Sentencing Options for Sexual Based Offences

Sexual-based offending is widely treated by the Courts as some of the most serious offences in New South Wales. This is reflected in the sentencing options, maximum penalties and Standard Non-Parole Periods available to Courts when dealing with those convicted of sexual based offences. 

Standard Non-Parole Periods

One notable feature of sentencing sexual based offences has been the creation of Standard Non-Parole Periods for certain sexual offences. A non-parole period can be termed as the minimum period of time to be spent in full-time imprisonment following a sentence, prior one’s release on parole. A Standard Non-Parole Period represents the non-parole period that, taking into account only the objective factors affecting the relative seriousness of an offence, is in the middle range of seriousness. As can be seen below, even for the middle range of matters that the court will see, a significant period of time in custody is to be served for sex offences.

The Standard Non-Parole Periods that apply to some sex offences in New South Wales are:

• Sexual assault— 7 years
• Aggravated sexual assault— 10 years
• Aggravated sexual assault in company— 15 years
• Aggravated sexual touching- 5 years (increased to 7 years for offences committed on or after 1 January 2009).
• Sexual Touching (Child under 10)- 8 years
• Sexual Intercourse (Child under 10)- 15 years
• Attempt, or assault with intent to have sexual intercourse (Child under 10)- 10 years
• Sexual intercourse (Child between 10-14 years old)- 7 years
• Aggravated Sexual Intercourse (Child 10-14)- 9 years
• Aggravated Sexual Intercourse (Child 14-16)- 5 years
• Procure Child for unlawful sexual activity (Child under 14)- 6 years
• Procure Child for unlawful sexual activity (Child 14-16 years)- 5 years
• Meet a child following grooming (Under 14 years)- 6 years
• Meet a child following grooming (Child 14-16 years)- 5 years
• Groom Child for unlawful sexual activity (Child under 14)- 5 years
• Groom Child for unlawful sexual activity (Child 14-16 years)- 4 years
• Induce child to participate in child prostitution (Child under 14)- 6 years
• Obtain Benefit from Child Prostitution (Child under 14)- 6 years
• Use child under 14 years for child abuse purposes- 6 years

Jail as the Only Option

Under Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), for an offender to be sentenced to ‘full-time’ imprisonment, the court must be satisfied that no penalty other than imprisonment is appropriate. This is often referred to as the ‘Section 5 Threshold.’

Up until 24 September 2018, the courts had several alternative options to full-time imprisonment, even if the Section 5 Threshold had been crossed, including a Suspended Sentence of Imprisonment to be served in the Community, an Intensive Correction Order or Home Detention. However, since 24 September 2018, the courts can only impose an Intensive Corrections Order (ICO) as an alternative to a sentence of full-time imprisonment.

A Prescribed Sexual Offence

However, Section 67(1)(b) of the Crimes (Sentencing Procedure) Act 1999 states that an Intensive Correction Order must not be made in respect of a sentence of imprisonment for a “prescribed sexual offence”. A “prescribed sexual offence” is defined in Section 67(2) as:

1. An offence under Part 3, Division 10 or 10A of the Crimes Act 1900 (NSW), being:
   1. an offence where the victim is under 16 years of age, or
   2. an offence where the victim is any age and the elements of which includes sexual intercourse (as defined by section 61H)
2. An offence against ss 91D, 91E, 91F, 91G or 91H Crimes Act 1900 (NSW)
3. An offence against ss 91J, 91K or 91L, where the victim is under 16 years, or
4. An offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.

What this means is that when the courts are dealing with sex offenders, even those whose offending is at the lower end of objective seriousness or carries lower maximum penalties, Courts generally have no alternative but to sentence sex offenders to full-time imprisonment.

Purpose of Sentencing

Generally, the court is guided by seven purposes when imposing a sentence on any offender pursuant to Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW):

1. To ensure the offender is punished for the offence;
2. To prevent crime by deterring the offender and the broader community from committing similar offences;
3. To protect the community from the offender;
4. To promote the rehabilitation of the offender;
5. To make the offender accountable for his or her actions;
6. To denounce the conduct of the offender; and
7. To recognise the harm done to the victim of the crime and the community.

Strategies for Sentencing and Rehabilitation

In order to promote the rehabilitation of the offender in sexual offences, there is a reliance on Custody-Based Intensive Treatment (CUBIT) for sex offenders to ensure the key sentencing element of rehabilitation is thoroughly addressed before release. A study, finalized in July 2016, noted that within five years of release from custody, 12 percent of offenders who completed a CUBIT program committed a proven sex offence compared to 25 percent of offenders who were suitable for such a program but did not participate.

Another strategy the court has used to ensure that the rehabilitation of an offender is properly addressed has been to increase the period of time an offender spends on parole as part of any sentence of full-time imprisonment. The purpose of this is to supervise and support the reintegration of offenders before the end of their total sentence while providing a continuing measure of protection to the community. This ensures the offender remains supervised by a Community Corrections Office and has to comply with strict conditions for the remainder of their sentence.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. Given the seriousness of the applicable penalties pertaining to sexual based offences, if you have been charged with an offence of this type and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss your matters with one of our lawyers.