Penalties of imprisonment

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

Last reviewed: February 2026

Section 5(1) Crimes (Sentencing Procedure) Act 1999 (the Act) provides 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 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]; see also Sarhene v R [2022] NSWCCA 79 at [36]; West v R [2017] NSWCCA 271 at [60]–[66].

The High Court has affirmed the following three step process outlined in R v Zamagias [2002] NSWCCA 17 at [25]–[29] when approaching the imposition of a sentence of imprisonment: Stanley v DPP [2023] HCA 3 at [59].

1. 

Is there an alternative to the imposition of a sentence of imprisonment? (“the preliminary question”).

2. 

If a sentence of imprisonment is appropriate and no other sentence is available, what is the term of the sentence?

3. 

Are any alternatives to full-time imprisonment, such as an intensive correction order (ICO), available (subject to any legislative preconditions), and should they be utilised?

The s 5(1) determination is evaluative and based upon a range of considerations including the objective seriousness of the offence, the need for general and specific deterrence, and the offender’s subjective case: see for example Sarhene v R at [2], [35]–[39]; Ferguson v R [2024] NSWCCA 81 at [152]; Rudolf v R [2016] NSWCCA 313 at [53]–[58]; EF v R [2015] NSWCCA 36 at [46]–[48].

In relation to the second step, if the term of the sentence is 6 months or less, s 5(2) requires the court to give reasons, including for deciding that no other penalty is appropriate, and for not making an order for the offender to participate in an intervention program, rehabilitation or treatment, if they have not already done so for the offence.

In relation to the third step, a court that has sentenced an offender to imprisonment may make an ICO directing that the sentence be served by way of intensive correction in the community: s 7(1). An ICO is a “custodial sentence” referred to in Pt 2, Div 2 of the Act. As it is a form of imprisonment, the steps above should be followed: Stanley v DPP at [59]. For a discussion of these steps in the context of considering an ICO, see [3-630] ICO is a form of imprisonment.

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

For a discussion of the sentencing procedures for imprisonment, see [7-500]ff.