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Sentencing Provisions in Federal matters

Act & Section

Crimes Act (CTH)

Type

Penalty provisions Commonwealth or Federal

Process

Sentencing options for judicial officers in NSW with Federal offences

What

Sentences passed by magistrates, judges or justices in NSW for Commonwealth offences

Observations

The penalty provisions in this section are described from the least severe to the most severe available.

The Commonwealth, or Federal, sentencing regime is limited and from time to time relies on the NSW sentencing options: s.20AB Crimes Act (Cth).

DISMISSAL.

If a person pleads not guilty to a criminal allegation and the matter is not proven beyond reasonable doubt, the matter will be dismissed. However, if there is a finding of guilt, the court will have to select one of the sentencing options set out below.

NON-CONVICTION ALTERNATIVES:

1.     s.19B(1)(c) Dismissal of charges and conditional discharge of offender (non-conviction)

Once a person is  to be sentenced for a federal offence, the court the turns its mind to whether a conviction needs to be imposed. Sometimes this is simple because of the seriousness of the offence, the prior convictions of the person or because of a collection of facts and circumstances. However, sometimes, there may be room to argue for a non-conviction disposition.

The most lenient outcome is a finding of guilt but a dismissal of the charge. These findings are rare but achievable if your case presents with the relevant facts and your lawyer is well versed with the legislation and case law. This a finding under s.19B(1)(c) Crimes Act (CTH).

The Crimes Act provides guidelines for a court to consider is deciding on this course of action as does case law decided by the courts.

2.     s.19B(1)(d) Dismissal of charges and conditional discharge of offender (non-conviction)

The other non-conviction option is a dismissal of the charge on condition the person enter a Recognizance under s.19B(1)(d)) Crimes Act (Cth). A recognizance can be imposed for a maximum of 3 years. In simple terms it is a good behaviour bond, which is a solemn promise to the court to be of good behaviour or face consequences.

The recognizance can be conditioned that reparation, restitution or compensation orders can be made, meaning the court can order that you pay costs of the prosecution of the offence(s).

If the court chooses to impose further conditions, these conditions are only valid for 2 years, including supervision orders of probation and parole (now referred to in NSW as Community Corrections).

The Crimes Act provides guidelines for a court to consider is deciding on this course of action as does case law decided by the courts.

If the court decides a conviction is warranted, it will move to consider the penalties below.

NON-CUSTODIAL ALTERNATIVES:

1.     s.10A Conviction with no other penalty [THIS IS AN AVAILABLE NSW PROVISION]

As the title says, this means the court has found the offence serious enough to convict a person but does not need to further punish them by a bond or fine. s.10A Crimes (Sentencing Procedure) Act.

2.     s.9 Conditional Release Orders (“CRO”) [THIS IS AN AVAILABLE NSW PROVISION]

This is a good behaviour bond, with conviction, that can be imposed instead of a fine or imprisonment.

The court can be very creative in framing conditions. For example, in a traffic matter, it may be a condition that the person be of good behaviour and not commit any moving traffic offences that accumulate a certain number of points.

Standard conditions of a Conditional Release Order are:

(a)   to not commit an offence during the currency of the Order, and
(b)   appear at court if called upon.

Again, there will be a range of considerations the court will, take into account, when deciding on this course as a penalty. The legislation spells out what the court must consider, and the case law provides, further direction on how this is to be done. See s.9 and Part 8 Crimes (Sentencing Procedure) Act.

3.     s.16C Fines

A court is to take into account the persons financial circumstances before imposing a fine, in addition to other sentencing considerations. Nothing prevents a fine being imposed if the court cannot ascertain those circumstances.

 Fines are calculated using the penalty unit scheme. The value of a Commonwealth penalty unit, as at 1 May 2020, is $210: s.4AA Crimes Act.

4.     s.20(1)(a) Conditional release of offenders after conviction

If a court convicts a person, it may release the person without passing sentence upon a promise to pay a security, with or without surety, by a recognizance or otherwise, to comply with the following conditions:

    1. to be of good behaviour [not commit an offence] not exceeding 5 years,
    2. pay reparation, restitution or compensation, as ordered, or costs of the prosecution on or before a specific date, on terms, [NOTE: a person cannot be imprisoned for failure to pay these sums.]
    3. pay a pecuniary penalty to the Commonwealth, [NOTE: The maximum amount of the penalty is value of the fine if one is provided for, or where no fine is provided – is, if NOT in the Local Court, then 300 penalty units, if IN the Local Court, then 60 penalty units.]
    4. during a (maximum) period of two from the commencement of the order, comply with any other conditions the court thinks fit to order.
    5. A further order could be to be the subject of supervision of the probation and parole service (now Community Corrections) and obey all reasonable directions of the Officer. During this time the person will not be allowed to travel interstate or internationally without written authority of the Officer.

5.     s.8 Community Correction Orders (“CCO”) [THIS IS AN AVAILABLE NSW PROVISION]

This is the most serious punishment a court can impose before moving to custodial sentences. It can contain several conditions and requirements.

The maximum period of a community corrections order is 3 years.

The standard conditions of a community corrections order are:

(a)   not commit any offence during the term of the Order, and
(b)   appear at court if called upon to do so during the term of the Order.

Additional conditions may be added depending on the seriousness of the offending or criminal record of the person:

(a)   curfew – not greater than 12 hours in any 24-hour period,
(b)   community service work – not greater than 500 hours or the maximums in the regulations (after a proper assessment report is completed and found to be satisfactory), Note: community service work orders cannot be made on someone who ordinarily resides outside NSW unless the court is satisfied, the person is willing and able to return do the work or the location the person lives in is declared by the regulations to be approved. Note: The numbers of hours set by the court must not be less than prescribed by the regulations.
(c)    participate in rehabilitation or treatment program(s),
(d)   abstain from alcohol or drugs,
(e)   prohibit association with particular people,
(f)    prohibit frequenting a place or area,
(g)   supervision by a Community Corrections Officer if an adult, or Juvenile Justice Officer if the person is under 18 years of age. Note: supervision orders cannot be made if the person lives outside NSW unless the location is declared an approved jurisdiction.

Further conditions may be set at the time of sentencing or on application by the community corrections officer that impose further conditions or vary or revoke conditions further conditions. Any further conditions cannot be inconsistent with the standard conditions the additional conditions, whether the additional conditions were imposed.

A person the subject of a community corrections order may make an application to the court under s.89 or 90 Crimes (Sentencing Procedure) Act, the court may refuse it if it is without merit.

The court may deal with the application without the parties being present, if the community corrections if the community corrections officer agrees, in open court or in the absence of the public.

The original judicial officer does not have to be the one dealing with the application.

CUSTODIAL ALTERNATIVES:

6.     s.20(1)(b) Conditional release of offenders after conviction

Where a court convicts a person and determines per s.16A Crimes Act (Cth), that a sentence of imprisonment is “…of a severity appropriate in all the circumstances of the offence”. Having also formed the view that “…no other sentence is appropriate in all the circumstances of the case”: s.17A(1) Crimes Act (Cth), the court can utilise this provision, in effect a suspended prison sentence.

Under this provision a term of a prison sentence is pronounced for the offence(s) but the person released upon giving security in terms set out above in s.20(1)(a) Crimes Act (Cth) and released, either forthwith or after serving a period of imprisonment.

Whilst the person is serving the suspended sentence in the community, the court may make them subject to the following condition:

                         i.         order the person be the subject of supervision of the probation and parole service (now Community Corrections) and obey all reasonable directions of the Officer. During this time, the person will not be allowed to travel interstate or internationally without written authority of the Officer.

A sentence (suspended prison sentence under this section) is not available to the following offences:

(a)   a terrorism offence,
(b)   an offence under Division 80 Criminal Code – treason, urging violence and advocating terrorism or genocide,
(c)    an offence against subsection 91.1(1) Espionage - dealing with information etc. concerning national security which is or will be communicated or made available to foreign principal or 91.2(1) Espionage--dealing with information etc. which is or will be communicated or made available to foreign principal of the Criminal Code.

The court must make a release order where the period of imprisonment does not exceed 3 years and the person is not already serving a sentence for a federal offence and must not fix a non-parole period.

7.     s.7 Intensive correction orders [THIS IS AN AVAILABLE NSW PROVISION]

An intensive corrections order is a prison sentence served in the community. It is available where a person is being sentenced for one or more offences.

The court is required to consider various factors in deciding if the sentence is to be served by way of intensive correction order, including community safety and whether rehabilitation is more likely to be achieved in the community or in custody. There has been much consideration of these issues in the appellate courts. The court must also take into account the Purposes of Sentencing: s.3A Crimes (Sentencing Procedure) Act.

Some offences are excluded from the intensive correction order regime:

(a)   murder or manslaughter,
(b)   prescribed sexual offences,
(c)    terrorism offences,
(d)   breaches of serious crime prevention orders,
(e)   breach of a public safety order,
(f)    offences involving the discharge of firearms,
(g)   an intention to commit one of the above offences or of attempting to commit them.

The limitation on the term of imprisonment for a single offence is 2 years and for multiple offences dealt with by aggregate sentence, the period of imprisonment cannot exceed 3 years.

If two or more intensive corrections orders are to be made, the duration of a single order cannot exceed 2 years and the total duration of all intensive correction orders cannot exceed 3 years.

An assessment report is required, the court is to take this and evidence from a community corrections officer. However, the court is not bound by the assessment report.

A court cannot make an intensive correction order for someone who lives outside NSW.

An intensive correction order will have conditions. The standard conditions are:

(a)   no offences are to be committed during the term of the order,
(b)   supervision by a community corrections officer.

At least one of the following additional conditions must be added to the intensive correction order [unless there are exceptional circumstances, the is required court to state the reasons], including:

(a)   a home detention condition (suitably assessment required first),
(b)   an electronic monitoring condition,
(c)    a curfew condition,
(d)   a community service work condition, not exceeding 750 hours of work or as prescribed by the regulations, whichever is the lesser (suitably assessment required first).
(e)   participate in rehabilitation or treatment program(s),
(f)    abstain from alcohol or drugs,
(g)   prohibit association with particular people,
(h)   prohibit frequenting a place or area,

The court can limit the duration of the additional orders.

The court may impose further conditions, these cannot be inconsistent with the standard or additional conditions.

The court can limit the duration of the further orders.

8.     s.17A(1) Penalties of imprisonment

For a court to sentence a person to imprisonment (whether full time or an intensive correction order) it must have considered all other options available and determined that no penalty other than imprisonment is available: s.17A(1) and also 16A Crimes Act (Cth).

The court must fix a non-parole period in any sentence set in the following circumstances:

(a)   conviction for federal offence(s), and
(b)   imposed on a person, and
(c)    either, or both, of the following apply:
         i.  any sentence is a federal life sentence,
         ii. the remaining federal sentence, in the aggregate, exceeds 3 years; and
(d)   when the sentence is imposed, the person is already serving a federal offence.

The court must fix a single non-parole period in respect of all federal sentences a person is to serve, if:

(a)   the person is in prison serving a federal sentenced and a further sentence is imposed, and
(b)   the person is to serve or complete:
              i.         a federal life sentence; or
              ii.         the remaining federal sentence, in the aggregate, exceeds 3 years, and
(c)    when the court imposes the further federal sentence, the person is not already subject to a non-parole period.

However, a non-parole period need not be set if, having regard to:

(a)   the circumstances of the offending, and
(b)   the antecedents of the person, or
(c)    the person will still be serving a State sentence.

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