Category 2 Offences

For a Category 2 offence, a court must make a custodial order and cannot make a combined order (i.e. imprisonment and community corrections order) unless special reasons exist under section 5(2H) of the Sentencing Act 1991.

For category 2 offences committed on or after 28 October 2018, special reasons not to impose a custodial order are restricted to circumstances where:

• the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
• the offender proves on the balance of probabilities that:
  • at the time of the commission of the offence, they had impaired mental functioning (that was not solely caused by self-induced intoxication) that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
  • they have impaired mental functioning that would result in being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
• the court proposes to make a court secure treatment order or a residential treatment order in respect of the offender; or
• there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3.

In determining whether there are ‘substantial and compelling circumstances’ under s5(2H)(e), the court must:

• regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in s5(1); and
• give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
• not have regard to:
  • the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
  • an early guilty plea; or
  • prospects of rehabilitation; or
  • parity with other sentences; and
• have regard to parliament’s intention that a sentence of imprisonment should ordinarily be imposed and whether the cumulative impact of the circumstances justify a departure from such a sentence.

A category 2 offence means any of the following offences committed by a person who is 18 years of age or more at the time of the commission of the offence (see s3 definitions):

• manslaughter;
• an offence against section 5A of the Crimes Act 1958 (child homicide);
• an offence against section 5B of the Crimes Act 1958 (homicide by firearm);
• an offence against section 16 of the Crimes Act 1958 (causing serious injury intentionally) other than a category 1 offence;
• an offence against section 63A of the Crimes Act 1958 (kidnapping);
• an offence against section 75A(2) of the Crimes Act 1958 (armed robbery) if—
  • the offender has with him or her a firearm at the time of the offence; or
  • a victim of the offence has suffered injury as a direct result of the offence; or
  • the offence was committed by the offender in company with one or more other persons;
• an offence against section 77A(3) of the Crimes Act 1958 (home invasion);
• an offence against section 79(2) of the Crimes Act 1958 (carjacking);
• an offence against section 197A of the Crimes Act 1958 (arson causing death);
• an offence against section 318(1) of the Crimes Act 1958 (culpable driving causing death);
• an offence against section 319(1) of the Crimes Act 1958 (dangerous driving causing death);
• the offence of kidnapping at common law;
• an offence against section 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (trafficking in a drug or drugs of dependence—commercial quantity);
• an offence against section 72A of the Drugs, Poisons and Controlled Substances Act 1981 (cultivation of narcotic plants—commercial quantity);
• an offence against section 4B(1) of the Terrorism (Community Protection) Act 2003 (providing documents or information facilitating terrorist acts);
• an offence against section 317AD of the Crimes Act 1958 (aggravated offence of intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving) other than a category 1 offence;
• an offence against section 317AF of the Crimes Act 1958 (aggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving);
• an offence against section 31C of the Crimes Act 1958 (discharging a firearm reckless to safety of a police officer or a protective services officer) in circumstances where the offender’s conduct created a risk to the physical safety of the victim or any member of the public;
• the offence of common assault committed in the circumstances referred to in section 320A(1) or (2) of the Crimes Act 1958 if the assault consisted of or included the direct application of force within the meaning of the definition of assault in section 31(2) of that Act.