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Criminal LawPENALTIES

If you have been charged with an offence the maximum penalty for that offence is determined under legislation. However, the maximum penalty is reserved for cases that are the most serious or known as “worse category” offences.

Pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), a judge or magistrate has a range of sentencing options available to him or her. The penalty you will receive will depend on your individual circumstances and the nature of your particular offence.

Receiving any sentence can be an overwhelming experience and significantly impact your daily life. You can give yourself an effective chance for reduced penalties or a non-conviction by contacting our experienced criminal defence team at S.A.S Lawyers. It is our goal to deliver a strong defence for your case and provide the best possible outcome for your situation.


FINE

 

A fine is a monetary penalty. This penalty is most likely a result of minor offences such as minor driving, parking fines or littering. A fine is sometimes referred to as a penalty notice, infringement notice, on the spot fine, ticket or a Criminal Infringement Notice (CIN).

You can plead not guilty and defend your case in the Local Court. You also might be able to provide a good reason as to why you committed the offence and plead guilty but ask the court to consider ordering a smaller or no fine.

A fine may be imposed in addition to or instead of any other penalty that may be imposed for an offence. In case where a fine is imposed in addition to another penalty dealt with on indictment a court cannot impose a fine that is more than 1,000 penalty units. Unless otherwise specified, 1 penalty notice is equivalent to $110.


DISMISSAL WITHOUT CONVICTION

 

The court may choose to not record a conviction for some minor offences and dismiss the charges completely. This is referred to as a section 10 dismissal in accordance with section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Section 10(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) also provides the opportunity to proceed without a conviction on the condition that the discharging person enter into an agreement to participate in an intervention program.

What will the court consider?

  • the person’s character, antecedents, age, health and mental condition,
  • the trivial nature of the offence,
  • the extenuating circumstances in which the offence was committed,
  • any other matter that the court thinks proper to consider

What does extenuating circumstances refer to?

Extenuating circumstances refers to circumstances that were unusual or unexpected that caused or partially caused the offence. For example, if you were suddenly required to speed to the hospital for an emergency situation.

These circumstances cannot excuse the conduct but can go towards your chances of a dismissal without a conviction.

How do I increase my chances of getting a dismissal without a conviction?

  • Prepare character references. At S.A.S Lawyers, we can assist you with this and tell you what would be required.
  • Take steps towards addressing any underlying issues by completing an intervention program or organising a psychologist report.
  • An early plea of guilt demonstrated that you are remorseful of your actions and accept responsibility.

CONDITIONAL RELEASE ORDER (CRO) 

 

A Conditional Release Order is an alternative to an imprisonment sentence or fine that effectively will discharge an offender either with or without a conviction as set out in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A CRO may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

The offender will be subject to the mandatory conditions that the offender must comply with. These conditions are:

  • The offender must not commit any offence
  • The offender must appear before the court if called on to do so at any time during the term of the CRO.

Additional conditions may also be imposed depending on specific circumstances of the offender and their case. This include:

  • a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • an abstention condition requiring abstention from alcohol or drugs or both,
  • a non-association condition prohibiting association with particular persons,
  • a place restriction condition prohibiting the frequenting of or visits to a particular place or area,
  • a supervision condition requiring the offender to submit to supervision —
  • by a community corrections officer
  • or 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.

A CRO cannot include any of the following:

  • a home detention condition,
  • an electronic monitoring condition,
  • a curfew condition,
  • a community service work condition.

A court may vary or revoke any of the additional conditions imposed in a CRO.

How long will a CRO be imposed for?

A maximum term of a CRO is 2 years.

What happens if you breach your CRO?

Under section 108C of the Crimes (Administration of Sentences) Act 1999 (NSW), if you have failed to comply with any of the conditions of a CRO a court:

  • may decide to take no action in respect of the failure to comply, or
  • may vary or revoke any conditions of the order (other than standard conditions) or impose further conditions on the order, or
  • may revoke the order.

If the order is revoked, the original offence will be resentenced (Bonsu v R [2009] NSWCCA 316).


COMMUNITY CORRECTION ORDER (CCO) 

 

A Community Correction Order is a non-custodial order, that allows the offender to serve their sentence in the community. A CCO may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. A CCO is a less restrictive order to a CRO.

The offender will be subject to the mandatory conditions that the offender must comply with. These conditions are:

  • The offender must not commit any offence
  • The offender must appear before the court if called on to do so at any time during the term of the CRO.

Additional conditions may also be imposed depending on specific circumstances of the offender and their case. This include:

  • a curfew condition imposing a specified curfew (not exceeding 12 hours in any period of 24 hours),
  • 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),
  • a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • an abstention condition requiring abstention from alcohol or drugs or both,
  • a non-association condition prohibiting association with particular persons,
  • a place restriction condition prohibiting the frequenting of or visits to a particular place or area,
  • a supervision condition requiring the offender to submit to supervision—
  • 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.

A CRO cannot include any of the following:

  • a home detention condition,
  • an electronic monitoring condition,
  • a curfew condition imposing a curfew exceeding 12 hours in any period of 24 hours.

A court may vary or revoke any of the additional conditions imposed in a CRO.

How long will a CCO be imposed for?

A maximum term of a CCO is 3 years.

What happens if you breach your CCO?

Under section 107C of the Crimes (Administration of Sentences) Act 1999 (NSW), if you have failed to comply with any of the conditions of a CCO a court:

  • may decide to take no action in respect of the failure to comply, or
  • may vary or revoke any conditions of the order (other than standard conditions) or impose further conditions on the order, or
  • may revoke the order.

If the order is revoked, the original offence will be resentenced (Bonsu v R [2009] NSWCCA 316).


INTENSIVE CORRECTION ORDER (ICO)

 

An Intensive Correction Order is an alternative to full-time custody at a Correctional Centre. An ICO will allow some offenders to serve a sentence of imprisonment in the community under strict supervision by a community corrections officer. This means that an ICO can only be ordered where the court determined that a prison sentence was an appropriate penalty.

Community safety is the paramount consideration when deciding to impose an ICO and a court must consider whether an ICO would better address an offender’s likeliness of re-offending compared to a sentence of imprisonment.

A court cannot impose an ICO if the if the duration of the term of imprisonment imposed for the offence exceeds 2 years. An ICO is also not available for certain types of offences, these include:

  • murder or manslaughter,
  • any prescribed sexual offence which includes child sex offences
  • a terrorism offence
  • an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW),
  • an offence relating to a contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW),
  • an offence involving the discharge of a firearm,
  • an offence that includes the commission of, or an intention to commit, an offence referred to above
  • an offence of attempting, or of conspiracy or incitement, to commit an offence referred to above

 How long will a CCO be imposed for?

A maximum term of a ICO is 3 years.

Assessment of suitability

  • A court must order an assessment report and consider the contents of the assessment report but the court is not bound by it
  • A court will consider evidence from a community corrections officer and any other information before the court that the court considers necessary for the purpose of deciding whether to make an ICO

The offender will be subject to the mandatory conditions that the offender must comply with. These conditions are:

  • The offender must not commit any offence
  • The offender must submit to supervision by a community corrections officer.

Additional conditions may also be imposed depending on specific circumstances of the offender and their case. This include:

  • a home detention condition,
  • an electronic monitoring condition,
  • a curfew condition imposing a specified curfew,
  • 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),
  • a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,
  • an abstention condition requiring abstention from alcohol or drugs or both,
  • a non-association condition prohibiting association with particular persons,
  • a place restriction condition prohibiting the frequenting of or visits to a particular place or area.
  • Any further condition that is consistent with the standard and additional conditions

The sentencing court must not impose a home detention condition or community service work condition on an ICO unless an assessment report states that the offender is suitable to be the subject of such a condition. 

What happens if you breach your ICO?

If you fail to comply with the conditions of an ICO order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include:

  • a formal warning
  • imposing more stringent conditions
  • change or revoke existing additional condition/s
  • revocation of the order.

If the order is revoked, you may be required to serve all of some of the period of your sentence in full time custody.


CONVICTION WITHOUT PENALTY

 

Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a Court might decide to proceed to a conviction but not impose any further penalties. This means you will have the charge on your criminal record but you will not suffer any penalty.

This will be appropriate where the offence is not trivial enough to be dismissed under section 10 or where it is inconvenient to impose any further penalty. For example, if an offender is sentenced for one or more principal offences and other minor charges carrying a maximum penalty of a fine is dealt with at the same time. The offender would be convicted of the minor charge but will not have to incur the fine.


DEFERRAL FOR REHABILITATION

 

Section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court can adjourn proceedings against an offender to a specified date for the purposes of:

  • assessing the offender’s capacity and prospects for rehabilitation, or
  • allowing the offender to demonstrate that rehabilitation has taken place, or
  • assessing the offender’s capacity and prospects for participation in an intervention program, or
  • allowing the offender to participate in an intervention program, or
  • for any other purpose the court considers appropriate in the circumstances.

Proceedings cannot be adjourned unless bail for the offence was or has been granted or dispensed with under the Bail Act 2013 (NSW). Deferring proceedings may aid the final determination of an appropriate sentence, particularly to review whether a custodial sentence is necessary.

The maximum period for which proceedings can be adjourned is 12 months from the date of being convicted guilty.


IMPRISONMENT

 

Imprisonment is the most serious and restrictive form of punishment, and is usually imposed on people found guilty of serious offences. A court will only impose a full-custody sentence if there is no other appropriate penalty. Imprisonment is a sanction of last resort.

Adult offenders are held in adult Correctional Centres. In the children’s court, this would be called a control order and the young person would be held in a juvenile detention centre.

When sentencing someone to imprisonment, the court will set a full-term of the sentence and a separate non-parole period. A non-parole period is the minimum term the offender must serve before being eligible for release. If a court decides to not set a non-parole period they must provide sufficient reasoning for this decision. The court may decline setting a non-parole period for the following reasons:

  • because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or
  • because of any other penalty previously imposed on the offender, or
  • for any other reason that the court considers sufficient.

The court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less.

The court must set a balance term that does not exceed one-third of the non-parole period. For example, if a court sets a non-parole period of 9 years, the remainder of the sentence must not exceed 3 years. Therefore, the full sentence will be 12 years. However, a court may provide special circumstances persuasive to disturb this requirement.

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