What happens when a client receives a custodial sentence?
Produced in partnership with Flora Page of 23 Essex Street

The following Corporate Crime practice note produced in partnership with Flora Page of 23 Essex Street provides comprehensive and up to date legal information covering:

  • What happens when a client receives a custodial sentence?
  • What do you say to a client facing a custodial sentence?
  • Fundamental principles
  • Custody threshold
  • Pre-sentence reports
  • Adjourning for a PSR
  • Immediate custodial sentences
  • Suspended sentence order
  • Mitigation and character references
  • Indications on sentence in advance of plea
  • More...

What happens when a client receives a custodial sentence?

What do you say to a client facing a custodial sentence?

When clients are facing time in prison, they can feel overwhelmed or daunted. This Practice Note is designed to be a speaking aid to assist practitioners to advise a client as to a possible custodial sentence. It points the practitioner to relevant detailed guidance and enables a practitioner to discuss with their client what will happen if they receive a custodial term.

Fundamental principles

Detailed guidance on the general principles applicable to all sentencing exercises can be found in the following Practice Notes:

  1. Sentences and the power to vary a sentence, and

  2. Pre-sentence reports

  3. Calculating time spent on remand or on tagged bail

  4. Victim personal statements in criminal proceedings

  5. Sentencing criminal offences—sentencing guidelines and resources

  6. Credit for guilty plea

  7. Mitigation in the sentencing of criminal offences

What follows is a summary of the fundamental principles applicable to custodial sentences.

Custody threshold

A custodial sentence must not be imposed unless the offence:

‘was so serious that neither a fine alone nor a community sentence can be justified for the offence’

This test is referred to as the custody threshold and is found at SA 2020, s 230. For further information, see Practice Note: Sentences and the power to vary a sentence—Custodial sentences.

Pre-sentence reports

The Sentencing Code contains various provisions governing the requirement of a

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