Penalties of imprisonment

[3-300] Imprisonment as a sanction of last resort

Section 5(1) Crimes (Sentencing Procedure) Act 1999 provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

This provision reflects the common law principle that imprisonment should be used as a sanction of last resort: R v Way (2004) 60 NSWLR 168 at [115]. A sentence of imprisonment should only be imposed if no other sentence is appropriate. When approaching the imposition of a sentence of imprisonment, there are three steps a sentencing court should follow: R v Zamagias [2002] NSWCCA 17 at [25]–[26]; R v Douar (2005) 159 A Crim R 154 at [69]ff; R v Hamieh [2010] NSWCCA 189 at [82]–[84].


The first question (described as “the preliminary question” by Howie J in R v Zamagias at [25]) to be asked and answered is whether there is an alternative to the imposition of a sentence of imprisonment.


Having determined no penalty other than a sentence of imprisonment is appropriate, the court must determine the term of the sentence. If a court sentences an offender to imprisonment for 6 months or less, s 5(2) requires that reasons be given for doing so, including for deciding:


that no penalty other than imprisonment is appropriate, and


not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).


Once the term of the sentence of imprisonment has been determined, the court must then consider whether an alternative to full-time imprisonment is available and should be utilised: R v Zamagias at [25]–[29]. This will depend on the length of the term of sentence and any preconditions set out in legislation. It is preferable that a sentencing judge articulate his or her conclusion as to the appropriate term before determining whether there is an alternative to full-time imprisonment: R v Assaad [2009] NSWCCA 182 at [33].

In Brown v R [2006] NSWCCA 144 at [51]–[53], the judge determined that no penalty other than imprisonment was appropriate and the length of the term of imprisonment. However, the judge failed to complete the final step and consider how the sentences of imprisonment should be served, in particular, whether execution of the sentences should be suspended (an option no longer available since the repeal of s 12, with effect from 24 September 2018). Similarly, in Campbell v R [2018] NSWCCA 87 at [46]–[48], [51]–[52], the court concluded the judge erred by failing to consider alternatives to full-time custody. Where a sentence of less than 2 years imprisonment is imposed and there are clear alternatives available, it is preferable to make it clear that such alternatives have been considered and explain why they are not appropriate: Campbell v R at [53].

In Casella v R [2019] NSWCCA 201, the Chief Justice, at [63]–[65], referred to this aspect of Campbell v R, observing that a failure to adopt this course is not, of itself, erroneous. However, mechanical compliance with the relevant requirements, without elaboration, might result in some uncertainty about the reasons why the s 5 threshold was met and, in certain cases, why alternatives to full time custody were rejected: Casella v R at [65].

Failing to comply with s 5 does not invalidate the sentence: s 5(4).

Intensive correction orders (ICOs)

A court that has sentenced an offender to imprisonment in respect of one or more offences may make an ICO directing that the sentence be served by way of intensive correction in the community: s 7(1) Crimes (Sentencing Procedure) Act. An ICO is a “custodial sentence” referred to in Pt 2, Div 2 Crimes (Sentencing Procedure) Act. As it is a form of imprisonment, the steps above should be followed. See further Power to make ICO subject to Pt 5 at [3-610].

[3-310] Good practice to refer to s 5

The absence of an express reference to s 5 does not always result in error but it is good practice to refer to the section to avoid any ambiguity concerning its application. In R v Cousins (2002) 132 A Crim R 444, Giles JA, Sperling and Greg James JJ agreeing, said at [33]:

In the applicants’ submissions it was noted that the sentencing judge had not referred to s 5 of the Crimes (Sentencing Procedure) Act, by which a judge must not sentence an offender to imprisonment unless satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. Absence of express reference does not mean sentencing error, and from the transcript of the submissions made to his Honour it is plain that he turned his mind to whether sentences less than sentences of imprisonment were appropriate. The applicants’ then counsel acknowledged that sentences of imprisonment were “open”. In this application the applicants submitted that sentences of imprisonment had not been open, and that his Honour erred in taking up that alternative. I am unable to agree. In my opinion, in the circumstances I have outlined sentences of imprisonment were the only proper sentencing alternative.