Australia: New sentencing laws in NSW – practical information for criminal lawyers and their clients

Last Updated: 31 October 2018
Article by Mark Warren

The new sentencing laws in NSW came into force in September 2018 and criminal lawyers and their clients have already had to grapple with the new terminology and sentencing options in court.

Here is a summary of the changes made by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (CSP Amendment Act) and some practical information on how these changes affect the practices of criminal lawyers who are defending clients in court.

As well as these changes there is now a presumption of full-time custody or a supervised order for offenders found guilty of a domestic violence offence.

The author wishes to acknowledge the valuable contribution of Legal Aid NSW in providing information contained in this article.

Changes designed to reduce reoffending and incarceration rates

The main thrust of the changes is "to improve the availability and nature of community-based sentencing options". To achieve this, Community Corrections (formerly Probation and Parole) has been given extra resources to provide more supervision to offenders in the community.

The aims of this new community-based scheme are to:

  • Protect the community by reducing reoffending
  • Reduce the number of people receiving short prison sentences
  • Get more offenders on community-based supervised orders (with conditions) to help address their offending behaviour

Alarming growth of prison population in NSW

The move to more community-based sentencing is in response to the massive increase in prisoner numbers in recent times.

In NSW the prison population has risen by an incredible 40 per cent in the last six years and is expected to reach 14,200 by the middle of 2019. (See the Bureau of Crime Statistics and Research (BOCSAR) report, New South Wales Custody Statistics, Quarterly Update, June 2018.)

Community-based sentences more effective and cheaper than short term gaol sentences

Questions have also been raised as to whether short term gaol sentences actually reduce the risk of reoffending.

BOCSAR research has shown that offenders who receive community-based sentences like Intensive Correction Orders (ICO) are less likely to reoffend than those people who have been sentenced to a short term in prison. (See Intensive correction orders versus short prison sentence: A comparison of re-offending.)

Added to this is the cost of keeping someone in custody, which works out at $292.51 a day, versus $28.75 per day for someone on a community-based order.

The other advantage of community-based sentencing is that the offender can be subject to supervised conditions that address their offending behaviour, such as drug and alcohol treatment, education, training and other counselling and support.

What's gone in the new scheme

  • Home detention
  • Suspended sentence (section 12)
  • Community service orders
  • Section 9 good behaviour bonds
  • Section 10 (1) (b) non-conviction bonds

What remains in the new sentencing laws

  • Section 10 (1) (a) non-conviction dismissal
  • Section 10 (1) (c) non-conviction bond to enter intervention program
  • Section 10A conviction with no further penalty
  • Fines
  • Section 11 deferral of sentence for rehabilitation
  • Expanded Intensive Correction Orders

What's new in the NSW sentencing laws

  • Conditional Release Orders (CRO) with or without conviction
  • Community Correction Orders (CCO)

As a rule of thumb the CRO replaces the old section 10 (1) (b), but the court can also impose a CRO with conviction.

The CCO replaces the section 9 good behaviour bond and sits between the CRO and ICO in the sentencing hierarchy, with the CRO being the most lenient option.

Conditions of CCO and CRO

The CRO has two standard conditions, which are that the offender must not commit any offence during the order and must appear before the court if called upon to do so. The court can impose additional conditions (section 99 CSP Amended Act).

CCO has the same standard conditions as CRO, as well as additional conditions (section 89 CSP Amended Act).

Additional conditions can include curfews (only for CCO), community service work (only for CCO), abstaining from drugs or alcohol, entering rehabilitation or treatment, place restrictions, non-association with certain people and supervision.

Ultimately the court can impose any conditions which it thinks are appropriate (within limits).

Breaches of court orders under the new sentencing laws

Community Corrections now have the power to deal with minor breaches without filing a breach notice in court.

If a breach notice is filed for a CRO or CCO the procedure is much the same as before. The court may call up the offender to appear in relation to the breach and may take no action, vary or revoke the conditions, or revoke the order and resentence the offender.

When resentencing the court can increase the severity of the order by imposing more conditions.

Importantly, the court can issue the same order multiple times with different conditions without stepping up the penalty to the next level in the sentencing hierarchy.

Intensive Correction Orders (ICO)

Intensive Correction Orders have been overhauled under the new system and can be imposed for up to three years.

Supervision is a mandatory condition, while home detention and community service work are now discretionary. Community service work can be up to 750 hours.

Community safety is the main consideration when a court considers an ICO. Section 66 (2) states that the court must also decide whether full time custody or an ICO is more likely to address the offender's risk of reoffending.

The two standard conditions for the ICO are that the offender must not commit any offence and that they submit to supervision by Community Corrections.

Additional conditions include those mentioned above for CCOs and also include electronic monitoring.

ICOs are not available for domestic violence offenders unless the court can be satisfied that the victim or anyone who would reside with the offender is adequately protected (section 4B (1)).

Community Corrections have the power to deal with breaches of ICOs and have a variety of options, including taking no action, warning the offender, imposing a curfew or referring the breach to the State Parole Authority if it is serious.

Sentencing reports

Sentencing reports are now referred to as Sentence Assessment Reports (SAR). They provide sentencing and condition options for the court to consider. They can be general assessment reports or focused on the imposition of one specific condition. Duty reports will still be available.

Domestic violence offences under the new sentencing laws

There is now a presumption of full-time imprisonment or a supervised order for domestic violence offences under section 4A (1).

As well, the court has to consider the safety of the victim of domestic violence before making a CCO or CRO. Safety of the victim or anyone else who may live with the offender is considered paramount.

Research has found that many domestic violence offenders were given section 9 good behaviour bonds with no supervision. The new system addresses this by ensuring that such offenders are supervised, and their offending behaviour addressed by appropriate conditions.

Practical tips for criminal lawyers and their clients

  • The main area of change is that criminal lawyers representing clients in drink driving matters or less serious criminal matters need to seek a CRO without conviction, instead of a section 10 (1) (b) under the old scheme. It's a change in terminology but the factors that need to be addressed are much the same as before.
  • Lawyers can suggest further conditions on a CRO if it gives the client a better chance of avoiding a conviction.
  • Lawyers need to advise AVO and domestic violence clients about the presumption of full-time custody or a supervised order if they are found guilty of a domestic violence offence.
  • "Experienced" clients need to be reminded by their lawyers that the old section 12 suspended sentences are gone and they can no longer rely on these to avoid a possible gaol sentence.
  • Lawyers need to argue strongly against the section 5 ( Crimes (Sentencing Procedure) Act 1999) threshold being met – that is, fight to keep the client out of gaol by arguing in court that there are now alternatives to full time custody which are community-based and which can be just as onerous as any gaol sentence.
  • Clients need to be encouraged by their lawyer to engage with Community Corrections and to take advantage of any help, support and treatment they can offer. They now have the resources to assist.
Mark Warren
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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