When a magistrate or judge (“the judge”) is required to impose a sentence on a person found guilty of a crime, the judge should follow a well-recognised four-step approach. It can be summarised as follows.

The first step

The judge must first consider the purposes of sentencing, as set out in the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), and apply the important test set out in section 5 of that Act – the threshold test.

Section 5 precludes the imposition of imprisonment unless the judge is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The judge must consider options available instead of a sentence of imprisonment – including community correction orders and conditional release orders. 

The second step

If the judge is satisfied that no penalty other than imprisonment is appropriate, the next step is to determine the term of the sentence and to do so without reference to the way that it is to be served.

The third step

If the judge is sentencing an offender for more than one offence, it is at this stage that the judge should determine whether to impose a single aggregate sentence and, if so, the term of that sentence.

The fourth step

It is only after the term of imprisonment has been determined that the sentencing court considers the way (“mode”) that the sentence is to be served.

Intensive Correction Orders (ICOs)

The CSPA provides that an ICO is available for certain offences provided that the term of imprisonment does not exceed 2 years (or, 3 years in the case of an aggregate sentence).

After the term of imprisonment is set, the judge may then consider whether it should be served by an ICO or full-time custody – provided the offender is eligible for the different modes.

It is important for the judge to remember that, whilst an ICO has the potential to operate as substantial punishment, it may also reflect a significant degree of leniency as it does not involve immediate incarceration. This leniency will not be warranted in every case.

The judge must ensure that the ultimate sentence punishes the offender, denounces their criminal conduct and provides sufficient deterrent to others who may be tempted to offend, to ensure that they refrain from criminal activities.

If the judge is of the opinion that an ICO may be appropriate, the judge must then proceed to consider the “paramount consideration” – community safety. The legislation provides that community safety is a mandatory consideration and its consideration must be apparent from the reasons of the judge. Community safety is not the only necessary consideration – rehabilitation, accountability and denunciation, amongst others, remain relevant in the judge determining whether to make an ICO.

Ultimately, the judge is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

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