Sentencing Options for State Offences (NSW)

---

Sentencing is a discretionary process.  The Magistrate or Judge has a range of options from Non Conviction to Full Time Immediate Imprisonment.

Don't leave it to chance - Call Ozlaw for a free consultation

Section 10 Crimes (Sentencing Procedure) Act 1999 identifies the following three orders which may be made when a court decides not to convict an offender:

• s 10(1)(a) order, dismissing the relevant charges
• s 10(1)(b) order, discharging the person under a conditional release order (CRO)
• s 10(1)(c) order, discharging the person on condition of participation in an intervention program.

The Court of Criminal Appeal decision of R v Maugher [2012 NSWCCA 51] sets out the Courts attitude and thought process relevant to 'Section 10's'.

The respondent pleaded guilty to supplying 5.13g, or 20 tablets, of 3,4 methylenedioxymethylamphetamine or ecstasy contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. 

A charge of possessing 3.1g of cannabis was taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. 

 Section 10A Crimes (Sentencing Procedure) Act 1999 provides:

(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.(2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

 Section 101 Crimes (Sentencing Procedure) Act 1999 abolished the common law power that a court had to:

• require a person to enter into a recognisance to be of good behaviour or to keep the peace, or
• take surety from a person for the performance of an obligation imposed (whether on that or any other person) by such a recognisance.

Prior to this, the so-called Griffiths remand was a device sometimes employed to remand an offender for behavioural assessment before he or she is called up for sentence: Griffiths v The Queen (1977) 137 CLR 293.

Section 11 Crimes (Sentencing Procedure) Act was introduced as a replacement for the Griffiths remand and provides the court with the power to defer sentencing for rehabilitation, participation in an intervention program or other purposes.

Conditional release orders (CROs) were introduced as a sentencing option on 24 September 2018 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. They replace the good behaviour bonds which could be imposed with or without conviction under either ss 9 or 10(1)(b) Crimes (Sentencing Procedure) Act 1999 as in force before that date. 

Section 9(2) requires a court deciding whether to convict an offender and make a CRO to have regard to the following:

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

(b)  whether the offence is of a trivial nature

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

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

Section 99(1) provides that a court may impose additional conditions on a CRO which are identified in s 99(2) and include:

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

(b)  a condition requiring the offender to abstain from alcohol or drugs or both

(c)  a non-association condition prohibiting association with particular persons

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

(e)  a supervision condition.

 Community correction orders (CCOs) were introduced as a sentencing option following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 on 24 September 2018. 

Section 8 Crimes (Sentencing Procedure) Act empowers a court which has convicted an offender to make a CCO instead of imposing a sentence of imprisonment. 

The standard conditions are that the offender must not commit any offence and must appear before the court if called upon during the term of the order: s 88(2).

Section 89(1) provides that the court may impose additional conditions, which are identified under s 89(2) as:

(a)  a curfew condition (the specified curfew not exceeding 12 hours in any 24-hour period)

(b)  a community service work condition, not exceeding 500 hours, requiring the offender to perform community service work (although this condition cannot be imposed without first having obtained an assessment report which states the offender is suitable for such a condition): s 89(4)

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

(d)  a condition requiring the offender to abstain 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.

 Section 7(1) Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community. 

 A court that has sentenced an offender to imprisonment in respect of one or more offences may make an ICO directing that the sentence be served by way of intensive correction in the community: s 7(1) Crimes (Sentencing Procedure) Act 1999. If such an order is made, the court must not set a non-parole period for the sentence: s 7(2). 

Section 5(1) Crimes (Sentencing Procedure) Act 1999 provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

This provision reflects the common law principle that imprisonment should be used as a sanction of last resort: R v Way (2004) 60 NSWLR 168 at [115]. A sentence of imprisonment should only be imposed if no other sentence is appropriate. When approaching the imposition of a sentence of imprisonment, there are three steps a sentencing court should follow: R v Zamagias [2002] NSWCCA 17 at [25]–[26]; R v Douar (2005) 159 A Crim R 154 at [69]ff; R v Hamieh [2010] NSWCCA 189 at [82]–[84].

1. 

The first question (described as “the preliminary question” by Howie J in R v Zamagias at [25]) to be asked and answered is whether there is an alternative to the imposition of a sentence of imprisonment.

2. 

Having determined no penalty other than a sentence of imprisonment is appropriate, the court must determine the term of the sentence. If a court sentences an offender to imprisonment for 6 months or less, s 5(2) requires that reasons be given for doing so, including for deciding:

(a) 

that no penalty other than imprisonment is appropriate, and

(b) 

not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

3. 

Once the term of the sentence of imprisonment has been determined, the court must then consider whether an alternative to full-time imprisonment is available and should be utilised: R v Zamagias at [25]–[29]. This will depend on the length of the term of sentence and any preconditions set out in legislation. It is preferable that a sentencing judge articulate his or her conclusion as to the appropriate term before determining whether there is an alternative to full-time imprisonment: R v Assaad [2009] NSWCCA 182 at [33].