This is a further update on the new NSW criminal sentencing  legislation – effective the 24 September 2018.  For details of the overall new sentencing framework please see our previous post on the introduction of the new legislation for an overview.

Knowing the law is fundamental to the maintenance of the stability of the rule of law in Australia and allows Australians to be aware of their rights and responsibilities under the law.

The Institute is grateful for the assistance of members of the legal profession and  judiciary in assisting us in providing update on the impact of changes in legislation.

The below information is provided by Hilary Kincaid, the Principal Solicitor of the Inner City Legal Centre  who has kindly made it available to assist teachers, students and interested community members.

The key parts:

  • suspended sentences will be abolished (this isn’t the first time NSW has done this – suspended sentences were previously abolished from 1974-2000);
  • section 10(1)(b) bonds will be abolished and replaced with a Conditional Release Order without conviction;
  • section 10(1)(a) dismissal and section 10(1)(c) diversion will remain;
  • section 9 bonds will be abolished in favour of a Community Corrections Order or a Conditional Release Order with conviction.

 

The new sentencing legislation: Intensive Correction Orders (ICO), Community Correction Orders (CCO); Conditional Release Orders (CRO)

Overview

ICO

CCO

CRO

General

Is it a sentence of imprisonment?

Yes

No

No

Is a conviction recorded?

Yes

Yes

Discretion

Is a future start date possible?

Yes1

No

No

Is a fine in addition possible?

Yes

Yes

No

Breaches & condition variations dealt with by:

SPA2

Court

Court

Maximum length

Single offence

2 y

3 y

2 y

Aggregate or accumulated total

3 y

n/a

n/a

Preconditions / Exclusions / Requirements

Prerequisite: sentenced to imprisonment

Yes

No

No

At least one additional condition required

Yes3

No

No

Offenders under 18 y.o. excluded

Yes4

No

No

Particular offences excluded

Yes

No

No

Must live in NSW or approved jurisdiction

Yes

Depends5

Depends5

Restrictions for domestic violence offences

Yes

No6

No6

Report required:

for making a general order

Usually7

No

No

for Home Detention

Yes8

n/a

n/a

for Community Service Work

Yes

Yes

n/a

Additional conditions available

Supervision

(Standard)

Yes5

Yes5

Home Detention (only if suitable)

Yes

No

No

Electronic Monitoring

Yes

No

No

Curfew

Yes

Yes (12/24hr)

No

Community Service Work (only if suitable)

Yes9 (750hrs)

Yes9 (500hrs)

No

Alcohol/Drug Abstention

Yes

Yes

Yes

Non-association

Yes

Yes

Yes

Place restriction

Yes

Yes

Yes

Program/treatment

Yes

Yes

Yes

1 But only if accumulated upon another sentence being served by ICO ( s71) – and subject to the overall length limit of 3 years.

2 The State Parole Authority

3 At least one additional condition must be imposed, unless there is a finding of exceptional circumstances (s73A(1) and (1A)).

4 s7(3): “an offender who is under the age of 18 years”. This probably means age at time of sentence not offence but it is not clear.

5 Supervision is subject to the offender living in NSW or an approved jurisdiction. For Community Service Work  on a CCO see note 9. 6 While there are no restrictions as such, the court must generally impose supervision (s4A) and must consider the safety of the victim before making an order (s4B(3)).

7 General rule (s17D(1)): a court must not make an ICO without an assessment report. Exception (s17D(1A): if satisfied that it has sufficient information to justify making an ICO without a report.

8 The Home Detention assessment must be ordered after the term of the sentence of imprisonment has been set.

9 Community Service Work is subject to the offender living in NSW or an approved jurisdiction or satisfying the court that they are willing and able to travel to NSW to undertake the work. Offenders who were under 18 at the time of the offence and under 21 at the time of sentence cannot get CSW on a CCO (s8(2)). However, it seems there is no such restriction on CSW on an ICO for such an offender.

Navigating the legislation

ICO

CCO

CRO

Crimes (Sentencing Procedure) Act 1999

Power to impose

7; 66

8

9

Maximum term

68

85

95

Procedures and restrictions generally

64-73B

84-91

94-100

Restrictions for particular offences

67

–

–

Standard Conditions (mandatory)

73

88

98

Additional Conditions (optional statutory)

73A

89

99

Further Conditions (optional tailored to offender)

73B

90

99A

Court varying conditions after sentence

–

89-91

99-100

Discretion not to proceed to conviction

–

–

9(2); 10(1)(b)

Reports and when they are required

17B-17D

What happens with multiple orders

17E-17H

Domestic Violence Offenders

4A, 4B

Conversion of existing sentences

Schedule 2, Part 29, Clauses 71-78

Crimes (Administration of Sentences) Act 1999

ICO

CCO

CRO

SPA varying conditions after sentence

81

–

–

Breach proceedings

162-164A

107C-D

108C-D

What happens to existing sentences from commencement (24 September 2018)

Existing Sentence

Converts to

ICO

new ICO

HDO

ICO with Home Detention condition

CSO

CCO with Community Service Work condition

s9 bond

CCO

s10(1)(b) bond

CRO

s12 bond (suspended sentence)

# Stands, but if revoked new ICO or gaol

Act and Regulations

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 

Crimes (Sentencing Procedure) Regulation 2017

Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018

Crimes (Administration of Sentences) Regulation 2014

Helpful cases and references

R v Pogson (2012) 82 NSWLR 60

Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308

DPP (NSW) v Jones [2017] NSWCCA 164

New South Wales Law Reform Commission, Sentencing, Report 139 (2013).