NSW Sentencing Law Explained: The 5-Year Prison Sentencing Rule

A little-known rule in NSW sentencing law is quietly shaping outcomes in criminal cases—and in some situations, it can dramatically reduce the amount of time a person spends in prison.

At the centre of it is section 58 of the Crimes (Sentencing Procedure) Act (CSPA)—a provision that places a cap on how long a person can be imprisoned when multiple sentences are involved in New South Wales.

What is the “5-year rule”?

Section 58 limits the total length of imprisonment a Local Court can impose when someone is already serving a prison sentence.

In simple terms:
If a person is already in custody, the court generally cannot structure a new sentence (whether fully consecutive or partly consecutive) in a way that pushes the total time—from the start of the existing sentence to the end of the new one—beyond 5 years.

This is different to the limitation under section 53B CSPA limiting the local court from imposing an aggregate imprisonment sentence for more than 5 years. The court here is limited to 5 years where imposing an aggregate imprisonment sentence with respect to 2 or more offences instead of imposing a seperate sentence for each at the time of sentencing in court.

The Local Court is otherwise limited to imposing a term of imprisonment of no more than 2 years for any single offence pursuant to sections 267 and 268 of the Criminal Procedure Act 1986 (NSW).

A Case That Clarified the Law

The rule came under scrutiny in R v Perrin [2022] NSWCCA 170—a case that tested how far section 58 really goes.

Mr Perrin had already served time for domestic violence offences and, while in custody, was hit with further charges relating to earlier incidents. By the time he was sentenced for these new offences, his previous prison terms had already expired.

For the new offences, the Local Court imposed a sentence that, when backdated, effectively exceeded the 5-year cap partially overlapping the previous prison term that had already expired.

The offender, Mr. Perrin was sentenced to 12 months imprisonment commencing on 22 September 2019 from when he was arrested, charged and refused bail till 21 September 2020 (with a non parole period of 6 months) for domestic violence offences.

While in prison his previous intensive correction order was revoked by the parole authority, and was thereby required to serve 14 months full time imprisonment from 22 September 2019 to 21 November 2020.

While serving the above imprisonment sentences, he was charged with further domestic violence offences from an incident a few years earlier. For these new domestic violence offences, he was refused bail and in custody from 19 February 2020.

On 19 May 2021, Mr Perrin pleaded guilty in the local court to the recent domestic violence offences. The local court magistrate sentenced him on 24 June 2021, by which time, his previous imprisonment sentences had expired already (they expired on 21 November 2020). Mr Perry was sentenced for the new domestic violence offences to a total sentence of 5 years imprisonment backdated from 19 August 2020 till 18 August 2025.

In effect, this would mean that from going into custody from 22 September 2019 (the existing sentence) and 18 August 2025 (the end of the new sentence), the total imprisonment sentence adds up to be over 5 years. This is prohibited by section 58.

However, on an appeal to the District Court, the District Court imposed a sentence that fits within the 5 years imprisonment term.

The matter was then heard before the Supreme Court to clarify whether section 58 still requires courts to keep limited to the 5 years imprisonment limitation in circumstances as in Mr Perrin’s case where by the time of being sentenced, Mr Perrin’s existing imprisonment sentences had expired.

The Supreme Court of Criminal Appeal basically said that section 58 does not place this limitation where the previous imprisonment sentence had already expired by the time the new sentence is imposed.

Whether there is an “existing sentence” is determined as at the date of imposing the new sentence.

In summary, if the earlier sentence has already finished, the 5-year cap does not apply—even if the new sentence overlaps with the old one due to backdating.

Why This Matters

This interpretation has real consequences:

• Courts can impose longer total sentences if timing works a certain way
• Backdating can change whether section 58 applies or not
• The difference may come down to when sentencing occurs, not just what the offences are

Legal Loopholes and Strategic Tensions

The operation of section 58 has also exposed some procedural grey areas:

1. Prosecutorial Workarounds
Prosecutors can sometimes sidestep the 5-year limit by withdrawing Local Court charges and filing an ex officio indictment in a higher court. Whether this crosses into abuse of process depends on the facts—and remains unsettled.

2. Timing is Everything
If certain procedural steps occur (like the point where an election to a higher court is no longer available), the Local Court may be locked into dealing with the case—even if section 58 becomes an issue later.

3. Fixing Mistakes
If a sentence breaches section 58, courts can reopen proceedings to correct it. If not addressed, the issue can escalate through appeals or judicial review.

4. Absence of the Accused
If a person is convicted in their absence, procedural rules can unintentionally trigger section 58 protections by limiting the prosecution’s options.

Ethical Considerations

One of the most debated aspects of section 58 is how—and when—it should be raised.

• Defence lawyers are not required to alert the prosecution to a potential section 58 issue early on.
• Strategically remaining silent until certain procedural stages pass can lock in the benefit for a client
• However, lawyers must advise their clients about how section 58 could affect their case, including any advantages tied to timing or plea decisions

Importantly, using section 58 to a client’s advantage is not unethical—it is part of legitimate legal strategy. A good experienced criminal lawyer will appropriately advise their clients in a timely manner.

Section 58 might look like a technical rule, but in practice it can be decisive. Whether it applies can hinge on:

• The exact timing of sentencing
• Whether a prior sentence is still active
• Strategic decisions made by both prosecution and defence

For anyone facing multiple charges—or already serving time—it’s a provision that can significantly shape the final outcome.