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 |
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Is it a sentence of imprisonment? |
Yes |
No |
No |
|
Is a conviction recorded? |
Yes |
Yes |
Discretion |
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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 |
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Single offence |
2 y |
3 y |
2 y |
|
Aggregate or accumulated total |
3 y |
n/a |
n/a |
Preconditions / Exclusions / Requirements |
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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: |
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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 |
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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 |
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ICO |
CCO |
CRO |
|
Crimes (Sentencing Procedure) Act 1999 |
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|
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 |
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What happens with multiple orders |
17E-17H |
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Domestic Violence Offenders |
4A, 4B |
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Conversion of existing sentences |
Schedule 2, Part 29, Clauses 71-78 |
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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) |
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|
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).
