Imprisonment

The court will only issue you the most serious and restrictive penalty of imprisonment, after having considered all possible alternatives and deciding that imprisonment is the most appropriate. Imprisonment (or ‘full-time custody’) is essentially a sanction of last resort: R v Way (2004) 60 NSWLR 168 at [115]. 

Adult offenders are held in adult Correctional Centres. In the children’s court, this would be called a control order and the young person would be held in a juvenile detention centre.

When sentencing someone to imprisonment, the court will set a full term of the sentence and a separate non-parole period: s 44(1) of the Crimes (Sentencing Proceedings) Act 1999 (NSW). A non-parole period is a minimum term the offender must serve before being eligible for release. 

If a court decides to not set a non-parole period, they must provide sufficient reasoning for this decision. The court may decline to set a non-parole period for the following reasons:

• because of the nature of the offence, the antecedent character of the offender, or

• because of any other penalty previously imposed on the offender, or

• for any other reason that the court considers sufficient.

​

The court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less: s 46 of the Crimes (Sentencing Proceedings) Act 1999 (NSW). In such cases, the Judge must explain the reasons for not imposing a penalty other than imprisonment: s 5(2) of the Crimes (Sentencing Proceedings) Act 1999 (NSW).

The court must set a non-parole period that is not less than three-quarters of the full term of the sentence unless there are ‘special circumstances’ justifying a reduction: s 44(2) of the Crimes (Sentencing Proceedings) Act 1999 (NSW).