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Criminal Law » Sentencing and Defences » Sentencing Options

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Sentencing Options

Once a person is found guilty of an offence in NSW, the Court then considers the appropriate sentence to be imposed. This consideration is made taking into account the aggravating and mitigating circumstances of the offence, as well as the purposes of sentencing, which include:

  • Ensuring the offender is adequately punished for the offence,
  • Preventing crime by deterring the offender and other persons from committing similar offences
  • Protecting the community from the offender,
  • Promoting the rehabilitation of the offender,
  • Making the offender accountable for his or her actions,
  • To denounce the conduct of the offender, and
  • To recognise the harm done to the victim of the crime and the community.

These factors are all considered holistically by a magistrate or judge to determine the appropriate sentence for a particular offender.

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Avoiding a conviction

A Court can, following a finding of guilt, exercise its discretion and not record a conviction. This discretion can be utilised under the following sections of the Crimes (Sentencing Procedure) Act 1999:

  • Section 10(1)(a): where there is a finding of guilt, but the charge is dismissed without recording a conviction
  • Section 10(1)(b): where there is a finding of guilt, but the person is discharged under a conditional release order in accordance with section 9(2) of the Crimes (Sentencing Procedure) Act 1999
  • Section 10(1)(c): where there is a finding of guilt, but the person is discharged, without recording a conviction, on the condition that the person enter into an agreement to participate in an intervention program

For more information in relation to avoiding a conviction, click here: NO CONVICTION IN NSW.

Entering a conviction

However, if a Court is of the opinion that a conviction must be entered, then the Court determines the appropriate sentence.  In NSW, the following sentencing options are available:

  • Conviction with no penalty imposed, under section10A
  • Fine
  • Conditional Release Order, under section 9(1)(a)
  • Community Corrections Order, under section 8
  • Deferral of sentence for rehabilitation etc., under section 11
  • Intensive Corrections Order, under section 7
  • Section 8:
  • Deferral of sentence for rehabilitation etc., s.11
  • Full-time Imprisonment

Conviction with no penalty imposed  

This sentencing option involves a criminal conviction being recorded, but with no further penalty being imposed, for example a fine.

However, many driving offences will carry a disqualification period “upon conviction”. As section 10A involves a court entering a conviction, a disqualification period will therefore automatically attach to the sentence.

Fine

This sentencing option involves paying a monetary fine. The maximum fine that can be imposed for an offence is prescribed by a maximum number of penalty units. Each penalty unit amounts to $110. For example, Possess Prohibited Drug carries a maximum penalty of 220 penalty units, meaning the maximum fine that can be imposed is $2,200

Conditional Release Order

This sentencing option involves the court convicting the offender, however without imposing a period of imprisonment or a fine, discharging the person on a Conditional Release Order (CRO). A CRO will generally be imposed with a conviction, however the court does have a discretion to impose a CRO without recording a conviction.

A CRO will commence on the date on which it is made, and can be imposed for a period of up to 2 years.

The standard conditions of a CRO include:

  • The offender must not commit any offence, and
  • The offender must appear before the court if called on to do so at any time during the term of the CRO.

However, additional conditions can also be imposed by a Court at the time of sentence, or subsequently on the application of a community corrections officer or offender. The additional conditions include:

  • A condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • A condition requiring abstention from alcohol or drugs or both,
  • A non-association condition
  • A place restriction condition,
  • A supervision condition by a community corrections officer, or if the offender was under the age of 18 years when the condition
  • Any other condition that the court considers appropriate, but not including electronic monitoring or a curfew condition exceeding 12 hours in any period of 24 hours

For domestic violence offences, the Court must impose a supervised CRO unless the Court is satisfied that a different sentencing option is more appropriate in the circumstances.

If any of the imposed conditions are breached, a Court can call on the person to appear before a Court and resentence the person.

Deferral of Sentence

The deferral of a sentence under Section 11 of the Crimes (Sentencing Procedure) Act 1999 was previously known as a “Griffiths Remand”.  This typically involves the Court adjourning the proceedings for an extended period of time, the maximum period being 12 months, to allow the offender time to demonstrate rehabilitation.  Once the sentence is deferred under Section 11, the person enters into bail and is required to attend Court again on the adjourned date for the purposes of a final order being made.

Community Corrections Order

This sentencing option involves the court convicting the offender, however without imposing a period of imprisonment, the court will make a Community Correction Order (CCO). A CCO can be imposed in addition to a fine.

 A CCO will commence on the date on which it is made, and can be imposed for a period of up to 3 years.

The standard conditions of a CCO include:

  • The offender must not commit any offence, and
  • The offender must appear before the court if called on to do so at any time during the CCO

However, additional conditions can also be imposed by a Court, at the time of sentence, or subsequently on the application of a community corrections officer or offender. The additional conditions include:

  • A curfew condition imposing a specified curfew (not exceeding 12 hours in any period of 24 hours),
  • A community service work condition for a specified number of hours (not exceeding 500 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser),
  • A condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • An condition requiring abstention from alcohol or drugs or both
  • A non-association conditions
  • A place restriction condition prohibiting the frequenting of or visits to a particular place or area,
  • A supervision condition requiring the offender to submit to supervision by a community corrections officer or if the offender was under the age of 18 years when the condition was imposed, by a juvenile justice officer until the offender has reached that age. (the functions of a Community corrections officer can be exercised by a juvenile justice officer and vice versa – s 89(2A)
  • Any other condition that the court considers appropriate, but not including electronic monitoring or a curfew condition exceeding 12 hours in any period of 24 hours

For domestic violence offences, the Court must impose a supervised CRO unless the Court is satisfied that a different sentencing option is more appropriate in the circumstances.

If any of the imposed conditions are breached, a Court can call on the person to appear before a Court and resentence the person.

Intensive Correction Orders

This sentencing option involves the court convicting the offender and sentencing the offender to a period of imprisonment, however that period of imprisonment is served by way of an Intensive Corrections Order (ICO). An ICO therefore involves an offender serving their sentence of imprisonment in the community.

If a person has only one charge, then the maximum term of an ICO is 2 years. However, if a person has two or more charges, the ICO can be imposed for an aggregate sentence of up to 3 years.

Before a person can be sentenced to serve their period of imprisonment by way of an ICO, they must first be assessed as suitable in a report prepared by Community Corrections, unless the Court is satisfied that the existing information justifies the making of an ICO without a report.

When a Court considers whether to impose an ICO, there are two paramount considerations, in addition to the general sentencing principles:

  • Community safety, and
  • Whether making an ICO is more likely to address the risk of reoffending compared to full time custody.

The standard conditions of an ICO include:

  • A condition that the offender must not commit any offence, and
  • A condition that the offender must submit to supervision by a community corrections officer

There are a number of additional conditions can be imposed. At least one of these additional conditions must be imposed on an offender serving an ICO, unless there are exceptional circumstances. All additional conditions must be imposed at the time of sentence. However, the court has the power to limit the period during which an additional condition is in force. The additional conditions include:

  • A home detention condition
  • An electronic monitoring condition
  • A curfew condition imposing a specified curfew
  • A community service work condition (not exceeding 750 hours).
  • A condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • A condition requiring abstention from alcohol or drugs or both
  • A non-association conditions
  • A place restriction condition prohibiting the frequenting of or visits to a particular place or area
  • Any other condition the Court considers appropriate

An ICO is not available for certain offences, including:

  • Muder
  • A prescribed sexual offence
  • Terrorism offences
  • Offences relating to a contravention of a serious crime prevention order
  • Offences relating to a contravention of a public safety order
  • Offences relating to the discharge of a firearm
  • Offences relating to the intent to commit or attempt, conspiracy or incitement to commit any of the above.

For domestic violence offences, the court cannot impose an ICO unless the court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected.

If any of the imposed conditions are breached, a community corrections officer can do one of the following options:

  • Record the breach but take no action on the breach
  • Give an informal warning
  • Give a formal warning that a further breach will be referred to the parole authority
  • Give a reasonable direction relating to the breach behabiour
  • Impose a curfew of up to 12 hours
  • Refer the breach to the parole authority

If satisfied of the breach, a parole officer may:

  • Record the breach but take no action
  • Give an informal warning
  • Impose any condition on the ICO
  • Vary or revoke any conditions on the ICO
  • Make an order revoking the ICO

If the parole authority revokes an ICO, a warrant may be issued committing the offender to a correction centre to serve the remainder of the sentence by way of full time detention.

Full-time Imprisonment

The most severe punishment in NSW is a sentence of full-time imprisonment, where an offender is taken into custody and serves either part or all of their sentence in a correctional centre.

Depending on the length and structure of that sentence, the offender may be eligible for release on parole after serving a non-parole period.  Shorter sentences may not have a non-parole period, in which case the offender is required to serve the full term of imprisonment.