Update on NSW Sentencing Laws

NSW sentencing laws  are proposed to change significantly under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) (“the Act”).

Update July 2018 – The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the amending Act”) introduced new committal proceedings, compulsory case conferences and a fixed guilty plea discount scheme for indictable offences.It commenced on 30 April 2018. Three consequential regulation amendments commenced on the same day: Children (Criminal Proceedings) Amendment (Committals and Guilty Pleas) Regulation 2018; Crimes (Sentencing Procedure) Amendment (Guilty Pleas) Regulation 2018; Criminal Procedure Amendment (Committals and Guilty Pleas) Regulation 2018.

Details of the process of the new committal proceedings are outlined in this blog from Turnbull Hill Lawyers.  Details on the new ‘early guilty plea’ scheme can be found in this Justice NSW blog. 

The Act was assented to on 24 October 2017, but has not yet been proclaimed.  Its amendments are expected to be added to the Crimes (Sentencing Procedure) Act 1999 in May 2018.  The Act makes changes to sentencing laws in New South Wales and specifically abolishes laws which provide for bonds and suspended sentences. The amendments provide for the option of increased supervision of offenders released into the community.

There are three forms of new sentencing procedures that will apply under the Act.  These are an Intensive Correction Order, which provides the most serious conditions a court may apply, apart from incarceration, the less onerous Community Correction Order and  a Community Release Order, which provides the option for the charges to be dismissed.

In short, sentencing law will change as follows:

1. Bonds under section 10 of the Crimes (Sentencing Procedure) Act 1999 will be abolished and will be replaced with a conditional release order (“CRO”).  Previously a section 10 bond allowed a court, after a finding of guilt, to dismiss charges without a conviction being recorded.  This option was useful in cases where the Court determined that the imposition of a conviction could cause serious implications as to the offender’s character.
2. A CRO will again allow the Court to decide against a conviction and to grant a CRO instead.  It can be in place for up to 2 years.  It must include conditions that the offender not commit an offence and that they must appear before the Court if called on to do so.  Additional conditions may also be imposed and a conviction can be recorded, if the Court thinks it appropriate.
3. A Community Correction Order (“CCO”) will replace community service orders and good behaviour bonds under section 9 of the Crimes (Sentencing Procedure) Act 1999. Section 9 bonds were able to be imposed with or without a conviction being recorded and required the offender to be of good behaviour for up to five years.
4. A CCO may be imposed for up to 3 years and must include conditions that the offender not commit an offence and that they must appear before the Court if called on to do so. In addition, conditions can include that a curfew be imposed, that community service work be undertaken or that the offender refrain from taking drugs and alcohol.  
5. Intensive correction orders (“ICO”), which already exist, will be strengthened and will replace suspended sentences and home detention orders.  ICOs may be applied to one offence, where the imprisonment imposed is less than 2 years or to multiple offences where the imprisonment imposed is at total of no more than 3 years.  
6. The legislation indicates that the paramount consideration for the court in deciding whether a ICO should be applied must be community safety.  Standard conditions for a ICO will include that the offender not commit an offence, whilst under the ICO and that they be subject to the supervision of a community corrections officer.  Each ICO must also include an additional condition, which can include that the offender be subject to electronic monitoring, home detention, a curfew or undergo rehabilitation.  
7. ICOs cannot be ordered for serious offences, such as terrorism offences, particular sexual offences or discharging a firearm. Minor breaches of an ICO can be dealt with by a community corrections officer and more serious breaches referred to the State Parole Authority.
8. There are similarities to the conditions that can be imposed for a CCO, an ICO and a CRO, but some differences are, for example that:

(i) a CRO does not allow the imposition of a community work order, home detention, electronic monitoring or a curfew;

(ii) a CCO does not allow the imposition of a home detention condition, electronic monitoring or a curfew that is longer than 12 hours in a 24 hour period;

(ii) under their standard conditions, a CCO and a CRO require the offender to appear before the Court if called upon.  The standard condition of an ICO requires the offender to be subject to the supervision of a community corrections officer.

9. The courts are able to request an assessment report from a community corrections officer or a juvenile justice officer to assist in their determination of the appropriate sentence and/or the conditions to be placed on the offender for that sentence.  If the Court decides that it will likely impose a ICO, it must not do so before obtaining an assessment report.  An assessment report is also required if a community service work condition is proposed under  a CCO.
10. If a court finds a person guilty of a domestic violence offence, it must (unless giving reasons why) impose a sentence of full-time detention or include in a CRO, CCO or ISO a condition that includes supervision by a community corrections officer or a juvenile justice officer (if under the age if 18 year).  
11. Before making a CRO or a CCO for a domestic violence offence, the Court must consider the safety of the victim of the offence.  ICOs may only be imposed for domestic violence offences if the Court is satisfied that the victim of the offence will be adequately protected.  A home detention condition cannot be applied if the court reasonably believes that the offender will reside with the victim.