1. What is a custodial sentence?
A custodial sentence is a judicial sentence that involves being imprisoned. Custodial sentencing is usually reserved for more serious crimes but each state has their own legislation, which governs which crimes are punishable by custodial sentencing.
The most well known custodial sentence is that of imprisonment in jail. Section 5 of theCrimes (Sentencing Procedure) Act 1999 (NSW) states that a court mustn’t sentence an offender to imprisonment unless all other possibilities have been considered and found inadequate.
It is often assumed that a custodial sentence refers specifically to the sentence of term of imprisonment in prison, however, it can refer to other kinds of imprisonment. Apart from imprisonment in prison, there are 3 different types of custodial sentences handed down in New South Wales.
Firstly, under the section 5A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Drug Court can make an order requiring the offender to serve their sentence via compulsory drug treatment detention. In order to be eligible for this type of custodial sentence, you must be considered an eligible convicted offender under Part 2A of the Drug Court Act 1998. Therefore, instead of serving their term in prison, the offender serves their sentence through rehabilitation in drug treatment detention.
Under section 6 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may make a home detention order. This is a different type of custodial sentence, whereby the offender serves their sentence in home detention. In these cases, the term of imprisonment is 18 month or less. There are several standard conditions, which must be abided by under a home detention order. These include residing at a specific location, abstaining from drugs and alcohol, only leaving your home as permitted by the order, consenting to searches of you property, ceasing interaction with certain people and agreeing to attend therapy or counselling.
The final type of custodial sentence available in New South Wales is an intensive correction order. This is covered by section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). An intensive correction order can be used for sentences of 2 years or less and allows the offender to serve out their sentence in the community. Under an intensive correction order, you must comply with several conditions. These can include conditions such as counselling, abstaining from alcohol and drugs, complying with a curfew and undertaking community service. However, with this type of sentence, a judge cannot set a parole period and the whole sentence must be completed.
Imprisonment in jail is the most serious punishment in Australia and as it involves the deprivation of a person’s liberty, the decision to imprison someone is not taken lightly. Although, the above alternatives to being imprisoned in prison are available, these penalties should be taken as seriously as a term in prison. You are expected to abide by all conditions of any court orders and should be aware that not doing so may result in imprisonment in jail.
2. Custodial sentences in Australia
When contemplating whether to hand down a custodial sentence, the court will follow a three stage process that was defined in the case of Douar  NSWCCA 455.
The first stage is to determine that no other punishment is an adequate apart from a sentence of imprisonment. This is defined in section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
If the court has determined that a custodial sentence is necessary, then the court will need to decide the duration of the sentence. When deciding on the duration, the court should not consider how the term will be served.
The third and final stage involves the court decide which alternative of custodial sentence they will hand down. This may include imprisonment in prison, home detention, intensive correction order or compulsory drug treatment detention.
3. Type of offences that have custodial sentences
As mentioned previously, in New South Wales, a custodial sentence is only handed down if all other alternatives have been considered and all alternatives were found to be inappropriate punishment for the crime committed.
In general, Australian laws stipulate a maximum custodial sentence rather than a minimum, however, there are particular offences where a minimum sentence is imposed. These minimum sentences are often referred to as mandatory sentences.
There are also certain crimes that result in mandatory custodial sentences. Under Commonwealth, there are two types of offences that involve mandatory sentences. These are aggravated offences of people smuggling in circumstances where the circumstances relate to exploitation. The offence holds a minimum sentence of 8 years. The other is the aggravated offences of people smuggling where circumstances relate to the smuggling of a group of at least 5 people. This holds a mandatory sentence of 5 years.
In New South Wales, there are several crimes, which hold mandatory minimum custodial sentences. There is a minimum life imprisonment sentence for the crime of murdering a police officer. There are some exemptions to this based on the murderer’s capacity. Capacity refers to aspects such as age and cognitive ability. There are also mandatory minimum sentences for what are commonly known as ‘coward’s punch’ or ‘one punch’ assaults involving serious alcohol or drug fuelled violent offences. For example, the offence of reckless grievous bodily harm- in company has a mandatory minimum of 5 years imprisonment. The offence of grievous bodily harm holds a minimum of 4 years imprisonment. Reckless wounding- in company also has a 4 year minimum sentence. While reckless wounding holds a 2 years minimum sentence. The offence of assaulting police and recklessly inflicting grievous bodily harm or wounding holds a mandatory minimum sentence of 5 years imprisonment.
There are many other offences that can result in custodial sentences but the above mentioned are the only ones that involve a mandatory term of imprisonment. Sexual offences, murder, manslaughter, armed robbery are other examples of offences are punishable by custodial sentencing.
4. Have you been accused of a crime that may result in a custodial sentence?
If you have been accused of a crime, which is punishable by a custodial sentence, then you should contact George Sten & Co Criminal Lawyers 02 9261 8640 as soon as possible. Our team of specialised criminal lawyers are experts in all areas of Criminal Law and can help you understand and protect your rights. We will work to achieve the best possible outcome in your case and will work towards avoiding a custodial sentence.