Penalties in NSW

‘Full-time custody’ (also called ‘imprisonment’) means going to gaol without release for a certain period of time (eg 2 years).

Under the Act, a Judge should not sentence an offender to full-time prison custody unless – after considering all other alternatives – no other penalty is appropriate in the circumstances (section 5(1) of the Crimes (Sentencing Procedure) Act 1999).

When sentencing an offender to full-time custody, the Judge should set a full-term of the sentence (eg 8 years) and also a separate ‘non-parole period’ (which is the minimum term the offender must serve before being eligible for release; eg 6 years) (s44(1)).

The ‘non-parole period’ should not be less than three-quarters of the full-term of the sentence unless the Judge finds that there are ‘special circumstances’ justifying a reduction (s44(2)).

Despite what was just said, the Judge can refuse altogether to set a ‘non-parole period’ for any reason he or she considers ‘sufficient’ eg if the offence is especially serious, if the offender has a particularly bad criminal record, and so on (s45(1)).

In such cases, the Judge must record his or her reasons for not setting a ‘non-parole period’.

The Judge must not set a ‘non-parole period’ if the term of imprisonment is 6 months or less (s46).

In such cases, the Judge must explain the reasons for not imposing a penalty other than imprisonment (s5(2)).

In October 2010, the penalty of 'periodic detention' was abolished and replaced by 'intensive correction orders' (or 'ICO's).

In general terms, an ICO is where an offender is ordered to undertake 32 hours of community work per month for the period of the sentence and comply with a range of other requirements, which include:

• drug and alcohol testing,
• attending any required rehabilitation programs;
• face-to-face conferences with a Corrections Services Supervisor, and in some cases
• a curfew and electronic monitoring (anklet).

An ICO can only be ordered if a court sentences an offender to a period of imprisonment of 2 years or less (s7).

The offender must be suitable for an ICO, which means he/she must be over 18, must be found to be a 'suitable person' and such an order must be 'appropriate in all of the circumstances' (s67).

To determine whether an offender is 'suitable' the court can order an assessment report from Corrections NSW (s69).
 
ICO's are not available for certain sexual offences (s66).

In general terms, home detention is where an offender is required to remain inside a specific private residence (eg their home or their parents’ home) at such times and under such conditions as may be imposed by the Court.

Under section 76 of the Act, a Judge cannot order home detention for the following offences:

• murder, attempted murder or manslaughter (ss(a));
• sexual assault (ss(b));
• armed robbery (ss(c));
• any offence using a firearm (ss(d));
• any assault involving actual bodily harm or more serious harm (ss(e));
• any offence under s562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(f));
• domestic violence against a person who the offender would likely reside if a home detention order were made (ss(g);
• drug offences under ss23(2) & (3), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited substance (ss(h)); or
• any offence under the regulations of the Act.

In addition, the Judge cannot order home detention if the offender:

• has previously been convicted of murder, attempted murder, manslaughter or sexual assault (s77(a));
• has previously been convicted under section 562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(b));
• has been convicted within the previous 5 years of domestic violence against a person who the offender would likely reside if a home detention order were made (ss(c));
• has been convicted of any offence under the regulations of the Act (ss(d)); or
• is or has within the last 5 years been subject to an apprehended violence order made to protect a person with whom the offender would likely reside if the home detention order were made (ss(e)).

If the offender is not excluded by the above rules, the Judge can make a home detention order if ‘satisfied’ that:

• the offender is a ‘suitable person’ (s78(1)(a);
• such a sentence is ‘appropriate in all the circumstances’ (ss(b));
• the persons with whom the offender will reside have consented in writing (ss(c));
• the offender has signed an undertaking to comply with the home detention order (ss(d)).

In deciding whether or not to make such an order, the Judge must consider:

• the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s78(2)(a)); and
• any evidence given by a probation and parole officer (ss(b))

The Judge can ‘impose such conditions as… [he or she] considers appropriate on any home detention order’ except conditions requiring the offender to pay money (s82(1)).

Such conditions may include requirements relating to employment (eg that the offender can only work outside the home within certain hours etc; ss(2)(a)), requirements to perform community service (ss(b), and so on.

When imposing a home detention order, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s83(1)(a)) and the consequences of breaching the order (ss(b)).

Community service is where an offender is required to perform a specific number of hours of work for the community; up to a maximum of 500 hours (section 8).

Under section 86 of the Act, a community service order can only be made if the Judge is ‘satisfied’ that:

• the offender is a ‘suitable person’ (s86(1)(a));
• such a sentence is ‘appropriate in all the circumstances’ (ss(b));
• arrangements exist, and work community service work is available, in the offender’s area (ss(c) & (d));
• the offender has signed an undertaking to comply with the home detention order (ss(e)).

In deciding whether or not to make such an order, the Judge must consider:

• the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s86(2)(a)); and
• any evidence given by a probation and parole officer (ss(b)).

Before the Judge sentences the offender to community service, he or she may refer the offender to the Probation and Parole Service (the ‘PPS’) for assessment of the offender’s suitability for such a sentence (s88).

If the Judge does this, the PPS must investigate the offender’s suitability and prepare a report for the Judge (s89).

The Judge can ‘impose such conditions as… [he or she] considers appropriate on any community service order’ except conditions requiring the offender to pay money (s90(1)).

Such conditions may require that the offender ‘participate in development programs’ (eg drug & alcohol program) (ss(2)(a), ‘undergo testing or assessment for alcohol or drug use’ (ss(b)), and so on.

Any order for a ‘development program’ cannot, however, require the offender to attend more than 3 times a week (ss(3)(a)), or for more than 15 hours per week (ss(b)), or for a total of more than 20 hours (ss(c)).

A community service order may recommend the removal of graffiti from, or restoration of, buildings, vehicles, vessels or places (s91).

When imposing a community service order, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s90(1)(a)) and the consequences of breaching the order (ss(b)).

Soon after imposing a community service order, the Court must send the offender details of the order eg where and when he or she must report for service (eg to the Probation and Parole Service within 7 days) (s93).

A good behaviour bond is where an offender is ordered to be of ‘good behaviour’ for a specific period of time; up to a maximum of 5 years (section 9).

Under section 95 of the Act, a good behaviour bond:

• must require the offender to appear before the Court if called to do so during the term of the bond (ss(a));
• must require the offender to be of ‘good behaviour’ (ss(b)); and
• may contain other conditions, but must not require the offender to perform community service or to pay money (ss(c)).

Such conditions may prevent the offender from associating with specific persons (other than close family members) (s100A(a); 100A(3)) or from going to certain places or districts (except for the offender’s place of residence, the offender’s close family’s place of residence, the offender’s workplace, the offender’s educational institution or the offender’s place of worship) (s100A(2)).

Any breach of a good behaviour bond may result in the offender being brought before a Court (s98(1)) and the bond being varied or revoked (cancelled) (ss(2) & (3)).

If that occurs, the Judge may re-sentence the offender to a term of imprisonment or another penalty eg periodic detention or home detention (s99).

If the offender breaches an order not to associate with specific persons or go to certain places, he or she may get up to an additional 6 months in gaol and/or be fined 10 penalty points.

When imposing a good behaviour bond, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s96(1)(a)) and the consequences of breaching the order (ss(b)).

Section 10 of the Act provides that, where an offender is guilty of an offence (whether pleads guilty or is found guilty), the Judge may nevertheless decide not to convict the offender and, instead, either:

• dismiss the charges unconditionally (ss(1)(a)), or
• discharge the offender on the condition that he or she enters a good behaviour bond not exceeding 2 years (ss(b)).

Importantly, no conviction is recorded in either case; in other words, the offender does not get a ‘criminal record’ for the offence. Such a lenient order can only be made if:

• it is ‘inexpedient’ to inflict punishment; in other words, there is no real advantage or benefit in punishing the offender (ss(2)(a)); or
• it is ‘expedient’ to release the offender on a good behaviour bond (ss(b)).

In deciding whether to grant a ‘section 10 bond’, the Judge must consider:

• the offender’s ‘personal character, antecedents… [ie history] age, health and mental condition’ (ss(3)(a));
• ‘the trivial nature of the offence’ (ss(b));
• any ‘extenuating circumstances’; in other words, things that may explain the offence eg speeding to get an injured friend to hospital etc (ss(c)); and
• ‘any other matter that the court thinks proper to consider’ (ss(d)).

An offender given a ‘section 10 bond’ may still, however, be ordered to pay for, deliver or restore stolen property (ss(4)(a) & (c)) and/or to pay compensation to a victim of his or her crime (ss(b)).

Community Service and Good Behaviour Bonds to be alternative penalties only:
Section 13 of the Act says that an offender cannot get both community service and a good behaviour bond for the same offence; they are alternative penalties only.

Where an offender is sentenced to full-time imprisonment for 2 years or less, the Judge may order that the sentence be ‘suspended’; in other words, that the offender be released from custody and enter a good behaviour bond for the term of the sentence (section 12).

For example, if an offender gets 18 months in gaol for ‘malicious wounding’, the Judge may decide not to send the offender to gaol and instead release him or her on an 18 month good behaviour bond.

However, if the offender breaches that good behaviour bond, he or she will be brought before the Court and will normally be ordered to serve the remaining time in gaol.

Suspended sentences are usually only available where there are several good reasons not to send the offender to gaol eg there is a very good explanation for the offence, the offender has taken steps not to offend again (eg drug addiction was a cause of the crime & the offender has voluntarily entered a drug rehabilitation program), there are kids to looks after, etc.

Fines can be imposed as an additional penalty to any good behaviour bond except for ‘section 10 bonds’ (section 14).

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)).

If you are facing a criminal charge or a sentencing, you should contact Accredited Criminal Lawyers such as Sydney Criminal Lawyers to assist you. 

Sydney Criminal Lawyers can:

• advise you of your rights;
• explain the charges against you;
• explain your alternatives and likely outcomes (eg possible penalties);
• make a bail application for you in Court (if you are refused bail by police);
• represent you in Court.