Criminal Procedure in NSW

How Sentencing Submissions Are Structured

Sentencing submissions represent the final opportunity for defence to influence outcome. This guide explains the structure, legal framework, and advocacy strategies employed by experienced criminal defence practitioners in NSW courts.

The Legal Framework for Sentencing

Sentencing in NSW is governed primarily by the Crimes (Sentencing Procedure) Act 1999(NSW) and the common law. The Act prescribes the purposes of sentencing, the factors courts must consider, and the available sentencing options.

Purposes of Sentencing: Section 3A

Section 3A of the Act sets out the purposes for which a court may impose a sentence:

To ensure the offender is adequately punished
To prevent crime by deterring the offender and others
To protect the community
To promote rehabilitation of the offender
To make the offender accountable for their actions
To denounce the conduct of the offender
To recognise harm done to the victim and community

The weight given to each purpose varies according to the offence, offender circumstances, and applicable sentencing principles. Defence submissions address how these purposes can be achieved through less punitive sentencing options.

Aggravating and Mitigating Factors

Section 21A of the Act sets out factors the court must take into account, divided into aggravating factors (which increase seriousness) and mitigating factors (which reduce culpability or justify leniency).

Common Aggravating Factors

Offence involved actual or threatened violence
Offence committed in company
Victim was vulnerable (age, disability, occupation)
Offence was planned or premeditated
Offence committed while on bail or conditional liberty
Offender has relevant prior convictions
Offender was in position of trust
Substantial harm caused to victim

Common Mitigating Factors

No prior convictions or good character
Early guilty plea
Remorse shown by the offender
Offender was provoked
Offender acted under duress
Mental health condition contributed to offending
Offender unlikely to reoffend
Good prospects of rehabilitation

Matters That Cannot Be Taken Into Account

Section 21A(5A) prevents the court from treating certain matters as mitigating, including self-induced intoxication by drugs or alcohol. Defence submissions must work within these statutory limitations while maximising available mitigating factors.

Structure of Effective Defence Submissions

CORE Defence Lawyers structures sentencing submissions to systematically address the matters the court must consider, while presenting the client's circumstances in the most favourable light permissible.

CORE Defence Sentencing Submission Framework

1
Objective Seriousness
Address where the offence falls on the spectrum of seriousness for this type of offending. Reference comparable cases and sentencing statistics.
2
Aggravating Factors
Acknowledge applicable aggravating factors while contextualising their weight. Challenge prosecution assertions where evidence does not support aggravation.
3
Mitigating Factors
Present all available mitigating factors with supporting evidence. Character references, medical reports, and employment evidence should be tendered.
4
Subjective Circumstances
Personal history, family circumstances, employment, mental health, and other matters that explain (without excusing) the offending.
5
Sentencing Range
Propose an appropriate sentencing range with reference to comparable cases and the applicable maximum penalty.
6
Specific Order Sought
Clearly articulate the sentencing option sought (Section 10, CRO, CCO, fine, imprisonment) with reasons why it is appropriate.

Sentencing Options in NSW

The following sentencing options are available in NSW, listed from least to most severe. Defence submissions typically argue for the least restrictive option consistent with the purposes of sentencing.

Section 10(1)(a) - Dismissal

No Conviction

The court finds the offence proven but dismisses the charge without recording a conviction. The most favourable outcome available after a finding of guilt.

When appropriate: First offence, trivial conduct, strong subjective case, disproportionate consequences of conviction (employment, travel, reputation).

Section 10(1)(b) - Conditional Release

No Conviction

Conditional release on good behaviour bond for up to 2 years. Breach may result in re-sentencing for the original offence.

When appropriate: Good prospects of rehabilitation, benefit from supervision, appropriate where Section 10(1)(a) insufficient to mark seriousness.

Conditional Release Order (CRO)

Conviction Recorded

Conviction recorded but released on conditions for up to 2 years. Conditions may include supervision, community service, or program attendance.

When appropriate: Where conviction warranted but imprisonment disproportionate. Useful for offenders requiring rehabilitation support.

Community Correction Order (CCO)

Conviction Recorded

More intensive community-based order with mandatory conditions including supervision and at least one additional condition (community service, curfew, program, etc.).

When appropriate: More serious offending where imprisonment would otherwise be considered but community-based rehabilitation preferable.

Intensive Correction Order (ICO)

Conviction Recorded

A sentence of imprisonment of up to 2 years served in the community under intensive supervision. Includes home detention and electronic monitoring options.

When appropriate: Where imprisonment is warranted but can be served in the community without unacceptable risk.

Full-Time Imprisonment

Custodial

Sentence of imprisonment served in a correctional facility. May include non-parole period (minimum time before eligible for release) and parole period.

When imposed: Most serious offending where no alternative to imprisonment is appropriate in all the circumstances.

The Guilty Plea Discount

Section 22 of the Act requires the court to take into account a guilty plea when passing sentence. The discount reflects the utilitarian value of the plea (saving court resources, sparing witnesses) and may also indicate remorse.

Standard Discount Guidelines

Plea at earliest opportunity (first mention)Up to 25% discount

Plea at committal or case conference10-20% discount

Plea on day of hearing5-10% discount

Plea after trial commencedMinimal or no discount

The discount applies to the sentence that would otherwise have been imposed. Courts must indicate the sentence that would have been imposed without the plea, ensuring transparency in the discount applied.

Character Evidence and Supporting Material

Effective sentencing submissions are supported by documentary evidence establishing the client's character, circumstances, and rehabilitation potential.

Character References

Character references should come from persons who know the offender well and can speak to their good character, work ethic, community involvement, and the offence being out of character. Effective references:

Are addressed to "The Presiding Magistrate" or "The Presiding Judge"
Identify the referee's relationship to the offender and duration
Acknowledge awareness of the charges (without detailing them)
Speak to specific positive character traits with examples
Express genuine surprise at the offending
Offer ongoing support for rehabilitation

Medical and Psychological Reports

Where mental health, cognitive impairment, or substance abuse contributed to offending, expert reports assist the court to understand the nexus between condition and conduct. Reports should address diagnosis, how the condition contributed to offending, treatment undertaken, and prognosis.

Practitioner Note: Victim Impact Statements

Victims have the right to provide Victim Impact Statements under Part 3, Division 2 of the Act. Defence submissions must acknowledge harm caused while ensuring the court does not engage in impermissible double-counting where harm is already reflected in the offence elements or statutory aggravating factors.