Sentencing: The judge’s decision about punishment
The different types of sentences
Sentencing Act 2002, ss 10A-18, 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. The judge may also order restitution (for example giving back stolen property) or compensation (payment to the victim). A discharge without conviction means you do not have a criminal record.
- Conviction and discharge – This is only available if there isn’t a minimum sentence. Also, 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.
- 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”.
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.
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.
- 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 for between two and 84 hours per week for a period of up to six months. 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.
- Imprisonment – if you have been held in custody before trial that time will be taken into account and taken off your sentence. You’ll be released from prison when you get parole or when your sentence ends (“time served”).
- Parole means you are released from prison early following a Parole Board hearing without serving your full sentence. You have to follow the Board’s conditions for the remaining time of your sentence and be supervised by a probation officer.
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. The maximum sentence is usually given only in the most serious cases.
Three-strikes has been repealed
Three Strikes Legislation Repeal Act 2022
The Sentencing and Parole Reform Act 2010 introduced what was commonly known as the three strikes law. If you were convicted of a third serious violent offence, you’d be automatically given the maximum penalty for that offence.
In August 2022, the three strikes law was repealed. Judges are not bound to give out maximum penalties, and they will now make sentencing decisions using their discretion based on a number of factors (as explained below).
However, if you were already sentenced under the three strikes law before August 2022, this doesn’t mean your sentence will be reconsidered.
