An offender is sentenced after he or she has pleaded guilty to an offence or has been found guilty of the offence after a summary hearing in the Local Court or following a trial by judge alone or trial by jury in the District Court or the Supreme Court.
The Sentencing Regime from least restrictive to worst restrictive for NSW (as applied to adults) is as follows:
• Section 10(1)(a) & section 10(1)(c);
• Conditional Release Order (CRO) without conviction;
• Conditional Release Order (CRO) with conviction;
• Section 10A;
• A Fine;
• Community Correction Order (CCO);
• Deferral of sentence;
• Intensive Corrections Order (ICO) with a home detention condition available;
• Full-time Imprisonment.
Section 10 refers to a section of the Crimes (Sentencing and Procedure) Act which allows a magistrate to impose the following sentencing options:
Section 10A refers to a section of the Crimes (Sentencing and Procedure) Act which allows a magistrate to find a person guilty of an offence, record a conviction and order that the relevant charge is dismissed without further penalty.
Courts can use CROs to deal with first time and less serious offences where the offender is unlikely to present a risk to the community or re-offend. Offenders who are sentenced for offences such as driving while disqualified, first-time drink driving or low-level drug possession, may receive a CRO. The benefit of CROs is that the court will be able to impose conditions such as supervision, non-association requirements and place restrictions where appropriate. Courts will have the discretion to impose a conviction on a CRO if they consider it appropriate or not impose a conviction where they consider it appropriate. CROs will be able to be imposed for a period of up to two years. The CRO acts as a warning and diverts these less serious offenders out of the criminal justice system. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe. During supervision, Community correction officers will use cognitive and behavioural interventions to reduce the risk that the offender will return to crime.
Fines are at the lower end of the sentencing hierarchy and are the most common sentence imposed by NSW courts. When people are fined, they must pay a financial penalty (money) to the State of NSW. Fine amounts are described in penalty units. One penalty unit in NSW is $110.00. Fines imposed by the courts (for example, for offences such as theft or vandalism) differ from infringement penalties issued by bodies like local governments or NSW Police (for example, for parking infringements or minor driving offences). Judges and magistrates have some discretion to decide the amount of a court-imposed fine, but infringement penalties are set automatically. Fines are also collected and enforced differently than infringements. In deciding the amount of the fine, the court considers the financial circumstances of the offender (that is, how much the offender can afford to pay) and the maximum fine amount available to the court for the offence spelt out as penalty units in legislation. The court can combine fines with other sentences like imprisonment and CCOs.
Courts can use the CCO to punish offenders for crimes that do not warrant imprisonment or an Intensive Corrections Order (ICO) but are too serious to be dealt with by a fine or lower-level penalty. Offenders who are sentenced for offences such as property damage, drug possession, theft or common assault, may receive a CCO if the court decides it is appropriate. CCOs replace community service orders and good behaviour bonds. The benefit of CCOs is that they are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court will be able to select from the range of conditions, such as supervision by Community Corrections Officers, community service work and curfews, to ensure offenders are held accountable. CCOs will be able to be imposed for a period of up to three years.
Deferral of sentence for rehabilitation participation, intervention program or other purposes. The Court may, on application or on its own accord, adjourn any matter for a maximum of 12 months to assess an individual’s capacity for rehabilitation or to enable a rehabilitation or intervention program to occur.
An ICO is a custodial sentence of up two years that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. For an ICO supervision is mandatory. Courts can also add conditions to an ICO such as home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour. Community Corrections Officers have clearer authority to deal with breaches of conditions in real-time. For more serious breaches, offenders will continue to be referred to the State Parole Authority (SPA) and may be required to serve the remainder of their sentence in custody. The ICO is the most serious sentence that an offender can serve in the community. ICOs are not available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving the discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders. A domestic violence offender can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
If you are found suitable for an ICO an ICO can be made to fit your individual circumstances. An ICO must/will include at the very least 3 conditions:
• Not commit an offence;
• To be subject to a supervision condition; and
• One additional condition, that can include (but is not limited to) a curfew condition, a community service condition, an electronic monitoring condition and/or a rehabilitation condition.
Imprisonment or detention in a prison is the most severe sentence in NSW. NSW law treats full-time imprisonment as the sentence of ‘last resort’, meaning imprisonment should only be imposed if no other type of sentence is appropriate. When imposing a sentence of imprisonment over 6 months a judge or a magistrate will usually impose a non-parole period. There are rules about when a judge or a magistrate must impose a non-parole period, depending on the length of the sentence of imprisonment. The non-parole period is the minimum period that a judge or a magistrate thinks the offender must spend in custody for the crime, before being considered for release on parole.
Rep-Revive Criminal & Employment Lawyers® is fully versed with respect to the above-mentioned sentencing processes. For specific advice in relation to your sentence please contact Rep-Revive Criminal & Employment Lawyers®.