The criminal courts
Sentencing: The judge’s decision about punishment
The different types of sentences
Sentencing Act 2002, ss 10A-18 and Part 2
There are a range of sentences that a judge can give, depending on what’s appropriate in the particular case. A judge can also give a combination of sentences.
The following are the categories of possible sentences and orders:
Discharge, or order to come up for sentence
- Discharge without conviction – this is the equivalent of being found not guilty (an acquittal). The judge can only discharge without conviction if the direct and indirect consequences of a conviction would be out of all proportion to the seriousness of the offence. Also, a discharge without conviction can only be given if the particular offence doesn’t have a minimum sentence. A judge can grant a discharge without conviction with no further penalty or they can grant it alongside any other order they would have been able to make if sentencing you in the ordinary way. This includes disqualifying you from driving for a certain period, or making an order to pay the victim for any losses you caused (“reparation”). A discharge without conviction means you do not have a criminal record.
- Conviction and discharge – The judge can only convict and discharge if the judge is satisfied a conviction would be a sufficient penalty in itself. This means you do have a criminal record but receive no other penalty except the fact of conviction. This charge will go onto your criminal record. This is only available if there isn’t a minimum sentence.
- Order to come up for sentence if called on – If you have been convicted, then instead of imposing a sentence the court may order you to come up for sentence if called on within a period of up to one year. This means if you come back to court within that time you could then be sentenced on the earlier charge too. This is sometimes called a “suspended sentence” or a “good behaviour bond”. If you receive a suspended sentence, the judge can also make an order for you to pay reparation to any victim of your offending. You can only be recalled for sentencing if you either fail to pay any reparation you were ordered to pay or if you commit a Category 2 or above offence within the specified time period. You cannot be recalled for sentencing if you only receive an infringement notice or are charged with a Category 1 offence.
Fines and reparation
- Paying a fine – A fine is a punishment for breaking the law. It’s paid to the court. For more information about fines, see “Fines” below.
- Paying reparation – Reparation is a payment as a form of compensation made by an offender to a victim of a crime. Usually, payment is made to the court, which then forwards the money to the victim.
The $50 offender levy
Sentencing Act 2002, ss 105B, 105D
Everyone sentenced in the District or High Court has to pay a special $50 fee called the “offender levy”. The offender levy is used to fund services for victims of serious offences.
Community-based sentences
- Community work – This requires you to complete a set number of hours of community work, between 40 and 400 hours. Sometimes the probation officer (who oversees your community work sentence) will give you permission to complete some of your hours by completing education or training courses.
- Supervision – You will have regular check in meetings in person or over the phone with a probation officer for a period of between six months and one year, and must comply with various reporting, residential (where you live), association (who you can hang around with) and other conditions.
- Intensive supervision – You will have regular check in meetings in person or over the phone with a probation officer for a period of between six months and two years and must comply with various reporting, residential, association and other conditions. It involves more frequent reporting to the probation officer than for a standard sentence of supervision, and it may include doing a residential programme as one of the conditions.
- Community detention – You are required to remain at an approved residence under electronic monitoring (that is, wearing an ankle bracelet) for between two and 84 hours per week for a period of up to six months. Community detention sentences most commonly involve a daily overnight curfew (for example, requiring you to be home between 7pm to 7am each day). An “approved residence” means a residence that a probation officer has said is suitable for you to live at while under detention. The other people in the house must know about the conditions of your sentence and need to agree to you serving the sentence there. They can withdraw their consent at any time.
Home detention and prison
- Home detention – You are required to remain at an approved residence under electronic monitoring with strict limitations on when you can be away from the residence and close supervision by a probation officer. Sentences can be for a period of 14 days to 12 months. The main difference between community detention and home detention is that home detention can (and frequently does) involve a 24-hour, 7-day-per-week curfew, meaning you may be required to be at home at all times, except when the court permits otherwise.
- Imprisonment – You will be held in prison until you are released. If you have been held in custody before trial, that time will be taken into account and taken off your sentence. Depending on the length of your sentence, you’ll be released from prison either when you get parole, as early as halfway through your sentence or when your sentence ends.
- If your sentence is two years’ imprisonment or less, you will usually be eligible to be released when you have served half of your sentence. You will be subject to “release conditions” for the remaining period of your sentence. For example, if you have been sentenced to two years’ imprisonment and are released after 12 months, you will be subject to release conditions for 12 months.
- If your sentence is more than two years’ imprisonment, you can only be released if you are given parole. Parole means you are released from prison early without serving your full sentence, following a Parole Board hearing. You have to follow the Board’s conditions for the remaining time of your sentence and be supervised by a probation officer. In most cases, you will be allowed to apply for parole after serving one third of your sentence.
Will I get the maximum sentence?
All offences have a maximum penalty. The judge will look at the facts of the case to decide what sentence is appropriate in the circumstances. It is not common for a maximum sentence to be imposed and it is given only in the most serious cases.
Special rules for serious violent and sexual offences: the “Three Strikes” law
Sentencing Act 202 ss 86J – 86T Schedule 1AB
For certain serious violent and sexual offences, there are extra rules on top of the usual sentencing law. These rules are often called the “Three Strikes” law.
The three-strikes system imposes the following penalties:
- First strike: The offender receives a formal warning.
- Second strike: The offender is sentenced without the possibility of parole.
- Third strike: The offender serves the maximum sentence for the offence without parole.
Judges still have some discretion not to apply the full Three Strikes penalty if that would be ‘manifestly unjust’ in the circumstances.
These rules only apply to the most serious violent and sexual offences. They do not apply to minor offences such as shoplifting, tagging, fisheries offences, or low-level drug offending. For those offences, sentencing continues to work under the ordinary rules described earlier in this section.