SENTENCING OFFENDERS IN NSW
In NSW, the sentencing process is governed by the Crimes (Sentencing Procedure) Act 1999 (Act), the relevant provisions of the act creating the offence and Common Law.
PURPOSES OF SENTENCING
Section 3A of the Act provides the purposes of sentencing which are:
- To ensure that the offender is adequately punished for the offence,
- To prevent crime by deterring the offender and other persons from committing similar offences,
- To protect the community from the offender,
- To promote the rehabilitation of the offender,
- To make the offender accountable for his or her actions,
- To denounce the conduct of the offender,
- To recognise the harm done to the victim of the crime and the community.
SENTENCING OPTIONS IN NSW
The Act creates the following sentence options:
- Dismissals,
- Conditional Release Orders without conviction,
- Convictions with no other penalty,
- Fines,
- Conditional Release Orders (CRO) with conviction,
- Community Correction Orders (CCO),
- Full time imprisonment:
- To be served via Intensive Correction Orders (ICO), or
- To be served in custody.
DISMISSALS
On a guilty plea or finding of guilt, the Court has a discretion to dismiss the charge/s against the offender after considering the following:
- The offender’s character, antecedents, age, health and mental condition,
- The trivial nature of the offence,
- The extenuating circumstances in which the offence was committed,
- Any other matter that the court thinks proper to consider.
CONDITIONAL RELEASE ORDERS | CRO
Instead of imposing a sentence of imprisonment, on finding of guilt or a guilty plea, the Court can sentence an offender to a Conditional Release Order (CRO) with or without conviction.
In determining whether or not to sentence an offender to a Conditional Release Order (CRO) with or without conviction, the Courts consider:
- The offender’s character, antecedents, age, health, and mental condition,
- The trivial nature of the offence,
- The extenuating circumstances in which the offence was committed,
- Any other matter that the court thinks proper to consider.
The maximum term of the Conditional Release Order (CRO) is 2 years and includes the following standard conditions:
- A condition that the offender must not commit any offence, and
- A condition that the offender must appear before the court if called on to do so at any time during the term of the Conditional Release Order (CRO).
To meet the purposes of sentencing, the Court can also impose additional conditions which may include:
- A rehabilitation or treatment condition,
- A drug/alcohol abstinence condition,
- A non-association condition,
- A place restriction condition,
- A supervision condition.
CONVICTION WITH NO OTHER PENALTY
The Court has the power to record a conviction with no other penalty when sentencing an offender.
FINES
A Court sentencing a convicted person may in addition or instead of any other punishment impose a fine.
In imposing a fine, the Court is required to consider:
- The financial means of the offender, and
- Any other matter that the Court deems relevant.
COMMUNITY CORRECTION ORDERS | CCO
On conviction and instead of imposing a sentence of imprisonment, the Court can impose a Community Correction Order (CCO). Community Correction Orders (CCO) can only be made after recording of a conviction and may be imposed in addition to a Fine.
A Community Correction Order (CCO) can be imposed for a maximum period of 3 years and will have the same standard conditions as a Conditional Release Order (CRO) but may also include the following additional conditions:
- A rehabilitation or treatment condition,
- A drug/alcohol abstinence condition,
- A non-association condition,
- A place restriction condition,
- A supervision condition,
- A curfew condition (12 hours in any 24-hour period),
- Community service condition.
FULL TIME IMPRISONMENT
Full time imprisonment is the most serious form of punishment imposed on an offender. The Court will only sentence an offender to imprisonment if it is satisfied that no other possible alternative penalty is appropriate.
When sentencing an offender to imprisonment, the Local Court’s jurisdiction is limited to imposing a maximum sentence of 2 years for one single offence and 5 years as an aggregate sentence for multiple offences.
INTENSIVE CORRECTIONS ORDERS | ICOs
A Court, that has sentenced an offender to imprisonment in respect of one or more offences, can order that the sentence be served by way of an Intensive Correction Order (ICO).
A Court can only impose an Intensive Correction Order (ICO) after consideration of the three-stage process:
- First, the Court must be satisfied that, having considered all alternatives, no penalty other than imprisonment is appropriate,
- Second, the Court must determine the term of the sentence. An Intensive Correction Order (ICO) cannot be made in respect of a single offence if the duration of the term of imprisonment for the offence exceeds 2 years and an Intensive Correction Order (ICO) cannot be made in respect of an aggregate sentence of imprisonment which exceeds 3 years.
- Third, the Court must consider the appropriateness of an Intensive Correction Order (ICO) in the context of the paramount consideration of community safety and the purposes of sentencing.
An Intensive Correction Order (ICO) has the capacity to operate as substantial punishment but can also reflect a significant degree of leniency because it does not involve immediate incarceration of the offender.
Intensive Correction Order (ICO) will have the same standard conditions as a Conditional Release Order (CRO)/ Community Correction Order (CCO) but may also include the following additional conditions:
- A rehabilitation or treatment condition,
- A drug/alcohol abstinence condition,
- A non-association condition,
- A place restriction condition,
- A supervision condition,
- A curfew condition,
- Community service condition,
- Home detention condition.
Intensive Correction Orders (ICO) cannot be imposed for certain offences, some of which include:
- Murder or manslaughter,
- Prescribed sexual offences,
- Terrorism offences,
- Offences involving discharge of firearms.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
