Criminal Penalties


What is a section 10?

Section 10 of the Crimes (Sentencing Procedure) Act provides for dismissal of charges and condition discharge of offender. The Act states that in a plea of guilt a court may dismiss ordering a conviction by making 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 (see discussion on section 9 below)

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program.[1]


What is a conditional release order?

Section 9 of the Act states a conditional release order means a court can instead of imposing a sentence or a fine may make a conditional release orders discharging the offer, if

  1. A) the court proceeds to conviction
  2. B) does not proceed to conviction however has made an order under section 10.

In deciding the appropriateness of a section 9 order, the court considers factors such as:

(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.


What is a community corrections order?

Section 8 of the Act defines community correction orders as an alternative to imprisonment. Section 88 of the Act outlines the standard conditions of a community correction order. The standard conditions are nonnegotiable and include the following:

  1. A) an offence must not commit any offence
  2. B) the offender must appear before the court of called on to do so at any time during the term.[2]


What is an intensive corrections order?

Section 7 of the Act defines an intensive corrections order as an alternative to imprisonment. An intensive correction order allows the offender to serve their sentence in the community instead of at a correctional centre. A non-parole period cannot be set with an intensive


When can I get community service?

Community service is an alternative to imprisonment. Section 3 of the Crimes (Administration of Sentences) Act defines community service work any service or activity approved by the Minister, and includes participation in personal development, educational or other program.[3] The order is usually not given to offenders of more serious crimes. The number of voluntary hours the person is required to do is proportionate to what the imprisonment sentence would have been. Section 88 standard conditions apply, whereby the offender is expected to ensure the following:


  1. A) an offence must not commit any offence
  2. B) the offender must appear before the court of called on to do so at any time during the term.[4]


Can I be sentenced to home detention (under what sentencing options)?

Home detention is an alternative to imprisonment. The offender is confined to the parameters of an approved residential address during specific hours for the duration of the imprisonments sentence. Electric monitoring and close regulation ensure compliance with the home dentition conditions. The penalty allows the offender to serve the sentences at home. Home detention is only possible by way of an Intensive Corrections Order.


What is the “section 5” threshold?

The section 5 threshold describes the requirement that the 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. This responsibility of the court is stated under section 5 of the Act and covers all custodial sentences including: imprisonment, intensive corrections order and home detention.[5]


What is the standard non parole period?

Extracted from part 4 division 1A of the Crimes (Sentencing Procedure) Act 1999 a standard non parole period provides guiding for sentencing judges. The provision outlines a set minimum length of time a convicted person needs to spend in prison before they are eligible to be considered for parole. The types of offences where a non-parole period is present are of a very serious criminal nature.[6]


What is the relevance and effect of Muldrock v The Queen [2011] HCA 39 on sentencing in NSW?

In this case Mr Muldrock had been sentenced for an offence that had a standard non parole period. During his trial a two-stage test to sentencing had been applied. The two-stage test involved the court setting the standard non-parole period as the non-parole period and then considering other factors. This case was appealed, and the high court cautioned against the two stage approach. Instead the high court found that only the standard non parole period is the only consideration needed. The effect of this case is that if you are convicted of an offence that has a standard non parole period, that will be the minimum sentence you will need to serve. [7]


What is a sentence assessment report? When can it be ordered? Who orders it?

A sentence assessment report is a report produced by an officer to assist the court in sentencing. A sentence assessment report is required in situations where the court is considering ordering custodial sentences other than prison. The report will include information such as:

  • living arrangement
  • education and or employment
  • Mental health
  • Willingness to undertake rehabilitation or be supervised
  • How much of a risk you are to the community


Can I be sentenced to imprisonment with hard labour in NSW?

No, hard labour is a historical penalty that was ordered in association with a custodial sentence served in prison. The order forced offenders to do physical labour as punishment. The act no longer provides for this directly, however there are indirect links still present. For instance, community service can involve aspects of physical labour just not to the same extent.


Can I still technically get the death penalty in NSW?

No, NSW abolished the death penalty in 1985. The most serious penalty present in NSW is lifetime imprisonment.


[1] Crimes (Sentencing Procedure) Act (NSW) S 10.

[2] Crimes (Sentencing Procedure) Act (NSW) S 8.

[3] Crimes (Administration of Sentences) Act (NSW) S 3.

[4] Crimes (Sentencing Procedure) Act (NSW) S 88.

[5] Crimes (Sentencing Procedure) Act (NSW) S 5.

[6] Crimes (Sentencing Procedure) Act (NSW) Part 4 Div 1.

[7] Muldrock v The Queen [2011] HCA 39.

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* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact us for legal advice tailored to your situation. *

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