Application of the Act

[2-000] Short statutory history

The Crimes (Sentencing Procedure) Act 1999 (the Act) implemented a number of significant changes that were recommended by the NSW Law Reform Commission in its report on sentencing: Sentencing, Report 79, Sydney, 1996.

When it was introduced, the principal objective of the Act was to rationalise and consolidate sentencing law. The Sentencing Act 1989, the Community Service Orders Act 1979, the Periodic Detention of Prisoners Act 1981 and the Home Detention Act 1996 were repealed, and their contents amalgamated with sentencing provisions previously contained in the Crimes Act 1900, the Criminal Procedure Act 1986 and the (since repealed) Justices Act 1902. But as Spigelman CJ remarked in R v Carrion (2000) 49 NSWLR 149 at [15], the Act “… is in large measure a consolidating Act, but it is not only a consolidating Act”.

While the Crimes (Sentencing Procedure) Act preserved several features of the common law, it also introduced several reforms. Some of the key reforms introduced were to:

  • Require the court firstly to set the term of the sentence to be imposed and then to set a non-parole period, pursuant to s 44. (This was later amended in 2002, to require the court firstly to set the non-parole period and then the balance of the term).

  • Re-introduce suspended sentences as a sentencing option under s 12. (These were later abolished in 24 September 2018. Existing s 12 bonds cease to have effect 3 years from the date of abolition.)

  • Require a court which imposes a sentence of less than six months imprisonment to give reasons why the court is of the view that no penalty other than imprisonment is appropriate: s 5(2).

  • Modify some sentencing terminology, such as replacing “recognisance” with “good behaviour bond”, and replacing “cumulative sentences” with “consecutive sentences”. (Good behaviour bonds were later replaced in 2018 with conditional release orders.)

  • Create a statutory version of the common law “Griffiths remand”, which involves deferring sentence and granting bail while rehabilitation or assessment is undertaken: s 11.

  • Expand the guideline sentencing provisions, so as to allow the Attorney General to apply for a guideline judgment for summary offences, and to formally authorise the Director of Public Prosecutions to intervene in proceedings following a guideline application.

Since its introduction the Act has been repeatedly amended. The notable amendments to date include the insertion of s 21A (aggravating, mitigating and other factors in sentencing) and Pt 4 Div 1A (standard non-parole periods).

[2-010] Primacy of the Act

The primacy of the Crimes (Sentencing Procedure) Act 1999 in sentencing law has been recognised by the Court of Criminal Appeal as:

… provid[ing] the framework upon which a court determines the sentence to be imposed upon a particular offender for any offence. The Act provides the sentencing practice, principles and penalty options that operate in all courts exercising State jurisdiction. There are also the sentencing principles and practices derived from the common law and that have been preserved by the provisions of the Act.: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305 per Howie J at [45].