This advice intended to provide you with a brief explanation of the sentencing options available to the Court for State offences. This document is not intended to be a substitute for tailored legal advice
Introduction
During your Sentence Hearing, the Magistrate or Judge will consider the facts presented by the Police Prosecutor or Director of Public Prosecutions, and the submissions made by your lawyer when deciding the appropriate penalty to be imposed. The Magistrate or Judge can choose from a range of penalties depending on the seriousness of your offence. This document is aimed at providing a brief outline as to the sentencing options available to the court.
It is worth noting that the jurisdictional limit of the Local Court is a maximum of two years imprisonment for each offence and a maximum of five years in total for all offences.
It important to remember that in Australia, you are presumed to be innocent of the offences until proven guilty. This means that you do not have to prove that you did not commit the offences because you are presumed to be innocent until proven guilty. Put simply, the Police Prosecutor or Director of Public Prosecutions must prove each essential element required for each particular charge beyond a reasonable doubt. A suspicion that you may be guilty is not enough as it is a long way below the standard of beyond a reasonable doubt.
It is also worth noting that there is a benefit in pleading guilty at the earliest opportunity. In Australia, the law provides that a person who enters a plea of guilty in a timely fashion is entitled to a discount of up to 25% on the punishment that would otherwise be imposed. For indictable matters, the 25% discount starts to diminish from the committal date onward. Entering a plea of guilty is also likely to result in further discounts for contrition, remorse and prospects of rehabilitation.
PENALTIES
The courts have a variety of sentencing options, amongst them imprisonment. This document is aimed at providing general advice in respect to the penalties that a court may impose. It is important that you discuss your matter with your lawyer in person
As you may be aware, the Crimes (Sentencing Procedure) Act 1999 (NSW) is the relevant legislation in respect to sentencing offenders. It is worth noting that all Magistrates and Judges must take into account the purposes for which a court may impose a sentence
These purposes enshrined in Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and are as follows:
Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Dismissal without conviction
A Section 10(1)(a) dismissal essentially means that the court has found the offence proven however the charge is dismissed without proceeding to a conviction. This can occur notwithstanding the fact that you have pleaded guilty to the offence. If you receive this penalty, a criminal conviction will not be recorded because it is an outright dismissal.
This is the most lenient penalty.
Section 10(1)(b) & s9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Conditional Release Order without conviction – CRO
If a CRO is made under section 10(1)(b), then the court has found the offence proven however a conviction is not recorded. You will be placed on a conditional release order which is essentially a good behaviour bond. The length of the bond can be up to two years. The conditions of the bond are generally that you be of good behaviour, attend court when called upon to do so, notify the court of any change of address, and commit no further offences.
A CRO acts as a warning and it is intended for lowest level offending. Whilst you can receive a CRO for a fine only offence, you cannot receive both a fine and a CRO because a CRO is considered a lenient alternative to a fine.
A CRO consists of two ‘standard conditions’ namely, you must not commit any further offences and you must appear at court if called on to do so.
A CRO can also include any of the following conditions:
A breach of a CRO can be dealt with in one of three ways, namely, it can be revoked, varied or no action can be taken.
Section 10(1)(C) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Intervention Plan without conviction
If a Magistrate / Judge is satisfied that you would benefit from treatment and rehabilitation, then you could receive a penalty under section 10(1)(c) which means you would be required to enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of that program. This penalty is primarily aimed at reducing the likelihood of future offending behaviour by facilitating participation in intervention programs. If you receive this penalty, you would be required to comply with the program.
This penalty is only an option if the offences are either summary offences or indictable offences being dealt with summarily (i.e. you cannot receive this penalty if your case is in the District Court). There are also other specific offences which are exempt from this penalty (e.g. reckless grievous bodily harm or wounding, sexual assaults, stalk / intimidate, firearms offences, and drug supply).
The court has the option of adjourning your sentencing hearing to allow you time to be assessed for and /or participate in a program. This would occur only if you have already pleaded guilty and you have not already enrolled in a program.
Any non-compliance with the program would be reported to the Court Registry and, much like a breach of a CRO, you can be resentenced.
Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Conviction with no other penalty
If you receive a penalty under Section 10A, this essentially means that you are convicted of the offence however no other penalty is imposed. This penalty is available for circumstances where a court considers a CRO is inappropriate because an offence is not trivial and it is not pragmatic to impose any further penalty.
Fine
A fine may be imposed if the matter is not that serious. The amount of the fine cannot be greater than the maximum fine available for that particular offence. The Court will order that you pay any fine within 28 days. By law the court cannot give you more time to pay the fine, however you can make application to pay the fine by instalments.
If you are fined, this also means that a conviction will be recorded.
Section 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Conditional Release Order with conviction – CRO
If a CRO is made under section 9(1)(a), then the court has found you guilty of the offence and a conviction is recorded. Much like a CRO without a conviction, you will still be placed on a good behaviour bond but the main difference is that a conviction will remain on your record irrespective of whether you breach the CRO or not. Again, this outcome is available for fine only offences however you cannot receive both a fine and a CRO for the same offence.
Section 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Community Corrections Order with conviction – CCO
A Court is likely to impose a CCO if your offence does not warrant full time imprisonment or an Intensive Corrections Order but it is nonetheless too serious to be dealt with by a fine or CRO.
A CCO can be for a period of up to three years.
A CCO can be imposed in addition to a fine.
A conviction is inevitable.
A CCO cannot be imposed for a fine only offence.
The benefit of CCO’s is that they are a flexible sentence that the court can tailor to reflect your needs and the nature of the criminality.
A CCO consists of two ‘standard conditions’ namely, you must not commit any further offences and you must appear at court if called on to do so.
A CCO can also include any of the following conditions:
If a breach were to occur, then Community Corrections would file a ‘breach report’ with the sentencing court. The court may take no action; vary or revoke any conditions of the order (except for the standard conditions); or revoke the order. If the court revokes the order, then you may be resentenced for the offence to which the order relates in which case you would be likely to receive a harsher outcome. Alternatively, the Magistrate / Judge could add or vary the conditions rather than escalating to a heavier form of sentence. This means that courts can issue the same sentence order multiple times with different conditions, depending on the offence and your personal circumstances.
Section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Intensive Correction Order – ICO
An ICO is an order of imprisonment for not more than two years per offence which directs that the sentence is to be served by way of intensive correction in the community. You can receive an ICO of up to three years for multiple offences.
You must be supervised by Community Corrections.
An ICO consists of two ‘standard conditions’ namely, you must not commit any further offences and you must submit to the supervision by Community Corrections.
An ICO can also include any of the following conditions:
Essentially, ICOs place emphasis on control and surveillance while you essentially serve a period of imprisonment within the community. That is, the ICO is served in the community rather than in full-time custody in a correctional centre.
Failure to comply with an ICO may result in the Community Corrections Office (Probation & Parole) imposing harsher conditions or referring you to the State Parole Authority or the ICO may be revoked with the consequence that the sentence of imprisonment is served as full-time custody (i.e. prison). This means that, unlike a CRO or CCO, any breach of an ICO would be dealt with by the Commissioner of Corrective Services or the Parole Board and not by the courts.
Prison & Parole
Prison is the harshest penalty and is generally speaking self-explanatory.
Our goal is to not only achieve the best result but also ensure that you understand what can be realistically achieved during the course of your matter. We hope the above assists you throughout the progression of your case.
Community service has emerged as a significant alternative to traditional imprisonment, particularly for non-violent offenders.
This approach not only alleviates the burden on overcrowded prisons but also allows offenders to contribute positively to society. By engaging in community service, individuals can repay their debt to society while simultaneously developing a sense of responsibility and accountability.
This form of punishment is often viewed as more constructive than incarceration, as it encourages offenders to reflect on their actions and their impact on the community.
Offenders may be required to participate in various activities, such as cleaning public spaces, assisting in local charities, or helping vulnerable populations.
This not only aids in the rehabilitation of the offender but also fosters a sense of community spirit and cohesion. By participating in these activities, offenders can gain valuable skills and experiences that may assist them in reintegrating into society, ultimately reducing the likelihood of reoffending.
These measures allow offenders to serve their sentences while remaining in their homes, thereby maintaining family connections and employment opportunities. The use of electronic monitoring devices, such as ankle tags, enables authorities to track an offender’s movements and ensure compliance with the terms of their release.
This method not only serves as a deterrent but also provides a level of reassurance to the community. The benefits of electronic monitoring extend beyond mere surveillance; they also promote rehabilitation by allowing offenders to engage in work or educational opportunities. By remaining in their communities, individuals can access support networks that may aid in their reintegration process.
Furthermore, house arrest can significantly reduce the costs associated with imprisonment for both the government and taxpayers. As a result, this approach has garnered support from various stakeholders who recognise the potential for more humane and effective methods of dealing with offenders.
Rehabilitation and treatment programs are essential components of a progressive criminal justice system, particularly for non-violent offenders. These programs focus on addressing the underlying issues that may have contributed to an individual’s criminal behaviour, such as substance abuse, mental health disorders, or socio-economic factors. By providing targeted support and resources, these initiatives aim to reduce recidivism rates and promote long-term behavioural change.
In many cases, rehabilitation programs are designed to be holistic, incorporating various therapeutic approaches tailored to the specific needs of the offender. This may include counselling, group therapy, vocational training, or educational opportunities. By equipping individuals with the tools necessary to overcome their challenges, these programs foster personal growth and development.
Furthermore, successful rehabilitation not only benefits the individual but also contributes to safer communities by reducing the likelihood of reoffending.
Restorative justice practices represent a paradigm shift in how society addresses crime and its consequences. Rather than focusing solely on punishment, restorative justice emphasises repairing the harm caused by criminal behaviour through dialogue and mutual understanding between offenders and victims. This approach seeks to empower victims by giving them a voice in the process while encouraging offenders to take responsibility for their actions.
The restorative justice process often involves facilitated meetings where victims can express their feelings and experiences directly to the offender. This can lead to a greater understanding of the impact of the crime on the victim’s life and foster empathy within the offender. Additionally, restorative justice practices can result in agreements that outline reparative actions, such as community service or financial restitution.
By prioritising healing over punishment, restorative justice has the potential to create more meaningful outcomes for all parties involved.
Probation and parole serve as crucial alternatives to incarceration within the criminal justice system. Probation is typically granted as part of a sentence, allowing offenders to remain in the community under specific conditions while serving their time. Parole, on the other hand, is granted after an individual has served a portion of their prison sentence, allowing them to reintegrate into society under supervision.
Both options aim to balance public safety with the need for rehabilitation. The advantages of probation and parole are manifold. They enable offenders to maintain familial ties, pursue employment opportunities, and access support services that can aid in their rehabilitation journey.
Additionally, these alternatives help alleviate prison overcrowding and reduce costs associated with incarceration. However, it is essential that probation and parole systems are adequately resourced and monitored to ensure compliance with conditions and support successful reintegration into society.
By addressing underlying issues early on, diversion programmes can prevent further involvement in the criminal justice system.
Typically, diversion programmes involve a combination of education, counselling, and community service requirements tailored to the specific needs of the offender. Participants are often required to complete certain conditions within a specified timeframe, after which charges may be dismissed or expunged from their record.
Ultimately, diversion programmes represent a proactive approach to crime prevention that benefits both individuals and society as a whole. This approach not only reduces the burden on courts but also allows individuals to learn from their mistakes without facing long-term consequences that could hinder their future prospects.
In exploring alternatives to imprisonment for offenders in New South Wales, it is crucial to consider the broader context of how Australian law addresses various offences, including property damage. A pertinent article that discusses the legal ramifications of vandalism within Australia can be found at Jones Hardy Law. This article provides insight into how the legal system handles such offences, which could be considered when discussing alternative sentencing options. For more detailed information on this topic, you can read the article here.
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