Criminal Law Sentencing Options in NSW

Many people will have heard terms such as "suspended sentences" or "section 10s", even if they do not know the exact parameters of these concepts.

Sentencing law in NSW, however, was dramatically overhauled on 24 September 2018.

The following is a broad outline of the sentencing options now available to NSW courts in criminal matters.

• Pleading or being found guilty without the Court proceeding to a conviction

People will often understand that "section 10s" meant 'no conviction recorded'.

Prior to 24 September 2018, there were two types of "sections 10s"

1. Section 10(1)(a), being a non-conviction dismissal.
2. Section 10(1)(b), being a non-conviction, with the imposition of a 'good behaviour bond'.

Section 10(1)(a) is still available to a court.

Section 10(1)(b) has been replaced with Conditional Release Orders without conviction (CRO without conviction). A second type of CRO also now exists; being one that carries a conviction. That second type is discussed below.

Both the section 10(1)(a) and CRO without conviction involve no conviction being recorded, and accordingly the Court is proceeding by way of leniency.

The factors which the Court is to have regard to when making a determination to proceed without recording a conviction are:

(a)  the person’s character, antecedents, age, health and mental condition,

(b)  the trivial nature of the offence,

(c)  the extenuating circumstances in which the offence was committed,

(d)  any other matter that the court thinks proper to consider.

• Pleading or being found guilty with conviction

Section 10A [not to be confused with section 10(1)(a) or section 10(1)(b)] still exists, and that is where the Court records a conviction without any further punishment.

Similarly, if the Court proceeds to impose a fine, that will also carry a conviction (note that this is for criminal law sentencing, and not – for example – if you are challenging a parking fine in court).

A further sentencing option is a Conditional Release Order with conviction (CRO with conviction). This is a good behaviour bond similar to that discussed above, except that it carries a conviction. Under the old sentencing regime, the equivalent was a "section 9 bond".

A more severe form of punishment is the Community Correction Order (CCO). CCOs are a hybrid of the old 'good behaviour bond' and 'community service' sentencing options.

The 'standard orders' of a CCO are:

(a)  the offender must not commit any offence, and

(b)  the offender must appear before the court if called on to do so at any time during the term of the community correction order.

The 'additional orders' the Court can impose with a CCO are:

(a)  a curfew condition imposing a specified curfew (not exceeding 12 hours in any period of 24 hours),

(b)  a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 500 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser),

(c)  a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,

(d)  an abstention condition requiring abstention from alcohol or drugs or both,

(e)  a non-association condition prohibiting association with particular persons,

(f)  a place restriction condition prohibiting the frequenting of or visits to a particular place or area,

(g)  a supervision condition requiring the offender to submit to supervision—

(i)  by a community corrections officer, except as provided by subparagraph (ii), or

(ii)  if the offender was under the age of 18 years when the condition was imposed, by a juvenile justice officer until the offender has reached that age.

The next sentencing option is an Intensive Correction Order (ICO). This existed prior to 24 September 2018, but were made more comprehensive. An ICO is a serious order, and is an alternative sentence for an offender who has been sentenced up to two years imprisonment for a single offence, or three years for an aggregate sentence of imprisonment.

ICOs are not available for certain prescribed offences, nor domestic violence offences (unless the Court is satisfied the victim is adequately protected).

ICOs require, in addition to good behaviour and supervision by Community Corrections, the imposition of at least one of the following orders:

(a)  a home detention condition,

(b)  an electronic monitoring condition,

(c)  a curfew condition imposing a specified curfew,

(d)  a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser),

(e)  a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,

(f)  an abstention condition requiring abstention from alcohol or drugs or both,

(g)  a non-association condition prohibiting association with particular persons,

(h)  a place restriction condition prohibiting the frequenting of or visits to a particular place or area.

The final sentencing option available is full time custody.

'Suspended sentences', whereby a person would be given a 'second chance' (to avoid full time custody) with custody only being triggered by a breach, are no longer available.

For advice in relation to criminal law, contact Maclarens Lawyers on 96823777.