Local Court Bench Book — General Orders

In matters punishable summarily, the magistrate shall dismiss the matter if, having heard all the prosecution evidence, and addresses from both parties, the magistrate is not satisfied that a prima facie case has been established: see s 202 Criminal Procedure Act 1986 and discussion on “no case to answer” in Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 and DPP v Elskaf [2012] NSWSC 21.

After a prima facie case is found, the defendant may argue, without calling evidence, that the evidence founding a prima facie case is insufficient to support a conviction: DPP v Elskaf, above, at [48]. Before ruling on this submission it is wise to ensure that the defence does not intend to call evidence should the submission fail: DPP v Kirby [2017] NSWSC 1754 at [49]. If the defendant intends to call evidence, no ruling should be made on the May v O’Sullivan (1955) 92 CLR 654 submission and the case should be determined at the conclusion of all the evidence and submissions. If a ruling is to be given the prosecutor must be given an opportunity to address the court: DPP v Kirby, above, at [50].

In matters punishable summarily, the magistrate shall dismiss the matter if, having heard all the evidence for the prosecution and defence, and addresses, the magistrate is not satisfied the offence has been proved beyond reasonable doubt.

If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the defendant is taken to be discharged: s 208 Criminal Procedure Act.

Costs may be ordered:

Costs can include court costs, witness expenses and professional costs. They are paid to the registrar of the court for payment out to the relevant party.

In the vast majority of criminal proceedings before the Local Court, there is no requirement to order the payment of court costs. Upon conviction, most defendants are liable to pay an automatic court costs levy: s 211A(1) Criminal Procedure Act. Section 211A(2) sets out instances where the automatic levy does not apply, relevantly including:

Section 211A(3) further enables the court to direct that the levy is not payable where the convicted person is a child.

Costs are to be paid within 28 days: see Fines at [16-120]. A costs order in relation to proceedings for an offence brought by a law enforcement officer is included in the definition of “fine”: s 4 Fines Act 1996.

The Criminal Procedure Act outlines the jurisdiction to deal with matters in the absence of the defendant.

The conditions set out in the Criminal Procedure Act to deal with the matter under Ch 4, Pt 2, Div 3 are:

Section 196(4) Criminal Procedure Act provides that if it is a Table 1 matter, the absence of the defendant is taken to be consent to the offence being dealt with summarily.

If the magistrate is of the opinion that the matter should not proceed, it can be adjourned: s 197 Criminal Procedure Act or an arrest warrant may be issued under s 181(3A) Criminal Procedure Act.

If the matter proceeds ex parte:

The magistrate may convict the defendant, make an order as to the defendant, or dismiss the matter: s 202(2) Criminal Procedure Act.

The magistrate may impose a fine in the absence of the defendant or make other ancillary orders which are available when a defendant is present. This includes s 10(1)(a) dismissal, but see below for restrictions on the penalties which can be imposed in a defendant’s absence.

The following orders cannot be made in the absence of the defendant:

A warrant may be issued to bring the offender before the court for sentence (s 25(2)), but only if the penalty for the offence includes a sentence of imprisonment. In deciding whether to issue a warrant for an absent offender who has lodged a written plea in accordance with s 182 Criminal Procedure Act, the magistrate must consider whether it is more appropriate to adjourn the proceedings: s 25(2A).

In addition to the above mentioned warrants, there is a power for magistrates to issue an arrest warrant if an accused person is not present at the day, time and place set down for the proceedings to be heard, or absconds from the proceedings. The magistrate must be satisfied there are substantial reasons to issue an arrest warrant and that it is in the interests of justice to do so: s 54(3A) Criminal Procedure Act for committal proceedings and s 181(3A) Criminal Procedure Act for summary matters.

An authorised officer can sign the warrant if the magistrate directs in writing that the warrant be issued: s 236(4) Criminal Procedure Act.

The Victims Rights and Support Act 2013 replaced the Victims Support and Rehabilitation Act 1996 from 3 June 2013. All legislative references in this section are to the 2013 Act unless otherwise indicated.

Special provisions have been made in relation to assessment reports and the imposition of home detention conditions and community service work conditions: s 17D.

A court must not request an assessment report relating to the imposition of a home detention condition on an ICO unless it has imposed a sentence of imprisonment on the offender for a specified term: s 17D(3). A court must not impose a home detention condition on an ICO unless the assessment report states the offender is suitable to be subject to such a condition: s 73A(3) (see further discussion of ICOs below).

A court must not impose a community service work condition on an ICO or a CCO unless it has obtained an assessment report (s 17D(4)) and that report confirms such a condition is suitable: s 73A(3) for ICOs, s 89(4) for CCOs.

While Community Corrections may canvass psychiatric/psychological issues in a pre-sentence report, reports from a treating specialist are best sought via the defendant or their legal representative. If a defendant is in custody and does not propose to obtain an independent specialist report, on rare occasions one may be ordered through Justice Health. It is important that any request to Justice Health be accompanied by material available to the magistrate describing the offence and any medical/psychiatric reports.

To expedite this request reaching Justice Health, it can help to have the request endorsed on the remand warrant.

Section 10 orders cannot be imposed for “major” traffic offences if s 10 has been applied to the defendant within the previous five years: Road Transport Act 2013, s 203.

For further discussion: see Sentencing Bench Book, Dismissal of charges and conditional discharge at [5-000]ff. The non-suitability of the application of the section to various offences is discussed.

A CRO is subject to three types of conditions:

The court may limit the period during which an additional condition or further condition on a CRO is in force: ss 99(4), 99A(3).

The standard conditions which the court must impose on a CRO at the time of sentence are that the offender must not commit any offence and must appear before the court if called on to do so at any time during the term of the CRO: s 98.

Additional conditions can include supervision and those conditions set out in s 99(2), but must not involve home detention, require electronic monitoring, impose a curfew, or require community service work: s 99(3).

If any further conditions are imposed, they must not be inconsistent with any of the standard or additional conditions of the CRO: s 99(2).

The court must ensure that reasonable steps are taken to explain to the offender his or her obligations under the order and the consequences that may follow if the obligations are not complied with: s 17I.

In this regard, best practice would be to direct the offender to attend the registry where a copy of the order will be provided and explained by registry staff. (Note: in the event the offender appears from custody via AVL (and is unable to attend the registry), a copy of the order will be provided and explained by Corrective Services) (see Sample Order — Conditional Release Order (CRO) (without conviction) s 10(1)(b)/s 9(1)(b) and Sample order — Conditional Release Orders (CRO) (with conviction) s 9(1)(a), below).

Section 108E Administration Act makes specific provision in relation to the suspension of a condition imposed under s 99(2) Sentencing Act. A community corrections officer may subject to the regulations:

The suspension may be unconditional or subject to conditions: s 108E(4).

Clause 189I Administration Regulation sets out matters that the corrections officer must take into account before deciding to make an order suspending the application of a supervision condition.

A failure to comply with a condition of the suspension is taken to be a failure to comply with the obligations of the CRO: s 108E(5). The community corrections officer has power to revoke the suspension order: s 108E(5). If the suspension order has been revoked by a juvenile justice officer and the offender has reached the age of 18 years, a community corrections officer may revoke the suspension order: s 108E(8).

Part 4C Administration Act makes provision for the breach and revocation of a CRO: s 108C. If the court suspects that an offender may have failed to comply with any of the conditions of a CRO the court may call on the offender to appear before it. If the offender does not appear the court may issue an arrest warrant or authorise the issue of a warrant: s 108C(3) Administration Act.

Clause 329 Administration Regulation sets out a procedure for breaches of CROs. If the court is satisfied that the offender appearing before it has failed to comply with any of the conditions of a CRO it may take no action, vary or revoke conditions of the order, impose further conditions or revoke the order: s 108C(5). A court may take action in relation to a CRO after the order has expired, but only in respect of matters arising during the order: s 108C(6A).

If a court revokes a CRO, it may sentence or re-sentence the offender for the offence to which the order relates: s 108D(1). The Sentencing Act applies to the sentencing or re-sentencing of an offender in the same way as it applies to the sentencing of an offender found guilty of the offence concerned: s 108D(2).

In fixing a fine, the magistrate must take into account the defendant’s means to pay: s 6 Fines Act; R v Rahme (1989) 43 A Crim R 90; Retsos v R [2006] NSWCCA 85. The offender's capacity to pay is relevant, but not the most dominant or decisive factor: Jahandideh v R [2014] NSWCCA 178 at [17]. It may increase, rather than decrease, a fine in order for it to be a deterrent: Jahandideh v R at [17].

A fine imposed by a court is payable within 28 days: s 5 Fines Act. A person may apply to the court registrar for additional time to pay. A court may direct payment before 28 days for special reasons stated by the court: s 7 Fines Act.

A magistrate may order that part of a fine, not exceeding half, be paid to the informant or other person prosecuting or suing (but not to a member of the police force): s 122 Fines Act.

A reference in an Act to penalty units means that number of units multiplied by $110 (that is, 1 penalty unit = $110): s 17.

For further commentary: see Sentencing Bench Book, Fines at [6-100]ff.

A CCO is subject to the three types of conditions:

The court may limit the period during which an additional condition or further condition on a CCO is in force: ss 89(5), 90(3).

The standard conditions which the court must impose on a CCO at the time of sentence are that the offender must not commit any offence and must appear before the court if called on to do so at any time during the term of the CCO: s 88(2).

Additional conditions, in s 89(2), can include:

Additional conditions cannot include home detention, require electronic monitoring, or impose a curfew exceeding 12 hours in any period of 24 hours: s 89(3).

A community service work condition must not be imposed on a community correction order made with respect to an offender to whom the Children (Community Service Orders) Act 1987 applies.

Community service work cannot be a condition of a CCO for an offender who resides, or intends to reside, in another State or Territory unless the offender is willing and able to travel to NSW to complete the work or the State or Territory is declared by the regulations to be an approved jurisdiction: s 89(4B).

Clause 14(1) Crimes (Sentencing Procedure) Regulation 2017 prescribes the maximum number of hours that may be specified for community service work in an additional condition of a CCO:

Section 89(4C) provides the period during which a community service condition is in force must not be less than the period prescribed by the regulations.

Clause 14(2) Crimes (Sentencing Procedure) Regulation 2017 prescribes the minimum period that a community service work condition of a CCO must be in force:

See [16-170] Ready reckoner table — length of orders and community service hours that can be imposed.

If any further conditions are imposed, they must not be inconsistent with any of the standard or additional conditions of the CCO: s 90(2).

The court must ensure that reasonable steps are taken to explain to the offender his or her obligations under the order and the consequences that may follow if the obligations are not complied with: s 17I.

In this regard, best practice would be to direct the offender attend the registry where a copy of the order will be provided and explained by registry staff (Note: in the event the offender appears from custody via AVL (and is unable to attend the registry), a copy of the order will be provided and explained by Corrective Services) (see Sample Order — Community Correction Order).

Section 107E Administration Act makes specific provision in relation to the suspension of a condition imposed under s 89(2) Sentencing Act. A community corrections officer may, subject to the regulations:

The suspension may be unconditional or subject to conditions: s 107E(4).

Clause 189I Administration Regulation sets out matters that the corrections officer must take into account before deciding to make an order suspending the application of a supervision condition.

A failure to comply with a condition of the suspension is taken to be a failure to comply with the obligations of the CRO: s 107E(5). The community corrections officer has power to revoke the suspension order: s 107E(5). If the suspension order has been revoked by a juvenile justice officer and the offender has reached the age of 18 years, a community corrections officer may revoke the suspension order: s 107E(8).

Part 4B of the Administration Act (ss 107C–107D) makes provision for the breach and revocation of a CCO. Clause 329 Administration Regulation sets out a procedure for breaches of CCOs.

If the court suspects that an offender may have failed to comply with any of the conditions of a CCO the court may call on the offender to appear before it: s 107C(1). If the offender does not appear the court may issue an arrest warrant or authorise the issue of a warrant: s 107C(2). If the court is satisfied that an offender appearing before it has failed to comply with any of the conditions of a CCO the court may decide to take no action, vary or revoke conditions, impose further conditions or may revoke the order: s 107C(5). A court may take action in relation to a CCO after the order has expired, but only in respect of matters arising during the order: s 107C(6A).

If a court revokes a CCO, it may sentence or re-sentence the offender for the offence to which the order relates: s 107D(1). The Sentencing Act applies to the sentencing or re-sentencing of an offender in the same way as it applies to the sentencing of an offender found guilty of the offence concerned: s 107D(2).

Since an ICO is a form of imprisonment, a three-stage approach is required before directing that the sentence can be served in that way:

See Stanley v DPP [2023] HCA 3 at [59]; R v Douar [2005] NSWCCA 455 at [71]; R v Zamagias [2002] NSWCCA 17 at [26]; Zreika v R [2012] NSWCCA 44 at [56].

See also Sentencing Bench Book at [3-630] ICO is a form of imprisonment.

Section 4B(1)(a) provides that an ICO must not be made with respect to a sentence of imprisonment for a domestic violence offence unless the court is satisfied the victim of the domestic violence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the ICO or for some other reason).

Section 4B(1)(b) provides that an aggregate sentence of imprisonment for two or more offences, any one or more of which is a domestic violence offence, must not be made unless the court is satisfied of the matters referred to in s 4B(1)(a).

Section 66 sets out criteria relating to community safety and other matters that a court is to have regard to when deciding to impose an ICO. Community safety must be the court’s paramount consideration: s 66(1).

When considering community safety the court is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending: s 66(2).

When deciding to impose an ICO the court must also consider the provisions of s 3A (Purposes of sentencing) and any relevant common law principles and any other matters that the court thinks relevant: s 66(3).

Section 67(1)(a)–(h) sets out a list of offences described both specifically and generically for which an ICO “must not be made”. The offences include murder, manslaughter, a prescribed sexual offence (specifically defined in s 67(2)) or an offence involving the discharge of a firearm. Section 67(2) sets out definitions for “firearm” and “prescribed sexual offence”. Section 67(1) extends to a sentence of imprisonment for 2 or more offences any one of which includes an offence referred to in s 67(1)(a)–(h) above: s 67(3).

An ICO is not available where imprisonment exceeds certain limits. An ICO must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years: s 68(1).

An ICO may be made in respect of an aggregate sentence of imprisonment provided the duration of the term of the aggregate does not exceed 3 years: s 68(2).

Two or more ICOs may be made in respect of each of two or more offences but must not be made if:

Section 69(1) provides that in deciding whether or not to make an ICO the court is to have regard to:

Subject to s 73A(3), the court is not bound by the assessment report: s 69(2).

A court may not make an ICO in respect of an offender who resides, or intends to reside, in another State or Territory unless the State or Territory is declared by the regulations to be an approved jurisdiction: s 69(3).

A 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: s 73A(3).

A court cannot impose an ICO unless it has obtained an assessment report in relation to the offender: s 17D(1).

However, a court is not required to obtain a report (except if required under s 17D(2) or (4)) if it is satisfied there is sufficient information before it to justify the making of an ICO without a report: s 17D(1A).

Section 17D(2)–(4) provide a court cannot impose a home detention condition or a community service work condition unless it has obtained an assessment report addressing those conditions and confirming the offender’s suitability.

Section 17D(3) provides that in the case of a home detention condition, the court must not request an assessment report unless it has imposed on the offender a sentence of imprisonment for a specified term.

Assessment reports prepared under s 17D may be in the one report or in more than one report: s 17D(5).

Note:

Where a sentencing report is requested to assess the offender’s suitability for home detention, as s 17D(3) requires the imposition of a sentence of imprisonment for a specified term, the magistrate is considered part-heard on sentence.

An ICO order is subject to four types of conditions:

The court may limit the period during which an additional condition or a further condition imposed is in force: ss 73A(4), 73B(3).

The standard conditions which the court must impose on an ICO at the time of sentence are that the offender must not commit any offence and must submit to supervision by a community corrections officer: s 73(1), (2).

In addition to the standard conditions, the court must at the time of sentence impose on an ICO at least one of the additional conditions referred to in s 73A(2): s 73A(1).

However, the court is not required to impose an additional condition if the court is satisfied there are exceptional circumstances: s 73A(1A). The court must make a record of its reasons for not imposing an additional condition but a failure of the court to do so does not invalidate the sentence: s 73A(1B).

Additional conditions can include:

A court cannot impose home detention or community service work as an additional condition unless the assessment report states that the offender is suitable: s 73A(3).

Clause 14(1) Crimes (Sentencing Procedure) Regulation 2017 prescribes the maximum number of hours that may be specified when community service work is an additional condition of an ICO as:

Section 73A(5) provides the period during which a community service condition is in force must not be less than the period prescribed by the regulations.

Clause 14(2) Crimes (Sentencing Procedure) Regulation 2017 prescribes the minimum period a community service work condition of an ICO must be in force is:

See [16-170] Ready reckoner table — length of orders and community service hours that can be imposed.

If any further conditions are imposed, they must not be inconsistent with any of the standard or additional conditions of the ICO: s 73B(2).

The court must ensure that reasonable steps are taken to explain to the offender his or her obligations under the order and the consequences that may follow if the obligations are not complied with: s 17I.

In this regard, best practice would be to direct the offender attend the registry where a copy of the order will be provided and explained by registry staff (Note: in the event the offender appears from custody via AVL (and is unable to attend the registry), a copy of the order will be provided and explained by Corrective Services) (see Sample Order — Intensive Correction order, below).

The court may at the time of sentence, or subsequently on the application of a community corrections officer or the offender, impose further conditions on an ICO, or vary or revoke any such further conditions: s 73B(1). The court is not permitted to impose any further conditions, or vary any such further conditions, so as to be inconsistent with any of the standard conditions of an ICO or any of the additional conditions: s 73B(2).

Section 82A Administration Act makes specific provision in relation to the suspension of a condition imposed under s 73(2) Sentencing Act. A community corrections officer may, subject to the regulations:

The suspension may be unconditional or subject to conditions: s 82A(4).

Clause 189I Administration Regulation sets out matters that the corrections officer must take into account before deciding to make an order suspending the application of a supervision condition.

A failure to comply with a condition of the suspension is taken to be a failure to comply with the obligations of the ICO: s 82A(5). The community corrections officer has power to revoke the suspension order: s 82A(5).

Section 81 Administration Act makes provision with respect to the conditions governing ICOs. It provides conditions on an ICO:

The Parole Authority may, on the application of a community corrections officer or the offender:

In the case of Commonwealth offences, s 20AC Crimes Act 1914 (Cth) requires breaches of ICOs to be dealt with by the court. It will remain the case for State offences that the Parole Authority deals with breaches and revocations of ICOs.

Section 163 sets out actions that can be taken by a community corrections officer on breach of an ICO and s 164 provides a series of actions that can be taken by the Parole Authority. Section 164AA sets out the Parole Authority’s power to revoke an ICO for reasons in addition to a breach.

Section 164A deals with the effect of a revocation order. If the Parole Authority revokes an ICO, it may issue a warrant committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention: s 181(1).

As noted above, an ICO is a form of imprisonment and is therefore not to be ordered unless and until the court is satisfied that no alternative to imprisonment is appropriate (s 5), and furthermore, the term of the sentence in respect of one offence will be 2 years or less or, in respect of more than one offence 3 years or less: s 68.

See also Sentencing Bench Book at [3-600] Intensive correction orders (ICOs) (alternative to full-time imprisonment) and [10-000] Objective factors at common law.

The following checklist sets out a step-by-step approach to sentencing an offender to a term of imprisonment.

Section 44 provides:

A decision that special circumstances exist does have the consequence of increasing time on parole and reducing time in detention: R v Simpson (2001) 53 NSWLR 704 at [24].

The purpose of finding special circumstances is to benefit the offender and this is achieved by reducing the non-parole period and extending the parole period: R v Huynh [2005] NSWCCA 220 at [34]–[40]; R v Ellaz [2005] NSWCCA 350 per Hidden J at [26].

For discussion regarding the setting of non-parole periods and finding special circumstances: see Sentencing Bench Book, Setting terms of imprisonment at [7-500]ff.

Sentences of six months or less cannot include a non-parole period: s 46.

For sentences of full-time imprisonment of three years or less the court is not required to direct release of the offender on parole and s 158 of the Crimes (Administration of Sentences) Act 1999 provides for statutory parole orders whereby offenders are subject to the same standard conditions as a parole order made by the State Parole Authority. Part 5A provides for a back-end scheme of re-integration home detention.

When imposing a sentence for an offence, other charges may be taken into account when fixing the appropriate sentence. It is at the discretion of the prosecution whether it wishes to file in the court a list of other matters with which the offender has been charged, but not convicted: s 32.

The following matters should be considered:

For a summary of the law and principles applicable to sentencing by reference to outstanding charges: see Sentencing Bench Book, Taking further offences into account (Form 1 offences) at [13-200]ff.

The court can re-open criminal proceedings where it has imposed a penalty contrary to law, or failed to impose a penalty required by law: s 43.

Proceedings can be re-opened on application by a party, or on the court’s own motion. A magistrate, other than the magistrate who imposed the sentence, can re-open the proceedings or correct any error.

The informant and the defendant must be given the opportunity to be heard before any correction is made. If the offender does not appear, or the court is of the view the offender will not appear for this purpose, a warrant can be issued to bring him or her to court: s 43(3).

The provision relates to the penalty, not to the manner of imposition of the penalty. It does not authorise the re-opening of a hearing to correct some procedural irregularity.

For discussion of law and principles to be applied: see Sentencing Bench Book, Correction and adjustment of sentences at [13-900]ff.