Possible outcomes for criminal offences
What is the statutory penalty?
The statute containing the offence will specify a penalty for the offence. For example, the offence of trespass is contained in s70A of The Criminal Code 1913 (WA). The penalty is also noted in s70A as 'imprisonment for 12 months and a fine of $12,000'.
Depending on how the specified statutory penalty is described, there may be a range of options available to the court, or the options may be very limited.
How are statutory penalties described?
The statutory penalty will usually be described as a fine, a community order, imprisonment, or a combination of these. A penalty may be described as a minimum. A penalty may be specified to apply in certain circumstances only.
Some common descriptions are:
- a fine and imprisonment, for example a fine of $24,000 and 2 years imprisonment
- a fine or imprisonment
- imprisonment only
- a fine only.
These descriptions are interpretted in a particular way under the Sentencing Act 1995 (WA).
Fine and imprisonment means any option under the Sentencing Act 1995 (WA) is available to the court other than no sentence and if appropriate, the court may impose both a fine and another sentencing option.
Fine or imprisonment means any one option under the Sentencing Act 1995 (WA) may be imposed.
Imprisonment only, means any option under the Sentencing Act 1995 (WA) is available to the court other than no sentence and if appropriate, the court may impose both a fine and another sentencing option.
Fine only, means the court may only impose no sentence, a conditional release order, a fine or a suspended fine, but nothing more serious than that. However, for certain fine only offences it is possible for a court to impose a community based order.
Minimum and maximum penalties
The statutory penalty may be stated without any reference to whether it is the minimum or maximum. In this case, it is taken to be the maximum penalty available to the court when sentencing an offender for that offence.
If a penalty is stated to have a minimum then the court must impose at least that minimum penalty. Minimum penalties are common in road traffic offences where a minimum fine and a minimum period of licence disqualification are often the specified penalty. Minimum periods of imprisonment exist for certain serious offences committed repeatedly, such as home burglaries.
Penalties in set circumstances
The statutory penalty may be stated to be different in set circumstances, for example where an offence of assault is committed against someone who is 60 years old or more the statutory maximum penalty is higher.
The statutory penalty may also be stated to be different depending on whether the offence is dealt with on indictment in the District Court, or summarily in the Magistrates Court. See Types of offences.
Possible penalties under the Sentencing Act
Once a court has considered the statutory penalty, it will know what range of penalty options are available to it. The possible penalties are listed in the Sentencing Act 1995 (WA) in order of seriousness and in the order in which a court must consider them. The last and most serious penalty, immediate imprisonment, cannot be imposed unless all other available penalties are considered inappropriate.
The possible penalties in the order listed in the Sentencing Act 1995 (WA) are:
- No sentence – no penalty considered necessary
- Conditional release order – no penalty if of good behaviour for the time specified in the order
- Fine – payment of a specified amount of money
- Suspended fine – not required to be paid if of good behaviour for the time specified in the order
- Community based order – reporting in the community for the time specified in the order, with programme or community service requirements or both
- Intensive supervision order – supervision in the community for the time specified in the order, with or without programme or community service requirements or both
- Suspended imprisonment order – no imprisonment to be served if of good behaviour for time specified in order
- Conditional suspended imprisonment order - no imprisonment to be served if of good behaviour for time specified in order and if comply with reporting requirements and supervision or programme requirements as specified in order
- Imprisonment – immediate imprisonment.
Your actual sentence
Taking into account the statutory penalty and the possible penalties it may impose under the Sentencing Act 1995 (WA), the court will impose an actual sentence on you. For example, the court may order that you pay a fine of $2,000.
The actual penalty will be decided having regard to the particular facts of the offence, your criminal record and your personal situation. Spent convictions count as prior convictions when you are in court.
The sentencing outcome will be recorded by the court and may be the subject of an appeal against sentence.
If you want to know the penalty you are likely to get in your particular situation, you should get legal advice.
Other orders and declarations following conviction for an offence
There are some orders and declarations that are not part of the penalty, but may be made when you are convicted of an offence.
For example, a court convicting you of an offence may consider granting you a Spent Conviction Order if you meet the criteria for such an order. If the court decides to make the order, it must be made at the time of sentence and cannot be made on a later date.
A Serial Family Violence Offender declaration may be made by a court convicting you of a family violence offence, if you have the right number and type of prior convictions and meet other criteria for the declaration to be made. This is a serious outcome. See this Legal Aid WA information sheet on family violence offences and Serial Family Violence Offender declarations for detailed information about how a declaration might be made and the consequences to you if you are declared a Serial Family Violence Offender.
A court may also make an order for you to pay court costs following conviction for an offence. Payment of these costs may be enforced against you in the same way as a court fine.
- District Court website - A Guide to Sentencing in Australia
Reviewed: 21 June 2021