When a person is already serving a prison sentence and receives another sentence for additional offences, the way those sentences are structured can affect how long they remain in custody.
In NSW, section 58 of the Crimes (Sentencing Procedure) Act 1999 contains a rule governing certain sentences imposed by the Local Court where a person is already serving a prison sentence. Commonly described as the “five-year rule”, it can restrict how far a new sentence may extend beyond an existing sentence.
However, the rule is more complicated than a simple five-year limit on imprisonment. It does not mean that every person in prison can serve no more than five years, nor does it automatically guarantee an earlier release date.
The application of section 58 depends on the existing sentence, the court dealing with the new offences and the circumstances at the time the new sentence is imposed.
What is the five-year prison sentencing rule in NSW?
Where multiple prison sentences are imposed, a court may order them to be served concurrently or consecutively.
- Concurrent sentences are served at the same time. For example, two three-year sentences served concurrently generally result in a total sentence of three years.
- Consecutive sentences are served one after another. For example, two three-year sentences served consecutively may result in a total sentence of six years.
Section 58 places restrictions on the way the Local Court can structure certain new sentences when a person is already serving a prison sentence.
The key question is whether the provision restricts how a new Local Court sentence may be imposed when an existing prison sentence is involved.
The answer may depend on matters such as:
- whether the person is still serving the existing sentence when the new sentence is imposed;
- which court imposed the existing sentence;
- whether the new sentence is to operate concurrently, consecutively or partly both;
- the commencement date and proposed end date of the new sentence; and
- whether the statutory requirements and exceptions apply.
The five-year rule should therefore not be treated as an automatic cap on a person’s total imprisonment in every case.
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