Imprisonment (NSW)

There are numerous criminal offences in New South Wales that can lead to a sentence of imprisonment. However, imprisonment is a last resort sentencing option and the majority of offences do not lead to custodial sentences. This article outlines the law surrounding imprisonment in New South Wales and some of the procedures that can lead to a person being imprisoned and released from prison.

Remand

When a person charged with criminal offences in New South Wales is refused bail by the police or by a court, they will be held in custody until they are granted bail by a court or until their matter is finalised. Prisoners who are refused bail and are pleading not guilty often spend a significant period of time on remand. If a person is found guilty of offences and sentenced to imprisonment, any time they have spent in custody on remand will be taken into account when they are sentenced.

Sentences of imprisonment

The criminal law of New South Wales is governed primarily by the Crimes Act 1900 (NSW). This Act works in conjunction with commonwealth legislation, such as the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). A person in New South Wales can also be imprisoned under other legislation containing offences, such as the Drugs Misuse and Trafficking Act 1985 (NSW), the Weapons, the Weapons Prohibition Act 1998 and the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Serious indictable offences are offences that must be finalised in the District Court or the Supreme Court and which carry maximum penalties of lengthy periods in prison. For example, the maximum penalty for robbery is 14 years imprisonment. The maximum penalty for murder, drug trafficking and aggravated sexual assault is imprisonment for life. Unless a non-parole period is set, a person sentenced to imprisonment for life will spend the rest of their natural life in prison.

Summary offences are offences that are heard in the lower court (Local Court). Some summary offences carry maximum penalties of imprisonment. However, the longest prison sentence a magistrate can impose for a single offence is two years. This is known as a jurisdictional limit.

How does a court decide on the length of a term of imprisonment?

In arriving at the appropriate sentence in a matter, a court must consider the circumstances of the offending and the circumstances of the offender and apply sentencing principles.

The Crimes (Sentencing Procedure) Act 1999 lists the factors that the court must take into account. These include:

• Whether there were aggravating or mitigating factors which led to the offender’s criminal actions;
• How old the offender is;
• The offender’s mental state at the time they committed the offence;
• Whether they have shown any genuine remorse; and
• Whether they have any prior criminal history.

Will there be a conviction?

When a court sentences a person to imprisonment a conviction is always recorded.

Parole

Parole is the release of a person from prison to serve the remainder of their sentence while living in the community. The idea behind parole is that an offender can be reintegrated into the community while being closely supervised by the Department of Corrections. A person who has been released on parole is still serving their prison sentence.

In New South Wales, when a prisoner has become eligible for parole, they can apply to the State Parole Authority to be considered for release on parole. If a prisoner breaches the conditions of their parole, the State Parole Authority can revoke their parole, meaning they will have to return to prison to serve the rest of their sentence.

New South Wales prisons

There are currently 27 operational adult prisons in New South Wales, with the most recently opened facility being the  Clarence correctional centre (CCC) in Grafton, which opened in 2020. CCC is a medium-security prison for men and women, has the capacity to house 1700 inmates and is set to become Australia’s largest prison. It is operated by the company Serco, under a public-private partnership.

New South Wales also has six Youth Justice Centres, which house juveniles aged between 10 and 17, who have been sentenced to detention or refused bail.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.