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SENTENCING OFFENDERS IN NSW
Sentencing offenders in NSW
The sentencing process in NSW is governed by the Crimes (Sentencing Procedure) Act 1999 (Act), the relevant provisions of the act creating the offence and Common Law.
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.
The above purposes may conflict at times and the weight afforded to each purpose will depend on the seriousness of the offending and the subjective circumstances of the offender.
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.
Each sentence option requires consideration of different factors in the context of the purposes of sentencing.
Dismissal
On a guilty plea or finding of guilty, the Court has a discretion to dismiss the charge against the offender after considering the following:
- The person'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, the Court can impose a Conditional Release Order (CRO) with or without conviction after consideration of the following factors:
- The person'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 and alcohol abstinence condition,
- A non-association condition,
- A place restriction condition, or
- A supervision condition.
The imposition of the additional conditions will depend on the offence and the subjective circumstances of the offender.
When sentencing offenders for Domestic Violence offences, if a Court determines that the appropriate sentence is a Conditional Release Order (CRO), the Court must impose a supervision condition unless the Court deems a different sentence is appropriate and provides its reasons.
CONVICTION WITH NO OTHER PENALTY
The Court has the power to record a conviction with no other penalty when sentencing an offender and this option is commonly used when the Court is sentencing the offender for multiple offences.
For example, if the Court is sentencing an offender for Negligent driving occasioning actual bodily harm and Drive while suspended, the Court may impose a full-time custodial sentence in relation to Negligent driving and make a finding that accompanying Drive while suspended can be dealt with a conviction and no other penalty.
Fines
A Court sentencing a convicted person may in addition or instead of any other punishment impose a fine. The maximum fine for an offence at the Local Court is $11,000.00 unless there is a specific provision for the quantum of fine in the legislation which creates the offence.
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 and 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.
The imposition of the additional conditions will depend on the offence and the subjective circumstances of the offender.
When sentencing offenders for Domestic Violence offences, if a Court determines that the appropriate sentence is a Community Correction Order (CCO), the Court must impose a supervision condition unless the Court deems a different sentence is appropriate and provides its reasons.
Full time imprisonment
Full time imprisonment is the most serious form of punishment imposed on any 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 offence and 5 years for multiple offences.
The Court may set a non-parole period depending on the structure and length of the sentence.
Intensive corrections orders
A Court that has sentenced an offender to imprisonment in respect of one or more offences may impose an Intensive Correction Order (ICO) directing that the sentence be served by way of intensive correction in the community.
An Intensive Correction Order (ICO) can only be imposed after consideration of what is referred to as the three-stage process which consist of:
- First, the Court must be satisfied that, having considered all possible 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.
When sentencing offenders for Domestic Violence offences, the Court must not direct that the sentence be served via an Intensive Correction Order (ICO) unless the Court is satisfied that the victim of the domestic violence offence or the person with whom the offender will reside will be adequately protected through imposition of conditions or otherwise.
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.
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 and 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.
The above should not be treated as legal advice but general information.
For a free consultation with a Criminal Lawyer in Sydney, call AMA Legal on (02) 8610 3764.
