Penalties

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How sentencing works

After you enter a plea of guilty, or you are found guilty of an offence following a hearing or trial, the magistrate or judge will determine the type of penalty that you will receive. This part of the court process is known as sentencing.

Courts aim to be fair and reasonable and will consider all the facts and circumstances of your case in determining your sentence. The magistrate or judge will usually aim to fulfill a goal through your sentence, such as ensuring that you are adequately punished for any wrongdoing, to protect the community, to promote your rehabilitation, to prevent future crime and so on.

Ultimately, the type of penalty that you will receive will depend on the facts and circumstances of your case. The types of penalties that may apply include:

Section 10(1)(a) Dismissals

Dismissals under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 – along with section 10(1)(c) bonds linked to ‘intervention programs’ – survived the state’s sentencing reforms which commenced on 24 September 2018.

A section 10(1)(a) dismissal is where a person pleads ‘guilty’ or is found ‘guilty’ of a criminal offence – including a ‘major traffic offence’ such as drink driving – but the court decides not to impose a criminal conviction (criminal record), fine, good behaviour bond or, in driving cases, licence disqualification.

It is considered to be the most lenient penalty for guilty persons.

What does section 10(1)(a) say?

Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives the court power to deal with ‘guilty’ persons by dismissing’ the charge/s completely.

The important thing is that there is no criminal conviction, no good behaviour bond, no fine and – in driving cases – no licence disqualification.

Who can get a section 10 dismissal?

Section 10 is available for all criminal charges and driving charges.

The court must consider the following matters when deciding whether to grant a section 10:

(a) the person’s character, antecedents (ie history), age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

Does the offence have to be ‘trivial’ to get a section 10 dismissal?

Not necessarily. Although someone is more likely to get a section 10 dismissal if the offence is ‘trivial’ (ie not serious), the cases make it clear the section can be used for very serious offences also.

What are ‘extenuating circumstances’?

An ‘extenuating circumstance’ is something out-of-the-ordinary that can partly explain why the offence was committed.

For example, in the case of R v Paris [2001], the defendant’s wife tormented and assaulted him before he ‘lost the plot’, grabbed a knife and committed offences against police.

Similarly, the defendant in the case of R v Piccin (No 2) [2001] had a terrible life whereby she lost her husband, was then ‘duped’ by a con-artist out of her home and two business and was then ‘dumped’ by her new partner (the man she assaulted).

Although such circumstances do not excuse the conduct, they can go some way towards explaining it and increasing the chances of a section 10 dismissal

How do I increase my chances of getting a section 10 dismissal?

Your chances of getting a section 10 dismissal are better if you provide the court with material showing that:

  • you are a person of good character, which can be done by preparing up to 3 character references (see character reference guide); and/or
  • the offence occurred during a difficult time in your life, which can be shown by preparing ‘written instructions’ for your lawyer (which is just a handwritten outline of the events leading up to the incident) which your lawyer can use when addressing the court, and/or
  • you have taken steps towards addressing any underlying issues, which can be done through attending counselling, attending a course (eg anger management, drug and alcohol etc) and/or seeing a psychologist / psychiatrist and having your lawyer obtain a report.

For driving offences, the chances of getting a section 10 dismissal are better if you complete a Traffic Offender Program.

An early plea of ‘guilty’ is also relevant as it shows that you quickly accepted responsibility and are remorseful.

If you are going to court and would like to arrange a free conference to discuss your options and the best way forward, call us today on (02) 9261 8881.

On 24 September 2018, conditional release orders replaced good behaviour bonds under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

Conditional release orders are a way for a person who pleads guilty or is found guilty of a criminal or major traffic offence to avoid a harsh penalty, or even a criminal conviction altogether, provided they comply with the conditions of the order.

How can I get a conditional release order?

The new law is contained in section 9 of the Act which states:

“9(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if:

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.”

This means a conditional release order is more likely where an offence less serious, there were reasons behind its commission and the defendant is otherwise a person of good character.

That said, conditional release orders are not restricted to specific categories of offences – rather, a court can order a CRO for any offence.

CROs cannot be made in the absence of the defendant.

What conditions can be placed on a conditional release order?

A CRO must contain the following conditions:

  • That the defendant not commit any further offences,
  • That the defendant must attend court if called upon to do so.

A person will only normally be called upon to attend court if he or she breaches the order.

Additional conditions that can be placed on a CRO are:

  • To participate in rehabilitation programs or receive treatments,
  • Abstain from alcohol, drugs or both,
  • Not associate with particular persons,
  • Not frequent or visit particular places,
  • Come under the supervision of community corrections officers or, in the case of young persons, juvenile justice officers.

A CRO cannot include:

  • A fine,
  • Home detention,
  • Electronic monitoring,
  • A curfew, or
  • Community service work.

Can conditions be changed?

The defendant or a community corrections officer can apply to a court to revoke, amend or add conditions to a CRO at any time after it is ordered.

However, the mandatory conditions must remain in place.

How long can a conditional release order last?

A CRO can last for up to two years.

What happens if I breach my conditional release order?

If it is suspected that a CRO condition has been breached, the defendant may be ordered to attend court to determine whether a breach has in fact occurred.

If a breach is established, the court may:

  • take no action
  • add, change or revoke conditions, or
  • revoke the CRO in its entirety.

If the CRO is revoked, the defendant will be resentenced for the original offence.

Fines can be imposed by themselves or as an additional penalty to any good behaviour bond, except for ‘section 10 bonds’ (see section 14 of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

So, for example, an offender may get a 2 year good behaviour bond and ordered to pay a $1000 fine.

Fines must usually be paid to the Court Registry within 28 days. However, if the offender is under financial hardship, he or she can ask the Court Registry to extend the payment period.

Fines can also be ordered as an additional or alternative penalty to imprisonment for any offence that is being dealt with on indictment (section 15).

In such cases, the fine cannot be more than 1000 penalty units (1 penalty unit is currently $110) (s15(2) & 17).

A fine can also be imposed in addition to or instead of any other penalty that may be imposed for an such an offence (eg community service, periodic detention, home detention etc) (s15(3)).

On 24 September 2018, community correction orders replaced good behaviour bonds under section 9 of the Crimes (Sentencing Procedure) Act 1999 and community service orders.

A community correction order can be thought of as a type of good behaviour bond with conditions, and is imposed in lieu of a prison sentence in New South Wales.

What are the conditions of a community correction order?

Community correction orders must contain the following ‘standard’ conditions:

  • The defendant must not commit any further offences, and
  • The defendant must attend court if called upon to do so.

A person will normally only be called to attend court if he or she breaches a condition of the order.

A court may also order that the defendant:

  • Be subject to a curfew not exceeding 12 hours in any 24 hour period,
  • Undertake community service work of up to 500 hours,
  • Participate in a rehabilitation program or receive treatment,
  • Abstain from alcohol and/or drugs,
  • Not associate with a particular person/s,
  • Not enter or frequent a particular place or area, and
  • Be supervised by community correction or, if under 18, by a juvenile justice officer.

A court cannot order community service unless it has obtained an assessment report regarding such a condition.

A court cannot order a CCO for a domestic violence offence unless it has considered the safety of the complainant.

Importantly, the court can limit the period that any additional condition applies; so, for example, a 3 year CCO may contain a curfew that lasts for only 3 months.

The following conditions cannot be included in a CCO:

  • Home detention,
  • Electronic monitoring, or
  • Curfew of more than 12 hours in any 24 hour period.

Can the conditions be changed?

The defendant or a community corrections officer can apply to a court to revoke, amend or add conditions to a CRO at any time after it is ordered.

However, the standard conditions must remain in place.

A community correction officer can suspend the supervision requirement or any curfew, non-association or place restriction conditions, whether unconditionally or subject to conditions.

How long can a community correction order last?

A CCO can last for up to three years.

What happens if I breach my community correction order?

If it is suspected that a CCO condition has been breached, the defendant may be ordered to attend court to determine whether a breach has in fact occurred.

If a breach is established, the court may:

  • take no action
  • add, change or revoke additional conditions, or
  • revoke the CCO in its entirety.

If the CCO is revoked, the defendant will be resentenced for the original offence.

On 24 September 2018, broadened intensive correction orders replaced suspended sentences, home detention and existing intensive correction orders in New South Wales.

An intensive correction order is an alternative to imprisonment, and can only be imposed after a court has determined that a prison sentence is appropriate.

Who is eligible for an intensive correction order?

There are certain rules a court must follow before imposing an intensive correction order.

The two year rule:

A court can only make an intensive correction order where it has imposed a prison terms of two years or less.

However, ICOs totally up to three years can be made where a person is being sentenced for multiple offences, each of which attracted prison terms of two year or less.

Community safety:

The ‘paramount consideration’ when deciding whether to impose an ICO is ‘community safety’, and a court must assess whether an ICO would be more likely to address the defendant’s risk of reoffending than full-time imprisonment.

Prescribed offences:

A court cannot impose an ICO for the following offences:

  • Murder or manslaughter,
  • Any ‘prescribed sexual offence’, which includes any sexual offence committed against a person under 16, or which includes an element of sexual intercourse, or any child pornography or child abuse material offence,
  • Any terrorism offence,
  • Any contravention of a serious crime prevention order or public safety order,
  • Any offence involving the discharge of a firearm, or
  • Any offences that includes an intention, attempt, conspiracy or incitement to commit any of the above offences.

Assessment report:

A court must order an assessment report before making an ICO.

It must have regard to the contents of the report, but is not bound by it.

A CCO cannot be imposed for a domestic violence offence unless the court has considered the safety of the complainant.

What are the conditions of an intensive correction order?

The standard (mandatory) conditions of an ICO are that:

  • the defendant must not commit any further offences, and
  • the defendant must submit to supervision by a community correction officer.

The court must impose at least one of the following additional conditions:

  • Home detention,
  • Electronic monitoring,
  • Curfew,
  • Community service work (up to 750 hours),
  • Participation in a rehabilitation program or acceptance of treatment,
  • Abstention from alcohol or drugs, or both,
  • Non-association with particular persons,
  • Prohibition from frequenting or visiting a place or area.

A court may at the time of sentencing impose any further conditions, as long as they are not inconsistent with the existing standard or additional conditions.

It may limit the duration of an additional condition; so, for example, it may prescribe a 6 month home detention condition when the duration of the ICO is 2 years.

Can conditions be changed?

The Parole Authority can impose, vary or revoke ICO conditions after the sentencing date upon application by a community corrections officer provided that a court could have done the same at the time of sentencing.

The Authority cannot, however, impose a home detention or community service condition unless it has received an assessment report by a community correction officer which states that such a condition is appropriate.

An ICO must always have at least one additional condition.

Can conditions be suspended?

A community correction officer can suspend the supervision condition and any additional conditions conditionally or unconditionally for a specific period or time or indefinitely.

How long can an intensive correction order last?

An ICO can last for up to 2 years.

What happens if I breach my intensive correction order?

If a community correction officer suspects a person of breaching an ICO, he or she can record the breach and:

  • take no action,
  • issue an informal warning,
  • issue an informal warning and advise that any further breach will result in referral to the Parole Authority,
  • issue a reasonable direction,
  • impose a curfew (of up to 12 hours in any 24 hour period),
  • refer the breach to the Parole Authority.

In the event the breach is referred to the Parole Authority, it may record the breach and:

  • take no action,
  • issue a formal warning,
  • impose additional condition/s,
  • change or revoke existing additional condition/s,
  • revoke the ICO.

If the ICO is revoked, the defendant will be ordered to serve the full sentence in prison.

Can I appeal a decision to revoke an intensive correction order?

The decision to revoke an ICO can be appealed to the Parole Authority.

However, this can only be done after the defendant has served at least one month in prison.

The appeal should outline any steps undertaken to ensure the ICO conditions will be complied with in the future.

The Parole Authority may order a further assessment report to determine whether the defendant is still suitable for an ICO.

If so, the Authority may release the defendant from custody under the ICO.

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