Sentencing in NSW

1. When and where a sentencing hearing occurs

A sentencing hearing in NSW may occur:

• Immediately following a guilty plea in a Local Court, or
• On another day set by the court after a guilty plea has been entered by the defendant or the finding of guilt made by the Court following a hearing.

The sentencing hearing will take place before a Magistrate (in the Local Court) or a Judge (in the District and/or Supreme Court). It is for that trier of fact to determine the most appropriate sentence.

In more serious matters, the final sentencing may be delayed permitting the defendant to collect additional materials in support of their subjective case (such as medical reports, psychological assessments, character references, and any other material relevant to the sentencing process) or to allow the Court to obtain a full pre-sentencing assessment report from Community Corrections.

The location of the sentencing hearing will be as stipulated on the Court Attendance Notice and Fact Sheet served on the defendant by NSW Police or as advised by the defendant’s legal practitioner.

2. What is a sentencing hearing?

A sentencing hearing is the stage where the court determines the most appropriate penalty after a plea of guilty has been entered or a finding of guilt made following a hearing.

Pleading Guilty Does Not Mean the Outcome Is Fixed

Many people assume that once a plea of guilty is entered, the result is inevitable. This is not how sentencing works. Courts evaluate both the offence and the individual standing before them. A carefully prepared sentencing case can dramatically influence the penalty imposed.

An experience defence lawyer focuses on presenting a structured, persuasive narrative that highlights the defendant’s circumstances, insight, and prospects for rehabilitation.

In determining the most appropriate penalty, the court will consider the following factors:

• The objective seriousness of the offence,
• The moral culpability of the defendant,
• If applicable, the extent of any physical or mental harm caused to other persons as a result of the defendant’s conduct,
• If applicable, the extent of any property damage occasioned by the defendant,
• Identify whether there exist any features in further aggravation of the defendant’s conduct,
• Assess the extent of any features in mitigation of the defendant’s conduct,
• The criminal history of the defendant,
• The personal circumstances of the defendant,
• Whether any remorse and/or insight has been displayed by the defendant,
• What steps, if any, have been taken by the defendant towards their own rehabilitation,
• Any impact on the defendant’s employment and/or family,
• Assess the defendant’s risk of re-offending, and
• Any other factor that the Court deems is relevant to the sentencing exercise.

It is generally the role of the defence practitioner to ensure that these factors are properly articulated and supported.

3. What are the purposes of sentencing?

The purpose of sentencing is to:

• Impose a punishment reflecting the objective seriousness of the offence,
• Deter the defendant and others from future offending,
• Promote the rehabilitation of the defendant,
• Ensure that the community is adequately protected, and
• Recognise any harm occasioned to the victim or to the community.

4. Who appears at a sentencing hearing and what are their roles?

The Judge or Magistrate
The decision-maker who hears submissions, considers evidence, and ultimately imposes the sentence. They ensure that only legally relevant factors are considered and make sentencing remarks to explain their decision.

The Prosecution
Represented by the Office of the Director of Public Prosecutions (ODPP) in serious matters, or by a police prosecutor in less serious cases. The prosecution:

• Presents the facts agreed upon (or established at trial) and the defendant’s record,
• Provides sentencing submissions including comparisons with similar cases,
• May call evidence relevant to disputed facts that affect sentencing; and
• Assists the court to determine aggravating factors.

The Defence
The defendant and their legal representative may:

• Provide mitigating evidence (e.g., character references, psychological reports),
• Call witnesses and the offender (if appropriate) to give personal context,
• Make submissions arguing for a more lenient sentence; and
• Respond to prosecution submissions.

Victims and Victim Impact Statements
A Victim Impact Statement (VIS) may be presented to the court, often read aloud, outlining the physical, emotional, or financial harm caused by the offence. Victims may also appear in court, though attendance is not compulsory.

Community and Offender Services
The court may order a pre-sentence report, prepared by Community Corrections or, for young offenders, by Youth Justice, detailing the offender’s background, personal circumstances, and available sentencing options.

5. What is a pre-sentencing assessment report?

A pre-sentencing assessment report (‘PSAR’) is a document prepared for the court to help a judge or magistrate decide the most appropriate sentence for a defendant. It provides detailed background information about the person being sentenced and assesses their suitability for certain sentencing options, particularly community-based orders.

Who prepares the report?
The PSAR is prepared by a Government agency known as Community Corrections, (which operates under Corrective Services NSW). A Community Corrections officer interviews the defendant and gathers information about their:

• Personal background
• Criminal history
• Attitude toward the offence
• Risk of reoffending
• Support systems (family, employment, housing) Health issues, including mental health or substance use
• Willingness to comply with court orders

Why is a pre-sentencing assessment report ordered?
A court may order a PSAR when it is considering a sentence that involves supervision in the community, such as:

• A Community Correction Order (‘CCO’)
• An Intensive Correction Order (‘ICO’)
• A Conditional Release Order (‘CRO’)

The report helps the court determine whether the defendant is suitable for a community-based sentence, what conditions should be attached, what level of supervision is required, and whether programs (e.g., anger management or drug treatment) are appropriate. Without this report, a court generally cannot impose certain supervised community orders.

What does the report contain?
A PSAR typically includes:

1. Background information – upbringing, education, employment, family and financial circumstances.
2. Criminal history – summary of prior convictions and compliance with previous orders.
3. Risk assessment – evaluation of the likelihood of re-offending.
4. Suitability assessment – opinion on whether the defendant is suitable for a particular order.
5. Recommendations – specific types of orders, conditions, and/or program participation.

Is the report binding on the Court?
No. The report does not determine the sentence. It is advisory only. The judge or magistrate makes the final decision after considering the seriousness of the offence, sentencing legislation, submissions, and the PSAR. However, courts give significant weight to these reports.

6. What type of sentence might a defendant receive?

Full-time imprisonment
The most severe penalty in NSW. Reserved for the most serious offences or repeat offenders. The defendant is remanded into a correctional centre for a set period.

Intensive Correction Order (ICO)
A term of imprisonment served in the community under strict supervision. Conditions may include electronic monitoring, curfews, community service, or rehabilitation programs. Breach of an ICO can result in serving the remainder of the sentence in gaol.

Community Correction Order (CCO)
A flexible community-based order for offences too serious for a fine but not meeting the imprisonment threshold. Conditions can include supervision, community service, or non-association orders.

Conditional Release Order (CRO)
Often imposed for the lowest levels of offending, with or without conviction. The court considers factors like the person’s character and whether the offence is trivial. Standard conditions include being of good behaviour and appearing before the court if called upon. The term cannot exceed 2 years.

Fines
Courts may impose a fine on its own or with another sentence, based on the maximum penalty and the offender’s financial circumstances.

7. What happens after a sentence is imposed?

If the defendant receives a fine, CRO, or CCO, they will be permitted to leave the Court complex. If they receive an ICO, they must sign the order agreeing to the conditions before leaving. If a supervision condition is imposed, they must report to Community Corrections within the specified time. If sentenced to full-time imprisonment, they are immediately remanded into custody.

8. Can you appeal a sentence?

Yes, you may be able to appeal the sentence to a higher jurisdiction. It is important to speak with an expert defence lawyer as soon as possible due to strict time limits for lodging an appeal.

9. Why strong advocacy matters

Strategic sentencing preparation can materially alter the trajectory of your life. Some supporting material takes weeks to compile properly; rushed preparation rarely produces optimal results. Understanding these options can help defendants to achieve a more favourable outcome tailored to their personal circumstances.