supervision plan or for community service work.
Previously, Pre-Sentence Reports (PSR) were ordered by the court to help make a decision about what is an appropriate sentence. These have now been replaced with Sentencing Assessment Reports.
If you believe any of the factual information on the assessment report is incorrect, you should get legal advice.
Every offence has a maximum penalty. The maximum penalty is the highest penalty a court can give you for the offence.
On September 24 2018, changes were made to the type of penalties the court can give someone.
Depending on the type of offence, the court may consider sentencing you to one or more of the following:
There are different type of section 10's including:
- section 10(1)(a) or section 10 dismissal
- section 10(1)(c)
- section 10A.
The court can find you guilty but not record a conviction.
A section 10 dismissal means you cannot be given any other punishment.
A section 10 dismissal is usually only given where:
- you have a clear criminal and/or driving record
- your offending behaviour is minor
- there is little chance of you offending again
- there were mitigating factors that led to the offence.
Even if the above factors apply to your case, there is no guarantee you will get a section 10 dismissal. If you want to know whether you could get a section 10 dismissal for your case, you should get legal advice.
If you get a section 10 for a driving matter, you will not get any demerit points for the offence.
The court can find you guilty but convict you and refer you to an intervention program.
The court can find you guilty of an offence and convict you, but decide not to punish you any further. This is also called a section 10A penalty. Unlike a section 10 dismissal, your conviction will be recorded, and if it is a traffic matter you will also get demerit points for the offence.
A Conditional Release Order (CRO) is a sentence where you remain in the community but are supervised by Community Corrections (part of Corrective Services).
The court can decide whether or not to record a conviction, when sentencing you to a Community Release Order. The order will be for a maximum of 2 years You will have to follow the conditions described by the magistrate.
Every CRO has these mandatory conditions:
- you must not commit any offence, and
- you must attend any court date.
The magistrate has the power to also include other conditions that you have to follow.
You should get legal advice, if you think you have breached the conditions of your community release order.
Before 24 September 2018, you could be sentenced to a section 10 bond. This was often referred to as a "good behaviour bond" because a condition was to be of good behaviour. The court no longer has the power to give a section 10 bond. If you are on a section 10 bond, you must continue to follow the conditions of that bond. This is now referred to as a CRO. If you are on a section 10 bond and you are convicted of another offence the court can re-consider the penalty for the offence you committed to get the section 10. This means they can re-open your previous matter to decide on a new penalty.
A Community Correction Order (CCO) is a type of sentence where you remain in the community but are supervised by Community Corrections. A CCO is a harsher penalty than a CRO.
If you receive a CCO a conviction will be recorded.
Every CCO has the following conditions:
- you must not commit any offence, and
- you must attend any court date.
The magistrate has the power to also include other conditions that you have to follow.
If you think you have breached the conditions of your community correction order, you should get legal advice.
If you get a fine, you have to pay money to the court within 28 days. For many minor offences this is the most common penalty.
If you do not pay your fine within 28 days the court can send the fine to Revenue NSW, who can then take enforcement action against you to recover the fine.
If you cannot afford to pay the fine in one go, you can apply for time to pay.
For more information, see After court.
A magistrate can order that you serve the term of imprisonment by way of an Intensive Correction Order (ICO).
An ICO means you are subject to certain conditions for a period of time. The compulsory conditions are:
- you must not commit any offence, and
- you must submit to supervision by a community corrections officer.
A court must also impose at least one of the following conditions (unless there are exceptional circumstances):
- home detention
- electronic monitoring condition
- curfew condition
- community service work condition
- rehabilitation or treatment condition
- banning you from drinking alcohol or taking drugs
- banning you from communicating/seeing certain people (non-association condition)
- banning you from going certain places (place restriction condition).
The magistrate can also include other conditions on your order if they think it is appropriate.
Many criminal and driving offences can be punished by imprisonment. The length of a prison sentence can range from a few months to many years, depending on the offence. A term of imprisonment usually involves (unless the term is of 6 months or less) a 'non-parole period' which is the minimum term that will be spent in prison and an 'additional term' which is the period of time to be served on parole in the community.
Before 24 September 2018 a court could give someone a suspended sentence. This meant they were not automatically sent to prison and the sentence was suspended.
If you have previously been given a suspended sentence it will continue for the period imposed by the court. Committing another offence while you on a suspended sentence may mean you are sent to prison.
If you have committed another offence while you are on a suspended sentence, you should get legal advice.
On 24 September 2018 major sentencing reforms commenced in New South Wales.
Even if you were sentenced before this date, you may be affected by the change.
Some types of sentences, which were given before the commencement date, were automatically converted (changed into) a new type of sentence.
The table below outlines sentence conversion:
| Sentences given before 24 September 2018 | Converted sentence as of 24 September 2018 |
|---|---|
| Home Detention Order | Intensive Correctional Order (ICO) with home detention condition |
| Intensive Correction Order (ICO) | New Intensive Correction Order (ICO) |
| Community Service Order (CSO) | New Community Correction Order (CCO) with community service condition |
| Section 9 good behaviour bond | New Community Correction Order (CCO) |
| Section 10(1)(b) bond | New Conditional Release Order (CRO) |
| Suspended sentence (s.12) | Stays the same. Only changes if it is revoked. |
For more information about how your current sentence may be affected, you should get legal advice.
The court can also order:
- a period of licence disqualification
- a recommendation for Transport for NSW to consider your fitness to drive
- mandatory interlock program
- costs.
If you are convicted of a driving offence, the court may disqualify you from holding a driver licence for a period of time. At the end of the disqualification period you will need to apply to the Roads and Maritime Services (RMS) to get your licence back before you can drive.
If you are concerned about losing your licence, you should get legal advice.
There are serious penalties for driving while disqualified, including further disqualification periods, large fines and imprisonment. If your drivers licence has been disqualified and you are caught driving, you should get legal advice.
For more information, see Losing your licence.
In some circumstances, the court may make a referral to Transport for NSW (TfNSW) to assess whether you should be driving.
This may happen if some of the material considered by the court raises the question of whether you are medically fit to drive, due to a medical condition, illness or injury.
TfNSW may send you a letter asking you to take a fitness to drive medical assessment.
For more information, see Getting a medical assessment for Fitness to Drive on the NSW Government website.
If you have been convicted of a driving offence including alcohol, the court may make an Alcohol Interlock Order. An Alcohol Interlock Order may be made if you have been convicted of:
- a mid-range prescribed concentration of alcohol (PCA) offence
- a high prescribed concentration of alcohol (PCA) offence,
- a second or subsequent drink driving offence in a 5 year period,
- failing to provide a breath or blood sample when requested by police, or
- other serious driving offence involving alcohol.
An Alcohol Interlock Order means you will have to complete a disqualification period during which you cannot drive. When the disqualification has ended, you may be able to obtain an interlock driver licence. If you have an interlock driver licence, you are only allowed to drive vehicles which are fitted with an approved interlock device. This device requires you to provide a breath sample before the vehicle will start. The device must be installed and regularly maintained by an approved provider. Tampering with the device is an offence.
If you do not obtain the interlock driver licence, you will be disqualified from driving for 5 years from the date of conviction (as at 1 February 2015).
The court can make an exemption order that means you do not have to obtain an interlock driver licence or interlock device at the end of your disqualification period. However, an exemption order can only be made in limited circumstances.
An exemption order can be made if you prove:
- you do not have access to a vehicle which an interlock device can be installed, or
- you have a medical condition (and evidence) that stops you from being able to provide the interlock device with enough breath to operate.
If you have been convicted of a first offence, mid range drink driving offence the court may give an exemption order if you prove:
- you do not have access to a vehicle which an interlock device can be installed, or
- you have a medical condition (and evidence) that stops you from being able to provide the interlock device with enough breath to operate.
If you have been convicted of a first offence, mid range drink driving offence the court may give an exemption order if you prove:
- that the making of a mandatory interlock order would cause severe hardship and
- that it is more appropriate for the court to make an interlock exemption in all the circumstances than the making of a mandatory interlock order.
For more information, see the Alcohol Interlock Program page on the NSW Government website.
In addition to any court fine you may receive for the offence you committed, you may also be ordered to pay courts costs, a victims support levy, legal costs, criminal compensation and restitution.
For more information, see After court.
This is a program for Aboriginal people where members of the Aboriginal community are part of the sentencing process.
If you think that the sentence you are given is too harsh or inappropriate, do not argue with the magistrate. You may be able to appeal to the District Court within 28 days of the decision. Before you file an appeal, you should get legal advice.
For more information about appeals, see Appeals.
Useful Links
- Aboriginal Legal Service (ALS)
- NSW Drug Court
- NSW Local Court
- NSW Police Force: Drug Programs and Initiatives
- NSW Communities and Justice video - ASU: What steps do I have to take?
- NSW Communities and Justice video - Finding ASU in Court
- NSW Government - Getting a medical assessment for Fitness to Drive
- Magistrates Early Referral into Treatment (MERIT) Program
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