Sentencing Bench Book — Sentencing procedures for imprisonment

Section 44(1)–(3) Crimes (Sentencing Procedure) Act 1999 provides:

Section 53A(1) Crimes (Sentencing Procedure) Act 1999 enables a court sentencing an offender for multiple offences to impose an aggregate sentence of imprisonment instead of separate individual sentences.

The aggregate sentencing provisions were not intended to create a substantive change to sentencing law: PG v R [2017] NSWCCA 179 at [90]. The scheme was introduced to remove some of the complexity involved when sentencing for multiple offences, while preserving the transparency of the sentencing process. It was intended to overcome the difficulties of applying Pearce v The Queen (1998) 194 CLR 610 and the requirement to set commencement and expiry dates for each sentence: JM v R [2014] NSWCCA 297 at [39]; R v Rae [2013] NSWCCA 9 at [45]; Truong v R [2013] NSWCCA 36 at [231]. The overriding principle is that an aggregate sentence must reflect the totality of the offending behaviour: Burgess v R [2019] NSWCCA 13 at [40]; Aryal v R [2021] NSWCCA 2 at [46]. See [8-220] Totality and sentences of imprisonment.

Section 53A(2) requires a court imposing an aggregate sentence to indicate to the offender, and make a written record of:

Failure to comply with s 53A does not invalidate an aggregate sentence: s 53A(5).

An aggregate sentence imposed by the Local Court must not exceed 5 years: s 53B.

A court may impose one non-parole period “after setting the term of the [aggregate] sentence” [emphasis added]: s 44(2A).

Use of the word “after” in s 44(2A) is an indication that it is only possible to determine an aggregate non-parole period after deciding the sentence that would have been imposed for each offence. However, failure to comply with s 44(2A) by pronouncing the non-parole period before the total aggregate sentence is a technical error that does not invalidate the sentence: Hunt v R [2017] NSWCCA 305 at [79].

Section 49(2) sets limits as to the duration of the term of an aggregate sentence of imprisonment stating that it:

The expression in s 49(2)(a) “maximum periods of imprisonment that could have been imposed” appears to mean the maximum penalties for the offences in question. This is based on the text of s 49(1) which provides a single sentence cannot exceed the maximum penalty for the offence.

The aggregate sentence cannot exceed the total of the indicative sentences which should, unless otherwise indicated, be regarded as head sentences for each offence: Dimian v R [2016] NSWCCA 223 at [49]. Indicative sentences should be regarded as head sentences for each of the offences: Dimian v R at [49]. The only circumstance where an indicative sentence might be thought to equate with a non-parole period would be where the sentencing judge expressly states the indicative sentence was to be treated as a fixed term: Dimian v R at [47] with reference to McIntosh v R [2015] NSWCCA 184. See Indicative sentences: fixed term or term of sentence at [7-520].

In JM v R [2014] NSWCCA 297, RA Hulme J (Hoeben CJ at CL and Adamson J agreeing) at [39], summarised the approach a court should take where it chooses to utilise s 53A:

JM v R has been described as the seminal case explaining the aggregate sentencing scheme: Vaughan v R [2020] NSWCCA 3 at [92]; Taitoko v R [2020] NSWCCA 43 at [130]. However, cases since JM v R elaborate on aspects of the propositions summarised.

Section 44(2) and (2B) Crimes (Sentencing Procedure) Act 1999 provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the term of the sentence unless there is a finding of special circumstances (in which case reasons must be recorded for the decision).

In R v GDR (1994) 35 NSWLR 376 at 381, a five-judge Bench said, after noting the limit of the restriction in the former s 5(2) Sentencing Act 1989 (the statutory predecessor of s 44(2)):

The language of s 44(2) constrains or fetters the sentencing discretion by providing that the balance of term must not exceed the non-parole period by one-third unless the court finds special circumstances.

Parliament has not prescribed at which stage of the sentencing exercise the court must consider the issue of special circumstances. There is nothing in s 44 Crimes (Sentencing Procedure) Act 1999 or the case law which mandates a method or, to adopt the High Court’s term in Markarian v The Queen (2005) 228 CLR 357 at [27], the “path” the court must take.

See What constitutes special circumstances? (at [7-514] below) as to the factors that may be relevant in a particular case. An offender’s legal representative is expected to make submissions addressing factors which may warrant a finding of special circumstances and particularly what is an appropriate period of supervision on parole for the offender: Edwards v R [2009] NSWCCA 199 at [11]; Jinnette v R [2012] NSWCCA 217 at [96].

If there are circumstances that are capable of constituting special circumstances, the court is not obliged to vary the statutory ratio. Before a variation is made “it is necessary that the circumstances be sufficiently special”: R v Fidow [2004] NSWCCA 172 at [22]; Langbein v R [2013] NSWCCA 88 at [54]. The decision is — first, one of fact, to identify the circumstances, and secondly, one of judgment — to decide whether the circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson (2001) 53 NSWLR 704 at [73]; Fitzpatrick v R [2010] NSWCCA 26 at [36].

A finding of special circumstances is a discretionary finding of fact: R v El-Hayek [2004] NSWCCA 25 at [103]; Caristo v R [2011] NSWCCA 7 at [28].

A finding of special circumstances permits an adjustment downwards of the non-parole period, but it does not authorise an increase in the term of the sentence: R v Tobar [2004] NSWCCA 391 at [36]–[37]; R v Huynh [2005] NSWCCA 220 at [35]–[39]; Markham v R [2007] NSWCCA 295 at [29]. As with the statutory predecessor (s 5(2) Sentencing Act 1989 (rep)), ss 44(2) and 44(2A) should not be understood as statutory norms (75% or 3:1) in the sense that variation in either direction, up or down, absent special circumstances is contrary to law: R v GDR (1994) 35 NSWLR 376 at 380. The extent of the adjustment is not determined by any “norm” and the court is to be guided by general sentencing principles: Caristo v R at [28].

In setting an effective non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole periods have to the total term. In Caristo v R, RA Hulme J said at [42]: “The actual periods involved are equally, and probably more, important.”

When a court decides to reduce the non-parole period because of a finding of special circumstances, double counting matters already taken into account in calculating the head sentence should be avoided: R v Fidow at [18]; Trindall v R [2013] NSWCCA 229 at [17]; Langbein v R at [54]; Ho v R [2013] NSWCCA 174 at [33].

The degree or “extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge’s discretion”: Clarke v R [2009] NSWCCA 49 at [13]; R v Cramp [2004] NSWCCA 264 at [31]) including consideration of those circumstances which concern the nature and purpose of parole: R v GDR at 381.

Although the desirability of an offender undergoing suitable rehabilitative treatment is capable of being a special circumstance, where special circumstances are found on this basis, it is an error for a court to refrain from adjusting the sentence based on a view that the offender would benefit from treatment while in full-time custody: Muldrock v The Queen (2011) 244 CLR 120 at [57]–[58]. This is because full-time custody is punitive and treatment in prison is a matter in the executive’s discretion. Also, an offender may not qualify for a program in custody or it may not be available: Muldrock v The Queen at [57].

A court can have regard to the practical limit of 3 years on parole supervision which an offender may receive under cl 214A Crimes (Administration of Sentences) Regulation 2014. With regard to the operation of cl 228 Crimes (Administration of Sentences) Regulation 2008 (rep), which was in similar terms to cl 214A, see the discussion in: AM v R [2012] NSWCCA 203 at [90]; Collier v R [2012] NSWCCA 213 at [37]; Jinnette v R at [107]. However, cl 214A provides in the case of a “serious offender” (defined in s 3(1) Crimes (Administration of Sentences) Act 1999) that the period of supervision may be extended by, or a further period of supervision imposed of, up to 3 years at a time.

A purported failure to adjust a sentence for special circumstances raises so many matters of a discretionary character that the Court of Criminal Appeal has been reluctant to intervene. The court will only intervene if the non-parole period is manifestly inadequate or manifestly excessive: R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow at [19]; Jiang v R [2010] NSWCCA 277 at [83]. Ultimately the non-parole period that is set is what the court concludes, in all of the circumstances, ought to be the minimum period of incarceration: Muldrock v The Queen at [57]; R v Simpson at [59].

The full range of subjective considerations is capable of warranting a finding of special circumstances: R v Simpson (2001) 53 NSWLR 704 at [46], [60]. It will be comparatively rare for an issue to be incapable, as a matter of law, of ever constituting a “special circumstance”: R v Simpson at [60]. Findings of special circumstances have become so common that it appears likely that there can be nothing “special” about many cases in which the finding is made: R v Fidow [2004] NSWCCA 172 at [20].

Where a finding of special circumstances is expressed for an individual sentence or individual sentences, the ultimate sentence imposed should usually give effect to that finding unless there are express reasons for not doing so.

The Crimes (Sentencing Procedure) Act 1999 contains no express requirement for a judge to apply the statutory ratio to an effective or overall sentence, but s 44(2) has been found to apply in that situation and also where a sentence is accumulated on an existing sentence: Lonsdale v R [2020] NSWCCA 267 at [65]; GP v R [2017] NSWCCA 200 at [16]; Harris v R [2023] NSWCCA 44 at [19], [30]; Rizk v R [2020] NSWCCA 291 (which also considers s 44(2B)).

While s 44(2) does not directly require a judge to give reasons for setting a non-parole period exceeding 75% of the total or effective sentence, it is advisable to do so: Lonsdale v R at [31]; [65]; GP v R at [22]; CM v R [2013] NSWCCA 341 at [39]. However, this does not require the performance of a mathematical calculation to the determination of the proportion of the non-parole period to a total term where a particular sentence is accumulated on an existing sentence: Lonsdale v R at [32]; Zreika v R [2020] NSWCCA 345 at [26].

On appeal, determining whether the lack of adjustment of the statutory ratio reflected in the overall term is intentional or the result of inadvertence or miscalculation often depends on what can be gleaned of the judge’s intention from the sentencing remarks: CM v R at [40]; Maglis v R at [24]; Harris v R [2023] NSWCCA 44 at [19]. In CM v R there was nothing to indicate that the judge was aware of, or intended, the final result and so the ground that the judge failed to give practical effect to the finding of special circumstances in the total effective sentence was upheld: CM v R at [42]. In AB v R [2014] NSWCCA 31, even though the judge’s finding of special circumstances was not reflected in the overall sentence, the final result was what the judge intended and there was no inadvertence or miscalculation: at [54], [57]; see also Sampson v R [2023] NSWCCA 239 at [6]–[13]. Similarly, in Rizk v R at [143], [146] and Lonsdale v R at [39], the particular sentencing judges did not err by not giving express reasons for imposing an effective non-parole period that exceeded 75%, to a modest degree.

On the other hand, the court found error in Sabongi v R [2015] NSWCCA 25, where the sentencing judge failed to give effect to an intention to vary the overall ratio to take account of the applicant’s mental condition, the need for rehabilitation and supervision, and the accumulation of sentences. See also Woods v R [2020] NSWCCA 219 at [71], [73].

The focus of the inquiry should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important: Woods v R at [62]; MD v R [2015] NSWCCA 37 at [41]; Caristo v R [2011] NSWCCA 7 at [42]. Care may be required when an applicant is sentenced in NSW while serving a sentence in another State where the statutory ratio of non-parole period to sentence may vary: see, for example, Ozan v R [2021] NSWCCA 231.

The Sentencing calculator on JIRS may assist when considering the requirements of s 44.

A 2013 study by the Judicial Commission examined sentencing cases finalised in the NSW District and Supreme Courts for the period 1 January 2005 to 30 June 2012: P Poletti and H Donnelly, “Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999”, Sentencing Trends & Issues, No 42, Judicial Commission of NSW, 2013.

An analysis of the sentencing statutes of other Australian jurisdictions revealed that NSW is one of few jurisdictions with a statutory rule which constrains a court’s discretion when it sets a non-parole period. Further, the ratio set in s 44(2) and s 44(2A) Crimes (Sentencing Procedure) Act 1999 is comparatively high.

Special circumstances were found in the vast majority of cases (91.4%) and was found more frequently for the youngest offenders (98.8% for juveniles and 96.8% for offenders aged 18–20 years) and for the oldest offenders (100% for offenders aged over 70 years and 98.0% for offenders aged 66–70 years).

A random sample of 159 judgments was examined. The most common reasons for finding special circumstances was the offender’s need for a lengthy period of supervision in the community after release (66.7%), followed by the lack of a prior criminal record (35.8%). These common reasons mostly referred to the offender serving their first prison sentence. Other common reasons include good prospects of rehabilitation (29.6%), age of the offender — particularly youth (25.8%), the effect of accumulation (23.3%) and hardship of custody (10.1%). The reasons given should not be viewed in isolation as there is a clear interrelationship between the different reasons.

The study (see table 3 in the study) analysed mean ratios for the basic and aggravated forms of robbery, break and enter, sexual assault and the supply of a prohibited drug. Subject to one (explicable) exception, the authors found that the longer the sentence and the more serious the crime, the lower the frequency of finding special circumstances. This is because for longer sentences the period of supervision was considered sufficient without a finding of special circumstances. More serious offences (such as murder and aggravated sexual assault in company) recorded the lowest frequency of special circumstances, which was unsurprising given the longer duration of their sentences and the limited utility of an extended period of supervision.

Section s 45(1) Crimes (Sentencing Procedure) Act 1999 provides:

Section 45(1A) permits a court to decline to set a non-parole period (ie, impose a fixed term) for an offence to which a standard non-parole period applies. Section 45(1A) does not apply to sentencing for an offence dealt with summarily or if the offender is under 18 years of age: s 45(1B).

Where the court declines to set a non-parole period, it must make a record of its reasons for declining to do so: s 45(2). R v Parsons [2002] NSWCCA 296 and Collier v R [2012] NSWCCA 213 at [55] are examples of cases where the sentencing judge erred by not fixing a non-parole period and not giving reasons as to why he declined to do so. The discretion in s 45(1), construed literally, is simply a discretion to decline to set a non-parole period: Collier v R at [58]. However, the weight of authority (both in relation to s 45(1) and its statutory predecessor under s 6 Sentencing Act 1989) supports the view that where a fixed term is imposed it should be set at an equivalent level, or equate to, what the non-parole period would have been: Collier v R at [56]–[58], citing R v Dunn [2004] NSWCCA 346 at [161]. The question whether s 45(1) also permits a court to impose a fixed term to reduce an otherwise appropriate sentence may be a future topic for resolution: Collier v R at [62]; see further below.

When sentencing an offender for multiple offences and where some accumulation is appropriate (assuming the aggregate sentence provision is not utilised), it is acceptable to impose fixed terms of imprisonment for some or most of the sentences. This is because, if a sentence containing a non-parole period and a parole period were set for each offence, the parole terms of many of these sentences would be subsumed in the non-parole period or fixed term of some longer sentence(s): R v Dunn at [161]. The judge in R v Burgess [2005] NSWCCA 52 decided that parole supervision would not be of any benefit to the offenders and imposed a fixed term under s 45(1): at [45].

For further discussion see Concurrent and consecutive sentences at [8-200]ff.

Section 46 Crimes (Sentencing Procedure) Act 1999 provides that a court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less. Section 46(1) does not apply if a court imposes an aggregate sentence of imprisonment in respect of two or more offences of more than six months, even if the individual sentences the court would have imposed would have been less than six months (as referred to in s 53A(2)(b)): s 46(2).

If the court decides to set a term of imprisonment of 6 months or less, then it must make a record of its reasons for doing so, including its reasons for deciding: that no penalty other than imprisonment is appropriate; and not to allow the offender to participate in an intervention program or other program for treatment and rehabilitation: s 5(2) Crimes (Sentencing Procedure) Act.

The law relating to commencement of sentence is set out in s 47 Crimes (Sentencing Procedure) Act 1999. In summary, every sentence or aggregate sentence passed takes effect from the time it is passed, unless the court otherwise directs. Thus, if the sentencer does not specify the date for commencement, it will be deemed to commence on the day on which the sentence or aggregate sentence was imposed. This section confers power to direct that a sentence may commence upon any determinate date either subsequent or prior to the time when it was imposed. Subject to a statutory provision(s) to the contrary, a sentence of imprisonment runs from the date it is imposed: Whan v McConaghy (1984) 153 CLR 631 at 636; R v Hall [2004] NSWCCA 127 at [28]; Kaderavek v R [2018] NSWCCA 92 at [19]. If the sentence commences before the date the sentence is imposed, s 47 provides no guidance except that the sentencing judge “must take into account any time for which the offender has been held in custody in relation to the offence”. If the sentence commences after that date, there is less flexibility as a result of s 47(4) and s 47(5): Kaderavek v R at [19].

On the issues of:

The court in Rios v R [2012] NSWCCA 8 raised the issue of rounding and whether a sentence should be expressed in terms of years, months and days, as opposed to just years and months. Adamson J said at [43] with reference to Ruano v R [2011] NSWCCA 149 at [20] that expressing a sentence with days “… ought be discouraged because it adds an unnecessary complication in the sentencing process”. In appropriate cases an adjustment should be made by rounding the number of days down to a number of months: Rios v R at [43].

Section 47(2)(b) Crimes (Sentencing Procedure) Act 1999 provides that a court may direct that a sentence of imprisonment commences “on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment”.

Section 47(5) provides that a direction under s 47(2)(b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:

Section 47(5) governs a specific scenario where the offender is still in custody under what is described as the “other sentence”. It is a statutory rule as to when the second sentence must commence where the statutory criteria are met. If the criteria in s 47(5) apply, the court does not have the power to impose a sentence in the terms of s 47(2)(b) “on a day occurring after the day on which the sentence is imposed”: Thompson-Davis v R [2013] NSWCCA 75 at [52].

Section 47(5) focuses on the expiration of the non-parole period of the “other sentence” set by the first court and does not distinguish between the scenarios where the offender is in custody, parole not having been granted, or in custody following the grant of parole and its subsequent revocation: White v R [2016] NSWCCA 190 at [7], [118]–[119]. Therefore, a sentence of imprisonment may not be post-dated later than the earliest date on which the offender will become entitled or eligible to release on parole for the first sentence: White v R at [118]. Basten JA dissented in White v R at [27] on the basis that the:

Where an offender is bail refused for an offence and subject to a statutory parole order pursuant to s 158 Crimes (Administration of Sentences) Act 1999 for a pre-existing sentence, the subject sentence should commence when the non-parole period for the pre-existing sentence expires: Kaderavek v R [2018] NSWCCA 92 at [17]–[22].

Section 48(1) Crimes (Sentencing Procedure) Act 1999 provides:

The three examples given in the Note to s 48(1) are not within the terms of the statute: R v Kay [2000] NSWSC 716. Hulme J said at [128] (affirmed in R v Nilsson [2005] NSWCCA 34):

In Farkas v R [2014] NSWCCA 141, there was a division of opinion as to the appropriate eligibility date of parole. Campbell J at [103] (with whom RA Hulme J agreed at [40]) amended the proposed sentencing orders of Basten JA at [2] so that the applicant’s eligibility for parole fell one day later. Basten JA considered the operation of ss 47 and 48 of the Act, and stated that the parole date which should be specified is that of the day prior to the anniversary of commencement of the sentence: Farkas v R at [29]. His Honour held that there is an inconsistency between the examples set out in the note to s 48 (which assume that the person becomes eligible to be released on parole on the day before the anniversary of the commencement of the sentence) and the language of s 47(6) (“ends at the end of the day on which it expires”). Basten JA opined at [29] that the inconsistency should be resolved by following the approach adopted in the note to s 48 which is consistent with the conventional approach taken in Ingham v R [2014] NSWCCA 123, but see R v Nilsson [2005] NSWCCA 34 at [24], [27]–[29]. While Campbell J or RA Hulme J altered the sentencing orders, neither expressly addressed the operation of s 48.

In R v BA [2014] NSWCCA 148, the court made observations concerning the appropriate date which should be recorded in a parole order. McCallum J stated that the clear effect of s 47(4) is that the Act assumes sentences begin and end at midnight, and it is therefore not inconsistent with the Act to order a person’s release on the last day of the non-parole period. However, such an order could give rise to a technical difficulty in entering the terms of the order into the court’s computerised record system: at [19].

Section 49(1) Crimes (Sentencing Procedure) Act 1999 provides:

Section 49(2), which relates to aggregate sentences, is discussed above at [7-505].

Where a non-parole period has been specified for a sentence of 3 years or less, the court must not make an order directing the release of the offender. Section 50 Crimes (Sentencing Procedure) Act 1999, which previously required a court to make such an order, was repealed on 26 February 2018: Parole Legislation Amendment Act 2017, Sch 3.2. However, a court must still comply with s 48(1) Crimes (Sentencing Procedure) Act by nominating when the sentence commences and, when it appears to the court, the offender will be eligible for release: see [7-550] Information about release date.

Section 158 Crimes (Administration of Sentences) Act 1999 states that if a non-parole period has been specified for a sentence of 3 years or less, the offender is taken to be subject to a “statutory parole order”, a parole order directing their release at the end of the non-parole period: s 158(1).

Whenever a court imposes a sentence of imprisonment for a term greater than 3 years, release on parole and the terms of the parole order are matters solely for the Parole Authority: Muldrock v The Queen (2011) 244 CLR 120 at [4]. If the court makes a parole order with conditions in circumstances where it does not have the power to do so “it has no effect”: Moss v R [2011] NSWCCA 86 per Simpson J at [28].

Sections 126 and 158 Crimes (Administration of Sentences) Act are relevant. Section 158(2) provides that a statutory parole order in relation to a sentence is conditional on the offender being eligible for release on parole in accordance with s 126 Crimes (Administration of Sentences) Act at the end of the non-parole period of the sentence. Section 158(3) provides that if the offender is not eligible for release at that time, they are entitled to be released on parole as soon as they become so eligible. Section 158(4) provides that:

Section 126 is entitled: “Eligibility for release on parole” and s 126(1) provides that: “Offenders may be released on parole in accordance with this Part”. Section 126(2) provides:

Following the repeal of ss 51 and 51A Crimes (Sentencing Procedure) Act 1999 on 26 February 2018, the court has no power to impose parole conditions, including conditions as to non-association and place restriction: Sch 3.2[2]–[3] Parole Legislation Amendment Act 2017.

As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre: Crimes (Sentencing Procedure) Act 1999, s 62(1). The warrant must be in the approved form: Crimes (Sentencing Procedure) Regulation 2017, cl 7. Section 62 does not apply to imprisonment the subject of an intensive correction order: s 62(4)(b).

Part 4 Div 1 Crimes (Sentencing Procedure) Act 1999 does not apply to offenders sentenced to life (or for any other indeterminate period), or to imprisonment under the Fines Act 1996, the Habitual Criminals Act 1957, or to detention under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: s 54 Crimes (Sentencing Procedure) Act.