Sentencing and punishment: purposes, guidelines, penalties and alternative sentencing: HSC Legal Studies

What this dot point is asking

Sentencing is the stage at which the court decides the punishment for a person who has pleaded guilty or been found guilty. The syllabus lists statutory and judicial guidelines, the purposes of punishment, factors affecting a sentencing decision (aggravating and mitigating circumstances), the role of the victim, appeals, types of penalties, and alternative methods of sentencing including circle sentencing and restorative justice. You must be able to discuss the factors that affect sentencing, evaluate the effectiveness of different types of penalties, including diversionary programs, and assess the roles of alternative methods of sentencing. Post-sentencing considerations have their own page.

Sentencing appeared in the 2024 Section II Part B question (justice for adult offenders) and in three 2025 multiple-choice questions (restorative justice, forfeiture of assets, parole).

The answer

Statutory and judicial guidelines

Judges have discretion in sentencing, but it is structured by statute and by appellate guidance.

Statutory guidelines.

• Maximum penalties in each offence provision set the ceiling (for example 25 years for manslaughter, life for murder). The maximum is reserved for the worst category of case.
• Section 5: a court must not sentence a person to imprisonment unless satisfied that no penalty other than imprisonment is appropriate.
• Standard non-parole periods (Division 1A, ss 54A to 54D) list a reference non-parole period for serious offences, such as 20 years for murder. In Muldrock v The Queen [2011] HCA 39 the High Court held the standard non-parole period is a guidepost to be taken into account, not a mandatory starting point.
• Mandatory minimums are rare in NSW. Assault causing death while intoxicated carries a mandatory minimum of 8 years (Crimes Act 1900 (NSW) s 25B), and the Commonwealth introduced mandatory minimums for some terrorism and hate symbol offences in 2025.
• Guilty plea discounts are fixed for indictable offences (s 25D), and discounts are available for assistance to authorities (s 23).

Judicial guidelines.

• Guideline judgments. The Court of Criminal Appeal can give guidance for a class of offence (s 37). Examples: R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 on dangerous driving causing death or grievous bodily harm, and R v Henry (1999) 46 NSWLR 346 on armed robbery.
• Sentencing principles. Proportionality (the sentence must not exceed what is proportionate to the offence: Veen v The Queen (No 2) (1988) 164 CLR 465), totality (the overall sentence for several offences must reflect the total criminality: Mill v The Queen (1988) 166 CLR 59), parity between co-offenders, and "instinctive synthesis" (Markarian v The Queen (2005) 228 CLR 357).
• Sentencing statistics. The Judicial Commission of NSW's Sentencing Information System helps judges see sentencing patterns.

The purposes of punishment

The syllabus names four purposes; s 3A of the Crimes (Sentencing Procedure) Act lists seven.

The purposes often conflict. For a young first offender, rehabilitation may dominate; for a serious violent offender, denunciation and protection may dominate. The judge weighs them through instinctive synthesis.

Factors affecting a sentencing decision

Section 21A lists aggravating factors (use of a weapon, actual or threatened violence, gratuitous cruelty, a vulnerable victim, offending in company, in the presence of a child, in the victim's home, abuse of a position of trust, planning, a record of previous convictions) and mitigating factors (no prior record, good character, provocation, remorse, youth, mental condition, good prospects of rehabilitation, a guilty plea, assistance to authorities).

The High Court in Bugmy v The Queen [2013] HCA 37 held that an offender's background of profound deprivation (such as childhood exposure to violence and alcohol abuse) can reduce moral culpability, that its effect does not diminish with time, but that there is no automatic discount simply because an offender is Aboriginal. This case matters for evaluating sentencing and Aboriginal over-representation.

The role of the victim in sentencing

Victims have a limited but important role. A primary victim, or a family member where the victim died, may give a victim impact statement describing the harm the offence caused (Part 3 Division 2 of the Act). Victims can read it aloud in court, and since 2014 a court may take a family victim impact statement into account when sentencing for an offence that caused death. The Charter of Victims Rights (Victims Rights and Support Act 2013 (NSW)) also entitles victims to information about the case, to be consulted about charge negotiation and to be told about parole. Victims do not decide the sentence, which protects consistency and the offender's right to a sentence based on the facts, but many victims feel their voice is not reflected in outcomes.

Appeals

The offender can appeal against the severity of a sentence, and the Crown can appeal against the inadequacy of a sentence (Criminal Appeal Act 1912 (NSW) s 5D). Appeals from the Local Court go to the District Court; appeals from the District and Supreme Courts go to the Court of Criminal Appeal. Crown appeals correct sentences that are manifestly inadequate and maintain consistency; for example, after the one-punch death of Thomas Kelly, the Court of Criminal Appeal increased Kieran Loveridge's sentence in 2014.

Appeals also show the limits of public expectations. Former police officer Kristian White was convicted of manslaughter over the 2023 tasering of 95-year-old Clare Nowland in a Cooma aged care home and was sentenced in 2025 to a two-year Community Correction Order with community service. In July 2025 the Court of Criminal Appeal unanimously dismissed the Crown appeal arguing the sentence was manifestly inadequate (R v White [2025] NSWCCA 111).

Types of penalties

The syllabus lists penalties from the 2009 syllabus. Several no longer exist in NSW after the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, which commenced on 24 September 2018. Know the current options and what replaced the old ones.

Evaluating penalties.

• Imprisonment incapacitates and denounces but has poor rehabilitation outcomes. The Productivity Commission's Report on Government Services 2026 reported that 44.5% of prisoners released nationally in 2022 to 2023 returned to prison within two years. Prison is also expensive and falls disproportionately on Aboriginal people.
• Community-based orders keep offenders in work and family and allow supervision and treatment, which is why the 2018 reforms aimed to increase supervised community orders, especially for domestic violence offenders.
• Fines are efficient but hit poor offenders harder, and unpaid fines can lead to licence suspension and further offending (driving while suspended).
• Forfeiture of assets removes the profit from crime and funds from organised crime, but its deterrent effect is uncertain, which was the point of the 2025 HSC multiple-choice question.
• Diversionary programs such as the Drug Court address the causes of offending; they are resource intensive and available only to eligible offenders in some locations.

Alternative methods of sentencing

Circle sentencing

Operating in NSW Local Courts since 2002 (first at Nowra), circle sentencing allows an Aboriginal offender who has pleaded or been found guilty to be sentenced by a magistrate sitting in a circle with Aboriginal Elders or respected persons, the offender, the victim and their supporters. The Elders speak to the offender about the harm caused and help decide a culturally appropriate sentence. A 2020 BOCSAR evaluation (Crime and Justice Bulletin 226) found that participants were 9.3 percentage points less likely to receive a prison sentence and 3.9 percentage points less likely to reoffend within 12 months than comparable Aboriginal offenders sentenced in the usual way.

The Walama List

The District Court began the Walama List pilot on 31 January 2022 at the Downing Centre for eligible Aboriginal and Torres Strait Islander offenders. It brings Aboriginal cultural knowledge, Elders and therapeutic support into sentencing for more serious offences. "Walama" is a Dharug word meaning "come back" or "return".

Restorative justice

Restorative justice brings the offender and victim together to discuss the harm and how to repair it. In NSW it is most developed for young people through youth justice conferences under the Young Offenders Act 1997 (NSW), and adult victim-offender conferencing is available through Victims Services after sentence. It can give victims answers and an apology and help offenders understand consequences, but it depends on the victim's willingness and is not suitable for every offence, particularly domestic and sexual violence, where power imbalances make face-to-face meetings risky.

Assessing alternative methods

Alternatives are effective for rehabilitation and for victims who want to participate, and they improve the legitimacy of the system for Aboriginal communities. Their limits are eligibility restrictions, availability outside major centres and funding, and criticism that they are "soft" when used for serious offences.

In one sentence

NSW sentencing combines statutory purposes, factors and reference points with judicial guideline judgments and appeals to produce individualised, proportionate sentences from a reformed menu of community orders and imprisonment, while alternatives such as circle sentencing and restorative justice show measurable promise.

Try this

Q1. Outline TWO purposes of punishment. (3 marks)

• What the marker wants. Two accurately defined purposes from s 3A or the syllabus, with an example of how each shapes a sentence.

Q2. Assess the role of circle sentencing in achieving justice. (6 marks)

• What the marker wants. How it works, BOCSAR 2020 findings, benefits for offenders, victims and communities, and limits (eligibility, availability).

Q3. Evaluate the effectiveness of sentencing and punishment as a means of achieving justice. (15 marks)

• What the marker wants. A sustained judgement using statutory and judicial guidelines, penalties, the victim's role, appeals and alternatives, with current data.