Whether you go to gaol (jail) depends on the offence, your circumstances and the court. In NSW, full-time imprisonment is a last resort. A court must not impose it unless it is satisfied that no other penalty is appropriate (Crimes (Sentencing Procedure) Act 1999 (NSW), s5). Several community-based and non-custodial options exist, and for many offences they are realistic outcomes.

If you have been charged and you are worried about prison, this page explains how sentencing works in NSW, the options a court can choose from, and where to get advice early.

How a NSW court decides whether to send you to prison

Before a court can impose full-time imprisonment, it has to clear a legal test often called the section 5 threshold:

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. (s5(1))

Sometimes the seriousness of the offence on its own meets that test. Other times it is the frequency of offending, or a breach of earlier court orders. The court also weighs the purposes of sentencing in s3A, which include punishing the offence, deterring further offending, protecting the community and supporting rehabilitation.

What this means in practice: prison is not automatic for most offences. The court has to actively consider the alternatives, and a well-prepared case puts those alternatives in front of it.

Your sentencing options in NSW

A court has a range of sentencing options. Some involve custody, some do not. Here is how they compare.

Option Custody? What it involves When it’s available
Full-time imprisonment Yes A sentence served in a correctional centre Last resort only, where no other penalty is appropriate (s5)
Intensive Correction Order (ICO) Yes (in the community) A prison sentence served in the community under supervision, with conditions such as community service, curfews, electronic monitoring or home detention Where the prison term is 2 years or less for a single offence (up to 3 years in aggregate); some offences are excluded (s7, s67)
Community Correction Order (CCO) No Conditions such as supervision, community service, curfews, place restrictions, or rehabilitation requirements Instead of prison, for offences too serious for a fine alone; up to 3 years (s8)
Conditional Release Order (CRO) No A bond to be of good behaviour, with or without a conviction recorded For less serious or first-time matters; up to 2 years (s9)

Custodial options

Full-time imprisonment (s5) The most serious outcome, and the one the law treats as a last resort. Where the court imposes a prison sentence of more than six months, it usually also sets a non-parole period (the minimum time before you can be considered for release on parole).

Intensive Correction Order (ICO), section 7 An ICO is a sentence of imprisonment that the court directs you to serve by intensive correction in the community rather than in a correctional centre. It is available where the term of imprisonment is two years or less for a single offence (and up to three years in aggregate for multiple offences). It usually carries strict conditions, such as supervision, community service, curfews or home detention. Certain offences cannot be dealt with by an ICO. For a single-offence matter, an ICO is a far better outcome than full-time custody.

Non-custodial options

Community Correction Order (CCO), section 8 Instead of imposing a sentence of imprisonment, a court that convicts you may make a CCO. It applies for up to three years and can include conditions such as supervision, community service, curfews, place restrictions, or rehabilitation and treatment requirements. A CCO is recorded against your record but keeps you out of custody.

Conditional Release Order (CRO), section 9 A CRO is the least serious order and can be made for up to two years. It can be imposed with a conviction recorded, or without one. In deciding whether to make a CRO with a conviction, the court considers your character and background (including any prior record), your age, health and mental condition; whether the offence is trivial; the circumstances of the offence; and any other relevant matter (s9(2)).

If the court decides not to record a conviction at all, that may be done by dismissing the charge under section 10, or by a CRO without conviction under s9(1)(b). These are the routes to walking away without a criminal record. Whether either is available depends entirely on the offence and your circumstances.

Domestic violence offences: a special rule

If you have been found guilty of a domestic violence offence, NSW law sets a stricter default. Under section 4A, the court must impose either full-time detention or a supervised order, unless it is satisfied that a different sentencing option is more appropriate in the circumstances and gives its reasons for that view.

If a court finds a person guilty of a domestic violence offence, the court must impose either a sentence of full-time detention or a supervised order. However, the court is not required to do so if satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for that view. (s4A, summarised)

In practical terms, this means a domestic violence matter starts from a tougher position than many other offences. Whether a different, less restrictive option is open depends on the facts, and the case for it has to be properly prepared and put to the court.

How Mr Godkin approaches sentencing

Mr Godkin is an experienced criminal barrister. He will give you clear, honest advice about the sentence you may be facing, explain each option open to the court, and set out the benefits and conditions of each.

Where a non-custodial sentence is realistically available, he prepares and presents that case to the court, supported by the relevant material such as character references, evidence of rehabilitation, and submissions on the section 5 threshold. The decision rests with the court, and the outcome depends on the offence, your history and your individual circumstances. What you control is how well that case is prepared and argued.

What happens at a sentencing hearing

Once you have pleaded guilty or been found guilty, the matter moves to sentencing. At the hearing, the prosecution sets out the facts of the offence and your prior record, if any. Your barrister then puts forward the material that supports a lesser penalty, such as character references, evidence of rehabilitation, and any relevant reports, and makes submissions on the appropriate sentence.

The magistrate (in the Local Court) or judge (in the District or Supreme Court) weighs that material against the section 5 threshold and the section 3A purposes, then either sentences you on the day or adjourns to consider the decision. Straightforward Local Court matters are often dealt with in a single short hearing. More serious matters can involve adjournments for reports and take longer to finalise.

Common mistakes before sentencing

  • Pleading guilty without first getting advice on the likely sentencing range
  • Turning up to sentencing without character references or evidence of rehabilitation
  • Assuming a first offence automatically means no conviction (it does not)
  • Leaving it too late to prepare, so material that could help is never put before the court
  • Representing yourself on a matter that carries a real risk of prison

Frequently asked questions

Will I definitely go to gaol for a domestic violence offence in NSW? Not necessarily. Section 4A sets a default of full-time detention or a supervised order for a domestic violence offence, but the court can impose a different option if satisfied it is more appropriate and gives reasons. Whether that is open depends on the facts and your circumstances.

What is the difference between an ICO and a CCO? An Intensive Correction Order (s7) is a prison sentence served in the community under strict conditions. A Community Correction Order (s8) is not a prison sentence at all; it is a community-based order with conditions such as supervision or community service.

Can I avoid a criminal record? In some cases, yes. A court may dismiss a charge under section 10, or make a Conditional Release Order without recording a conviction under s9(1)(b). Both are available only in limited circumstances and depend on the offence and your background.

Does the court have to send me to prison? No. A court must not impose full-time imprisonment unless satisfied that no other penalty is appropriate (s5). It is required to consider the alternatives first.

How long can a Community Correction Order last? Up to three years (s8).

Is an Intensive Correction Order the same as prison? Legally it is a sentence of imprisonment, but it is served in the community under supervision rather than in a correctional centre.

Do I need a barrister for a sentencing hearing? You can represent yourself, but sentencing is the stage where the outcome is decided, and how well the case is prepared and put to the court can affect the result. For any matter that carries a real risk of prison, it is sensible to get advice early.

How long does a sentencing hearing take? It depends on the court and the offence. A straightforward Local Court matter may be sentenced in a single short hearing, sometimes on the same day. Serious matters in the District or Supreme Court can involve adjournments for reports and may take weeks or months from plea to sentence.

When to speak with a barrister

Speak with a criminal barrister early if you have been charged with an offence that could carry a prison sentence, you are facing sentencing in the Local, District or Supreme Court, your matter is a domestic violence offence where section 4A applies, or you want a clear view of whether a non-custodial option is realistic in your case. The earlier advice is obtained, the more can be done to prepare.

Get advice on your sentencing options

If you are facing sentencing in NSW, Mr Godkin can explain your options and what they would mean for you.

Call to arrange a free first one-hour conference: 02 9235 3033.

This page is general information about NSW legal practice and is not legal advice. Every case is different. For advice about your matter, arrange a conference.