Category 1 Offences

For Category 1 offences, a court must make an order under Division 2 of Part 3 (‘Custodial orders’) of the Sentencing Act 1991 and must not make a combined order.

For the purpose of sentencing Category 1 offences, a custodial order includes:

• imprisonment;
• drug treatment orders; and
• youth justice centre orders.

While a combined order (involving a term of imprisonment of up to 12 months and a community correction order, pursuant to section 44) is normally a custodial order under Division 2 of Part 3, courts are prohibited from imposing a combined order for Category 1 offences (s5(2G)).

An exception applies to certain category 1 offences against emergency and protected workers, in which a court may impose a sentence other than a custodial order if special reasons exist (emergency and protected worker offences are considered separately below).

Persuant to section 3 of the Sentencing Act 1991, a category 1 offence means any of the following offences committed by a person who is 18 years of age or more at the time of the offence:

• Murder;
• Causing serious injury intentionally in circumstances of gross violence (s15A(1) of the Crimes Act 1958);
• Causing serious injury recklessly in circumstances of gross violence (s15B(1) of the  Crimes Act 1958);
• Rape (s38(1) of the Crimes Act 1958);
• Rape by compelling sexual penetration (s39(1) of the Crimes Act 1958);
• Sexual penetration of a child under the age of 12 (s49A(1) of the Crimes Act 1958);
• Persistent sexual abuse of a child under the age of 16 (s49J(1) of the Crimes Act 1958);
• Sexual penetration of a child or lineal descendant (if the victim was, at the time of the offence, under the age of 18) (s50C(1) of the Crimes Act 1958);
• Sexual penetration of a step-child (if the victim was, at the time of the offence, under the age of 18) (s50D(1) of the Crimes Act 1958);
• Aggravated home invasion (s77B(2) of the Crimes Act 1958);
• Aggravated carjacking (s79A(2) of the  Crimes Act 1958);
• Trafficking in a drug or drugs of dependence—large commercial quantity (s71(1) of the Drugs, Poisons and Controlled Substances Act 1981);
• Trafficking in a drug or drugs of dependence for the benefit of or at the direction of a criminal organisation—commercial quantity (s71AA(2) of the Drugs, Poisons and Controlled Substances Act 1981);
• Cultivation of narcotic plants—large commercial quantity (s72 of the Drugs, Poisons and Controlled Substances Act 1981);
• The following provisions of the Crimes Act 1958 as in force before their repeal by section 16 of the Crimes Amendment (Sexual Offences) Act 2016:
  • Incest with the person’s child, other lineal descendant or step-child (if the victim was, at the time of the offence, under the age of 18) (s44(1));
  • Incest with a child, other lineal descendant or step-child under the age of 18 of the person’s de facto spouse (s44(2));
  • Sexual penetration of child under the age of 16 (committed in the circumstance of aggravation described in s45(2)(a) of the Crimes Act 1958 as then in force) (s45(1));
  • Persistent sexual abuse of child under the age of 16 (s47A(1));