Published by Geoff Harrison | 15 March 2025
As per s5(1) of the Crimes (Sentencing Procedure) Act 1999, 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 (this is referred to as the s5 Threshold). If the court comes to the conclusion that no other alternative is available other than a sentence of imprisonment, the court then turns to the term of the sentence. Subject to the term of the sentence, the court then must consider whether the sentence can be served by an alternative to full-time imprisonment eg. an Intensive Corrections Order
Other Sources:
Cases:
R v Zamagias [2002] NSWCCA 17 ([25] - [26])
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 5 Penalties of imprisonment
Penalties of imprisonment
(1) 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.
(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including--
(a) its reasons for deciding that no penalty other than imprisonment is appropriate, and
(b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.
(5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.
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