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Sentencing Provisions in NSW

Act & Section

Crimes (Sentencing Procedure) Act (NSW)

Type

Penalty provisions in NSW

Process

Sentencing options for judicial officers in NSW

What

Sentences passed by magistrates, judges or justices in NSW

Observations

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

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.     Section 10 Dismissal and Conditional Release Orders (non-conviction)

Sometimes the question of whether the court convict a person is simple because of the seriousness of the offence,  the person’s prior convictions, 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 you case presents with the relevant facts and your lawyer is well versed with the legislation and case law. This a finding under s.10(1)(a) Crimes (Sentencing Procedure) Act.

2.     s.9 Conditional release orders (non-conviction) (“CRO”)

The other non-conviction option is where the charge is dismissed on condition of the person entering a Conditional Release Order under s.9(1)(b) Crimes (Sentencing Procedure) Act. A Conditional Release Order can be imposed for a maximum of two years.

If a Conditional Release Order is imposed without a conviction, no other penalty can be imposed. However, conditions can be imposed. 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.

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. Part 8 Crimes (Sentencing Procedure) Act provides guidance as to the type of conditions that can and specifically cannot be imposed

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

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 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.

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.15 Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment and specific Acts

Fines in summary matters are specified within the offence provision  breached. However, where a fine is to be imposed for an indictable offence the power is at s.15 Crimes (Sentencing Procedure) Act.

Where a fine is the sentence in the Local Court, passed by a magistrate, the jurisdictional limit is 100 penalty units, or $11,000 or the value specified by the offence, whichever is the smaller: s.267(3) Crimes (Sentencing Procedure) Act. The value of a NSW penalty unit is $110 per s.17 Crimes (Sentencing Procedure) Act.

4.     s.8 Community Correction Orders (“CCO”)

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:

1.     s.7 Intensive correction orders 

An intensive corrections order is a prison sentence served in the community. It is available where is 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.

2.     s.5 Penalties of imprisonment

For a court to sentence a person to imprisonment (whether full time imprisonment or an intensive correction order) it must have considered all other options available and determined that no penalty other than imprisonment is available: s5 Crimes (Sentencing Procedure) Act.

Unless imposing an aggregate sentence, or one 6 months or less, the court must impose a non-parole period. The parole period is not to exceed one third of the non-parole period unless special circumstances are found.

A court imposing an aggregate sentence, for 2 or more offences, may set a non-parole period, but does not have to state the individual non-parole period for each offence.

Notwithstanding the above, a court does not have to set a non-parole period, if it appears to the court appropriate to do so because of the nature of the offence(s) or antecedents of the person, because of another penalty passed on the person, or for any other reason the court considers sufficient.

However, a non-parole period must be set for a prison sentence in excess of 6 months passed in the Local Court, or if the person is under 18 years of age.

The sentence commences on the day it is passed, however, time served if bail refused, for any period can be taken into account as can any time served in residential rehabilitation.

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