Call for your free consultation (02) 9025 9888

How does the Court determine a term of imprisonment?

When sentencing for any offence, imprisonment is considered to be a measure of last resort. There are a number of factors that a magistrate or judge will take into...

Justin Wong

When sentencing for any offence, imprisonment is considered to be a measure of last resort. There are a number of factors that a magistrate or judge will take into account when determining the term of imprisonment. This can include: 

  • A period of non-parole
  • Aggregate sentences
  • Special circumstances
  • Commencement date

Non-parole period

A non-parole period is as the name suggests – the minimum period in which the offender is in full-time custody and is not eligible for parole. The offender can apply for parole once this period ends.

Some offences have a legislated standard non-parole period. This represents the non-parole period for an offence in the middle of the range of objective seriousness. A judge or magistrate will take this into account as well as the maximum penalty to determine the appropriate sentence.

For a sentence of imprisonment of more than 6 months, the court will usually impose a non-parole period.

This is determined by considering factors like:

  • Objective seriousness of the crime
  • The offender’s subjective circumstances
  • Risk of re-offending

Additionally, the non-parole period must not be less than three quarters of the total sentence unless there is a finding of special circumstances.

Aggregate sentences

An aggregate sentence takes into account multiple offences to impose a total period of imprisonment. This sentence cannot exceed the sum of the maximum periods of imprisonment for each separate offences.

The court must also indicate that they are imposing an aggregate sentence and specify the sentence they would have imposed for each separate offence.

The maximum aggregate sentence you can receive in the Local Court is five years.

Special Circumstances

As mentioned earlier, special circumstances can affect the length of a non-parole period.

Legislation does not tell us exactly what is considered to be ‘special circumstances’, however, some past cases have successfully argued the following:

  • Rehabilitation or reform
  • The offender requires substantial assistance to overcome addiction
  • First custodial sentence
  • Ill health, mental illness or disability
  • Youth or advanced age
  • Hardship to family members such as the care of young child

Sometimes, it may be the accumulation of a number of these factors or other relevant factors which leads to a finding of ‘special circumstances’.

Commencement Date

The start date for the term of imprisonment will usually be the day the sentence is delivered. If, however, the offender has served time in custody awaiting their trial or sentencing, this may be taken into account and the start date can be backdated.

These are only some of the factors involved in the sentencing process. Factors related to all types of sentence can be found on our webpage here. Given the complexity of the sentencing process, we highly recommend seeking legal advice from one of our sentencing experts.

Photo by Donald Tong