Major Changes to NSW Sentencing Law

Proposed Legislation

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53 will make substantial amendments to the Crimes (Sentencing Procedure) Act 1999 [“the Act”] and is scheduled to be proclaimed in about May 2018.

 Gloss Overview

1.  Abolition of Good Behaviour Bonds (s9) AND replacement with Conditional Release Orders (“CRO’s”) OR Community Corrections Orders (“CCO’s”) and consequences of breach;
2. Abolition of non-conviction bonds AND replacement with Conditional Release Orders (“CRO’s”) and consequences of breach.
3. Introduction of Sentencing Procedure for Conditional Release Orders [new Part 8]
4. Introduction of Sentencing Procedures for Community Correction Orders [new part 7];
5. Abolition of Suspended sentences (s.12) and Home Detention Orders AND replacement with revised Intensive Correction Orders (“ICO’s);
6. Introduction of Sentencing Procedures for Intensive Corrections Orders [new Part 5] and consequences of breach;
7. New provisions for Assessment Reports – for ICO’s [new Division 4B];
8. New sentencing regime for Domestic Violence Offences [new s.4A]; and
9. Consequences of the new legislation to existing Sentencing Orders.

 

Dot point effect of the Abolition of s.9 Bonds and non-conviction Bonds

1.  The former good behaviour bonds are abolished.
2. A CRO may be with OR without conviction.
3. If the court does not “convict” then the offender will be discharged under s.10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999.
4. Otherwise, either a CRO will be made under s.9 or a CCO under s.8.
5. The court cannot impose both a fine and a conditional release order in respect of the same offence.
6. A conditional release order under s.9 [with conviction] may be made as an alternative to the imposition of a fine.
7. The maximum term of a CRO is 2 years.
8. There are standard conditions for a CRO’s: s.98; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit – s.100 (1)]; and may vary or revoke any of the additional conditions: ss.99-99A; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day or a community service work condition: s.99 (3).
9. The court is to take into account the same factors in determining whether to proceed by way of a conviction [under s.9] or without conviction [under s.10 (1) (b)].
10. It would appear that the conditional release order may be conditional on the same sort of terms previously imposed by courts under the former s.9.
11. The footnote to s.97 states that breaches of CRO’s are to be dealt with under s.108 C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed] [“the Administration Act’], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
12. The effect of revocation of a CRO [s.108 D] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty.
13. The maximum term of a CCO is 3 years: s.85 (2).
14. There are standard conditions for a CCO: s. 88; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit]; and the court may vary or revoke any of the additional conditions: ss.89-90; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day: s.89 (3)
15. Breaches of CCO’s are to be dealt with under s.107C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
16. The effect of revocation of a CCO [s.107 C Administration Act] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty: s. 107 D Administration Act.

Abolition of s.12 Bonds (suspended sentences) and Replacement with Intensive Corrections Orders [ICO’S]

Procedure and effect of Breach of ICO

 If the Commissioner or a community corrections officer is satisfied that an offender has failed to comply with any of his/her obligations under the ICO, the officer may do any of the following:

1. record the breach and take no further action;
2. give an informal warning to the offender;
3. give, or arrange to be given to, the offender a formal warning that further breaches will result in referral to the Parole Authority;
4. give a reasonable direction to the offender relating to the kind of behaviour by the offender that caused the breach;
5. impose a curfew on the offender of up to 12 hours in any 24-hour period.

[s 163 (2) of the Administration Act]

Alternatively, or in addition, to taking any such action, the Commissioner or a community corrections officer may decide to refer the breach to the Parole Authority because of the serious nature of the breach and may also make a recommendation as to the action that the Parole Authority may take in respect of the offender: s.163 (3) of the Administration Act.

 Assessment Reports [relevant to ICO’s and CCO’s]

 Division 4B makes new provisions for Assessment Reports and that Division is reproduced for convenience:

New Sentencing Regime for Domestic Violence Offences

 Part 2, s.4 of the Act introduces a new regime for domestic violence offenders:

Part 2 – Penalties that may be imposed

Division 1 – General

 4 Penalties generally

4A Domestic violence offenders–requirement for full-time detention or supervision

1. If a court finds a person guilty of a domestic violence offence, the court must impose on the person either:
   (a)       a sentence of full-time detention, or
   (b)       a supervised order.
2. However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
3. For the purposes of this section, a “supervised order” is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.

4B Domestic violence offenders–protection and safety of victims

1. An intensive correction order must not be made in respect of:

(a)  a sentence of imprisonment for a domestic violence offence, or

(b)  an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,

unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).

2. If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

3. Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.

Please get in touch with us to learn more about criminal law and how the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 may affect you.