General orders

This chapter deals with orders that can be made during the course of and following a hearing or guilty plea including sentencing orders. The first part of the chapter deals with orders (other than sentencing orders) commonly made following a hearing and verdict. The second part of the chapter deals with sentencing orders.

[10-000] Glossary

Assessment report A report made by a community corrections officer to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender
CCO Community Correction Order
CRO Community Release Order
ICO Intensive Correction Order
SBB Sentencing Bench Book

[10-020] Dismissal

No prima facie case

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) 122 A Crim R 166 and DPP v Elskaf [2012] NSWSC 21.

May v O’Sullivan dismissal

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].

Dismissal after hearing

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.

Dismissal if matter withdrawn

If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the defendant is taken to be discharged: s 208 Criminal Procedure Act.

[10-040] [10-040] Traffic offence — accident/reasonable efforts

If a defendant satisfies the magistrate that any offence against the regulations was the result of an accident, or could not have been avoided by any reasonable efforts on the defendant’s part, that person shall not be liable to a penalty: cl 117(3) Road Transport (General) Regulation 2013.

[10-060] Costs

Note:

For costs in apprehended violence matters: see Apprehended Violence Orders at [25-160].

Costs orders

Costs may be ordered:

  • in summary proceedings upon dismissal, withdrawal, conviction, adjournment or order (including an order under s 10): ss 213–216 Criminal Procedure Act, or

  • when a court attendance notice is dismissed, a magistrate may grant a certificate under ss 2 and 3 Costs in Criminal Cases Act 1967

  • against a prosecutor when a defendant is discharged under ss 62 or 64 Criminal Procedure Act, or when committing for trial on a different offence to that charged: s 116 Criminal Procedure Act

  • against either prosecutor or defendant if committal is adjourned: s 118 Criminal Procedure Act

  • for costs in apprehended violence matters: see Apprehended Violence Orders at [25-160].

Costs covered by order

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:

  • where the conviction results in the imposition of any sentence of imprisonment other than a suspended sentence

  • where the court makes an order under s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 in relation to an offence that is not punishable by imprisonment

  • where the proceedings relate to a traffic offence in which the convicted person is a child who is sentenced in accordance with Div 4 Pt 3 Children (Criminal Proceedings) Act 1987. Note that in this instance the court has the discretion to order the payment of court costs: see s 42A(7) Children (Criminal Proceedings) Act. Section 42A provides generally for the discretion to order the payment of court costs by those found guilty in summary proceedings before the Children’s Court.

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

Time to pay

Costs are to be paid within 28 days: see Fines at [10-120]. 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.

[10-080] Offences dealt with in the absence of a defendant

Division 3

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:

1. 

The defendant is not present at:

  • the first return date or a subsequent mention date, and has not lodged a written plea of not guilty in accordance with s 182: s 190(3), or

  • the day, time and place set for hearing and determination of the matter: s 196(1).

2. 

The court must be satisfied that the defendant had reasonable notice of the first return date, the mention date, or the date, time and place of the hearing: ss 190(4), 196(3).

3. 

If the matter involves an annulled penalty notice:

  • it and any annexure is taken to be a court attendance notice in relation to the offence

  • the defendant must have been given notice of the hearing, and

  • there is no appearance on the day, time and place specified by the court attendance notice: s 196(2).

Table 1 offences

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.

Proceeding ex parte — ss 199–200 Criminal Procedure Act

If the matter proceeds ex parte:

1. 

The magistrate may determine the matter on the basis of the court attendance notice without hearing evidence, if the matters set out in the court attendance notice are sufficient to establish the offence: s 199(1) Criminal Procedure Act.

2. 

The magistrate must consider any written material submitted by the prosecutor or lodged by the defendant with the written plea of guilty under s 182 Criminal Procedure Act: s 199(2) Criminal Procedure Act; Roylance v DPP (NSW) [2018] NSWSC 933.

3. 

If not satisfied that the matters in the court attendance notice are sufficient to establish the offence, the magistrate can require the prosecutor to provide additional evidence: s 200(1) Criminal Procedure Act. This additional evidence is only admissible if it complies with Ch 3, Pt 2, Div 3 Criminal Procedure Act (written statements) and it is served on the defendant within a reasonable time before the magistrate considers it: s 200(2) Criminal Procedure Act. The alternative is that the evidence can be given orally.

Determination of ex parte proceedings

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.

Penalties which CANNOT be imposed in the absence of the defendant

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

  • imprisonment

  • intensive correction order

  • community correction order

  • a conditional release order

  • a non-association or place restriction order

  • an intervention program order (which includes an order that the defendant comply with a plan arising out of an intervention program): s 25.

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.

General arrest warrants

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.

[10-100] Compensation and restitution

Victims Rights and Support Act 2013

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.

Commissioner of Victims Rights

Part 4 of the Act establishes the Victim Support Scheme, under which victims of acts of violence may apply to the Commissioner of Victims Rights for the payment of victims support.

Magistrate’s power to award compensation

Magistrates retain a power to award compensation under Pt 6 of the Act.

A magistrate may award compensation for injury or for loss, where that injury or loss is sustained through, or by reason of the offence, or any other offence taken into account when sentencing an offender.

“Injury” is defined to mean “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property”: s 18.

Compensation for injury may be made in accordance with Pt 6 Div 2 and compensation for loss in accordance with Pt 6 Div 3.

Compensation

A court that convicts a person of an offence may direct, by notice given to the offender, the payment of a sum to an aggrieved person or persons by way of compensation for injury or loss: ss 94, 97.

Compensation cannot be awarded by a magistrate if, under Pt 4, the Commissioner of Victims Rights has approved the giving of financial support in respect of the injury: s 95(2).

Factors to be considered

In making an order for compensation, the court is to consider any behaviour, condition, attitude or disposition of the aggrieved person which contributed to the injury or loss, the aggrieved person’s access to civil damages and other relevant matters: s 99.

Maximum award of compensation

A magistrate may order compensation for injury of up to $50,000. There are limits on the order where directions for compensation are or have been made in respect of other related offences: s 95(1).

A magistrate may order compensation for loss up to the maximum amount of the court’s civil jurisdiction, that is, $100,000: s 29(1)(a) Local Court Act 2007. A court may not award compensation for loss for which financial support is payable under the Act or compensation is payable under the provisions relating to compensation for injury: s 98.

As to the court’s power to award compensation in respect of a Commonwealth offence, see s 21B Crimes Act 1914 (Cth) (discussed at [15-100]).

Time for making order

An order for compensation may be made at the time of conviction or at any time thereafter: ss 94, 97.

Restitution

Any person may apply to a court for an order that property (excluding certain livestock), which is in police custody in connection with any offence be returned to the person apparently lawfully entitled to the property: Div 2, Pt 17 Law Enforcement (Powers and Responsibilities) Act 2002. The Local Court has jurisdiction to deal with applications for the return of property with an estimated value of up to $100,000: s 229(1)(a) Law Enforcement (Powers and Responsibilities) Act 2002. There is no power to award costs in these applications.

In any criminal proceedings in which it is alleged that the accused person has unlawfully acquired or disposed of property, the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession: s 43(1) Criminal Procedure Act. Such an order may be made whether or not the court finds the person guilty of any offence with respect to the acquisition or disposal of the property: s 43(2). If the ownership is in dispute, the matter should proceed under Div 2, Pt 17 Law Enforcement (Powers and Responsibilities) Act.

[10-120] Sentencing orders generally

The following discussion deals with sentencing orders that can be made under the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act).

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 made substantial changes to sentencing law and commenced on 24 September 2018. Schedules 1 and 2 amend the Sentencing Act, Sch 3 amends the Crimes (Administration of Sentences) Act 1999 (the Administration Act) and Sch 4 amends other legislation. Substantial amendments were also made to the Crimes (Administration of Sentences) Regulation 2014 and the Crimes (Sentencing Procedure) Regulation 2017.

Good behaviour bonds, suspended sentences and home detention have been abolished as sentencing options.

The sentencing options available following the amendments are as follows:

1. 

s 10(1)(a) dismissal without proceeding to conviction

2. 

s 10(1)(b) order discharging the defendant under a conditional release order referred to in s 9(1)(b) without proceeding to conviction (CRO without conviction)

3. 

s 10(1)(c) order discharging the defendant on condition that the defendant enter into an agreement to participate in an intervention program

4. 

s 9(1)(a) conditional release order proceeding to conviction (CRO with conviction)

5. 

s 10A conviction with no other penalty

6. 

a fine as defined in s 4 of the Fines Act 1996

7. 

s 8(1) community correction order (CCO)

8. 

s 7(1) intensive correction order (ICO)

9. 

full-time imprisonment.

Specific sentencing provisions for domestic violence offences have been enacted (see further discussion below at [10-140]).

[10-140] Sentencing provisions concerning domestic violence offences

In addition to the purposes of sentencing found in s 3A Sentencing Act, 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: s 4A. 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: s 4A(3).

A court is not required to impose full-time detention or a supervised order if the court is satisfied that a different sentencing option is more appropriate in the circumstances of the case and records its reasons for reaching that view: s 4A(2).

The court must consider the safety of the victim of the offence before imposing a community correction order or conditional release order on a person guilty of a domestic violence offence: s 4B(3).

A court cannot make an order for an ICO unless it 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 ICO or for some other reason: s 4B(1).

If a 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: s 4B(2).

[10-160] Conditions of CROs, CCOs and ICOs generally

CROs, CCOs and ICOs each have standard conditions that must be imposed. Standard conditions for CROs and CCOs are that the offender must not commit any offence and must appear before court during the term of the order when called upon to do so: ss 98(2), 88(2). The standard conditions of an ICO are that the offender must not commit any offence and must submit to supervision by a community corrections officer: s 73(2).

A range of additional conditions may be imposed by a court depending on the sentencing option concerned (see further discussion within each option below). A CRO or a CCO may include a supervision condition involving supervision by Community Corrections. Such a condition cannot be imposed on an offender who resides or intends to reside in another State or Territory: CRO s 99(3A); CCO s 89(4B). See further [10-320]. The offender’s obligations under a supervision condition for a CRO or CCO are set out in cl 188 of the Crimes (Administration of Sentences) Regulation 2014.

A supervision condition must be imposed for a CRO, CCO and ICO for an offender sentenced for a domestic violence offence unless the court is satisfied a different sentencing option is more appropriate in the circumstances of the case and records its reasons for reaching that view: s 4A(2).

Apart from supervision, an additional condition may include:

  • a rehabilitation or treatment condition

  • an abstention condition requiring abstention from alcohol or drugs

  • a non-association condition

  • a place restriction condition

  • a community service work condition

  • a curfew condition

  • an electronic monitoring condition

  • a home detention condition.

Not all of the above conditions are available for each order. See discussion below for additional conditions available for CROs [10-260], CCOs [10-320] and ICOs [10-340].

A court may also impose further conditions providing the conditions are not inconsistent with the standard or additional conditions: CRO s 99A(2), CCO s 90 and ICO s 73B.

The court may limit the period during which an additional condition or further condition is in force: CRO ss 99(4), 99A(3); CCO ss 89(5), 90(3); ICO ss 73A(4), 73B(3).

For CROs and CCOs the court may, at the time of sentence, or subsequently, impose, vary or revoke additional conditions or further conditions on application of a community corrections officer, juvenile justice officer or the offender: CRO ss 99(1), 99A(1); CCO ss 89(1), 90(1). Clause 13 Crimes (Sentencing Procedure) Regulation 2017 sets out the procedures for the imposition, variation, or revocation of additional or further conditions. The court may refuse an offender’s application if it is “without merit”: CRO s 100(1); CCO s 91(1).

Under the Administration Act a community corrections officer may, by order in writing and subject to the regulations, suspend the application of conditions imposed on an offender by the court for a period or periods or indefinitely: CRO s 108E; CCO s 107E; and ICO s 82A.

[10-180] Multiple orders

Part 2 Div 4C provides for the scenario where multiple types of orders (ie an ICO, CCO or CRO) have been imposed on an offender. Two or more relevant orders can be in force at the same time in respect of two or more offences in relation to the same offender: s 17F(2). In this context, an ICO prevails over a CCO, and a CCO prevails over a CRO: s 17F(3). If there is an inconsistency as to how the orders operate together, a condition of an ICO prevails over a condition of a CCO, and a condition of a CCO prevails over a condition of a CRO: s 17F(4).

Where a court is considering imposing a community service work condition when the defendant is already subject to a condition of that kind, the new order may not be made if the sum of:

(a) 

the number of hours of community service work to be performed under the new order, and

(b) 

the number of hours of community service work remaining to be performed under any other relevant order (an “existing order”) exceeds 750 hours if any one of the orders is a ICO or 500 hours if all the orders are CCOs: s 17G.

Section 17H addresses curfew conditions under multiple orders. Section 17H(3) applies where all of the orders are CCOs. Section 17H(4) applies if at least one order is an ICO and at least one is a CCO.

[10-200] Assessment reports

Division 4B (ss 17B–17D) makes provision for assessment reports by community correction officers. The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender: s 17B(2).

Generally, a court may request but is not obliged to request an assessment report: s 17C(1)(a).

Section 17C(1)(b) provides a request for an assessment report may be made at the following times only:

(i) 

after finding an offender guilty of an offence and before a sentence is imposed

(ii) 

during sentencing proceedings after a sentence of imprisonment has been imposed on the offender

(iii) 

during proceedings to impose, vary or revoke an additional or further condition on a community correction order or conditional release order that has been made in respect of the offender

(iv) 

during proceedings to correct a sentencing error in accordance with s 43

(v) 

during proceedings to re-sentence an offender after a court has revoked the offender’s community correction order or conditional release order

(vi) 

during proceedings to determine an appeal against sentence

(vii) 

any other times prescribed by the regulations.

For matters addressed in assessment reports and in home detention assessment reports, see cll 12A and 12B Crimes (Sentencing Procedure) Regulation 2017.

Generally an assessment report will cover background, community service and supervision, however a court may request such a report also include an assessment for home detention (where a sentence of imprisonment has been imposed: s 17D(3)).

An assessment report may also be limited to a specific purpose, such as a community service work or home detention assessment only, if the court only requires that specific information (see below for special provisions regarding assessment reports and the imposition of these particular conditions).

If there is a particular issue to be canvassed by the community correction officer preparing the report, this should be specified in the request, for example, drug, alcohol, gambling, financial counselling, anger management, etc.

Assessment reports for home detention and community service work

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.

Psychiatric/psychological assessment

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.

[10-220] Deferral for rehabilitation or other purpose

Section 11 of the Act provides the court may make an order deferring sentencing similar to the common law power to remand a defendant (see Griffiths v The Queen (1977) 137 CLR 293 abolished by s 101 of the Act).

A court that finds a person guilty of an offence (whether or not it proceeds to conviction), can adjourn the proceedings to a specified date, to assess the offender’s rehabilitation or for any other appropriate purpose. If sentence is deferred for this purpose, the adjournment from the finding of guilt to sentence, cannot be greater than 12 months in total: s 11. This provision in no way affects the court’s other powers to adjourn proceedings.

For discussion of principles regarding application of s 11: see SBB Deferral for rehabilitation or other purpose at [5-400]ff.

During the adjournment the defendant can be granted conditional bail consistent with the rehabilitation requirements.

[10-240] No conviction recorded — s 10(1)(a) Crimes (Sentencing Procedure) Act 1999

Where a court finds an offence proved following a plea of guilty or a defended hearing, but decides not to convict the defendant, there can be an outright dismissal. Costs, compensation and restitution may be ordered: s 10(4).

Traffic offences and s 10

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 SBB Dismissal of charges and conditional discharge at [5-000]ff. The non-suitability of the application of the section to various offences is discussed.

[10-260] Conditional Release Order (CRO)

See also Non-custodial sentences — Table at [10-480].

A conditional release order (CRO) means an order referred to in s 9: s 3. Instead of imposing a fine or imprisonment (or both) a court that finds a person guilty of an offence may, make a CRO discharging the person: s 9(1).

Section 9(3) provides that:

  • a fine and a CRO cannot be imposed in respect of the same offence; and

  • a CRO with a conviction may be made as an alternative to imposing a fine.

The maximum term of a CRO is 2 years: s 95. A CRO commences on the date it is made: s 96.

The court may make a CRO either if the court proceeds to conviction or if it does not proceed to conviction but makes an order under s 10(1)(b): s 9(1)(b).

In determining whether to impose a CRO with conviction, the court is obliged to consider the factors outlined in s 9(2).

Section 9 is subject to the provisions of Pt 8 (Sentencing procedures for conditional release orders): s 9(4).

Conditions of a CRO

A CRO is subject to three types of conditions:

(a) 

the standard conditions the court must impose at the time of sentence under s 98,

(b) 

additional conditions which may be imposed under s 99, and

(c) 

further conditions which may be imposed under s 99A.

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).

Suspension of conditions by community corrections officer

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:

  • by order in writing suspend the application of a supervision condition to an offender for a period or periods or indefinitely (s 108E(2)), or

  • by order given orally or in writing suspend the application of a non-association condition, or place restriction condition for a period or periods: s 108E(3).

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).

Breach and revocation of a CRO

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).

Sample Order — Conditional Release Order (CRO) (without conviction) s 10(1)(b)/s 9(1)(b)

Sample order — Conditional Release Orders (CRO) (with conviction) s 9(1)(a)

[10-280] Section 10A conviction with no other penalty

Section 10A provides that “a court that convicts an offender may dispose of the proceedings without imposing any other penalty”. It is suggested that an appropriate use of the section is where an offender is serving a sentence of imprisonment and is before the court on offences where the maximum penalty is a fine.

An order under s 10A does not operate to defeat automatic statutory periods of licence disqualification that are imposed upon conviction for certain driving offences.

For further discussion: see SBB Conviction with no other penalty at [5-300].

[10-300] Fines

Means to pay

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].

Time to pay

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.

Moiety

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.

Penalty units

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 SBB Fines at [6-100]ff.

[10-320] Community Correction Order (CCO)

See also Non-custodial sentences — Table at [10-480].

A community correction order (CCO) means an order referred to in s 8: s 3. Section 8(1) provides that a court that has convicted a person of an offence may, instead of imposing a sentence of imprisonment on the offender, make a CCO. A fine can be imposed in addition to a CCO.

A CCO is not available for an offence with a maximum penalty of a fine only. It can only be imposed for an offence which carries a sentence of imprisonment.

If the offence is a domestic violence offence, the court must consider the safety of the victim of the offence before making the order: s 4B(3).

The term of a CCO is the period specified in the order: s 85(1). The maximum term of a CCO is 3 years: s 85(2).

A CCO commences on the date on which it is made: s 86.

Section 8 is subject to the provisions of Pt 7 (Sentencing procedures for community correction orders): s 8(3).

Conditions of a CCO

A CCO is subject to the three types of conditions:

(a) 

standard conditions which must be imposed by the court at the time of sentence under s 88,

(b) 

additional conditions which may be imposed under s 89, and

(c) 

further conditions which may be imposed under s 90.

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:

  • a curfew (not exceeding 12 hours in any period of 24 hours)

  • community service work (not exceeding 500 hours or the number of hours prescribed in the regulation, whichever is lesser)

  • rehabilitation or treatment programs

  • alcohol or drug abstention

  • non-association with particular persons

  • place restrictions

  • supervision.

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:

(a) 

100 hours — for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or

(b) 

200 hours — for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or

(c) 

500 hours — for offences for which the maximum term of imprisonment provided by law exceeds 1 year.

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:

(a) 

6 months — if the number of hours of community service work required to be performed does not exceed 100 hours or

(b) 

12 months —if the number of hours of community service work required to be performed exceeds 100 hours but does not exceed 300 hours or

(c) 

18 months — if the number of hours of community service work required to be performed exceeds 300 hours but does not exceed 500 hours.

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).

Suspension of conditions by community corrections officer

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:

  • by order in writing suspend the application of a supervision condition to an offender for a period or periods or indefinitely (s 107E(2)), or

  • by order given orally or in writing, suspend the application of a curfew condition, non-association condition, or place restriction condition for a period or periods: s 107E(3).

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).

Breach of a CCO

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).

Sample Order — Community Correction Order

[10-340] Intensive correction order (ICO)

See also Custodial sentences — Table at [10-460].

Section 7(1) 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 or sentences be served by way of intensive correction in the community.

If a court makes an order under s 7(1) the court is not to set a non-parole period for the sentence: s 7(2).

Section 7 does not apply to an offender who is under the age of 18 years: s 7(3).

Section 7 is subject to the provisions of Pt 5 (Sentencing procedures for intensive correction orders): s 7(4). Part 5 applies where a court is considering, or has made, an ICO: s 64.

The term of an ICO is the same as the term or terms of imprisonment in respect of which the order is made unless the ICO is sooner revoked: s 70. Unless sooner revoked, an offender’s ICO expires at the end of the term of the sentence or sentences to which it relates: s 83 Administration Act.

An ICO commences on the date the order is made unless it is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment the subject of an ICO: s 71(1)–(2).

Restrictions on power to make an ICO

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:

(a) 

the duration of the term of any individual term of imprisonment exceeds 2 years and

(b) 

the duration of the term of imprisonment imposed for all the offences exceeds 3 years: s 68(3).

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

(a) 

the contents of any assessment report obtained in relation to the offender and

(b) 

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 such an order.

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).

ICOs and Assessment Reports

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:

If the only purpose of a request for a sentencing report is to assess the offender’s suitability for home detention (the nature and length of the sentence having already been determined), the original sentencing court does not have to consider themselves part heard unless the particular circumstances of the proceedings/offender warrant doing so.

Conditions of an ICO

An ICO order is subject to four types of conditions:

(a) 

standard conditions which must imposed by the court at the time of sentence under s 73

(b) 

any additional conditions which may be imposed under s 73A

(c) 

any further conditions which may be imposed under s 73B, and

(d) 

any conditions imposed by the State Parole Authority under ss 81A or 164 of the Administration Act.

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: ss 73(1), 73(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:

  • home detention

  • electronic monitoring

  • curfew

  • community service work (not exceeding 750 hours or the number of hours prescribed by the regulation, whichever is the lesser (see below))

  • a rehabilitation or treatment condition

  • alcohol or drug abstention

  • a non-association condition

  • a place restriction condition.

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:

(a)

100 hours — for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or

(b)

200 hours — for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or

 

(d)

750 hours — if the order is an ICO, for offences for which the maximum term of imprisonment provided by law exceeds 1 year.

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:

(a) 

6 months — if the number of hours of community service work required to be performed does not exceed 100 hours

(b) 

12 months — if the number of hours of community service work required to be performed exceeds 100 hours but does not exceed 300 hours

(c) 

18 months — if the number of hours of community service work required to be performed exceeds 300 hours but does not exceed 500 hours, or

(d) 

2 years — if the number of hours of community service work required to be performed exceeds 500 hours.

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).

Suspension of conditions by community corrections officer

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:

  • by order in writing suspend the application of a supervision condition to an offender for a period or periods or indefinitely (s 82A(2)), or

  • by order given orally or in writing, suspend the application of a curfew condition, non-association condition, or place restriction condition for a period or periods: s 82A(3).

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).

Post-sentence breach and revocation of an ICO

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

(a) 

are imposed at the time of sentence by the sentencing court under the Crimes (Sentencing Procedure) Act 1999, and

(b) 

may be imposed, varied or revoked by the Parole Authority.

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

(a) 

impose any conditions on an intensive correction order, or

(b) 

vary or revoke any conditions of an intensive correction order, including conditions imposed by the sentencing court: s 81A.

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).

Sample Order — Intensive Correction order

Interaction with other sentencing options

In Douar v R (2005) 159 A Crim R 154, Johnson J at [70]–[72] described the following three-step approach to sentencing:

1. 

Are there any alternatives to a sentence of imprisonment?

2. 

If not, what should the term of the sentence be?

3. 

Once the length of the term has been determined, is there any alternative to full-time imprisonment available, and should it be used?

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 will be 2 years or less: s 7.

[10-360] Sentences of imprisonment

Please see the table of Custodial sentences at [10-460].

Magistrates will find most helpful the discussion on the purposes of sentencing at s 3A: see SBB Purposes of sentencing at [2-200]ff.

When sentencing an offender to imprisonment the court may impose a fixed term or a term comprised of a non-parole period (NPP) and the total term (TT). The NPP is the minimum period for which the offender must be kept in detention in relation to the offence. If the term is six months or less, a non-parole period cannot be set: s 46. If the term is greater than six months the court has a discretion to decline to set a non-parole period: s 45. The balance of the term must not exceed one-third of the NPP unless the court decides there are special circumstances: s 44. Reasons must be given for finding special circumstances. On the issue of special circumstances, see R v Simpson (2001) 53 NSWLR 704; R v Fidow [2004] NSWCCA 172.

Checklist

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

Preliminary matters

  • The defendant must have been “convicted”. For the meaning of “convicted”, see Maxwell v The Queen (1996) 184 CLR 501 at [9], [15].

  • The defendant must be before the court. Imprisonment cannot be imposed in the defendant’s absence: s 25 (issue a warrant if appropriate: s 25(2)).

  • All alternatives to imprisonment must be considered and rejected before sentencing to full-time imprisonment: s 5. It is good practice to refer to the section when passing sentence: R v Cousins (2002) 132 A Crim R 444 at [33].

  • If the defendant is serving a sentence at present, enquire if it is a fixed term, a non-parole period, balance of parole, ICO or home detention. Confirm the existing release date.

  • If imposing a sentence of six months or less, reasons must be given, including reasons for why all alternatives were not appropriate: R v Parsons [2002] NSWCCA 296.

Setting the non-parole period and total term

Section 44 provides:

(1) 

When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is the minimum period for which the offender must be kept in detention in relation to the offence).

(2) 

The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the court decided that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

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 SBB Setting terms of imprisonment at [7-500].

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

Commencement and expiry

  • Note the starting date of the sentence, the date on which the defendant is eligible for release or, if relevant, release on parole.

  • The starting date may be backdated: s 47(2)(a). While the court must take into account any pre-sentence custody when deciding whether or not to backdate a sentence, backdating is not limited to that situation. The starting date may only be a date after the sentence is imposed if it is a consecutive sentence. The starting date for a consecutive sentence is the date on which the offender is eligible for parole.

  • Days of release are calculated as follows: a sentence (unless for weeks or days) imposed on (for example) the 18th of the month, will end on the 17th day of the month in which it expires.

  • The Judicial Commission of NSW has online (accessible through JIRS) a sentencing calculator which will calculate the dates for release and if relevant, a date for the conclusion of the parole period.

Parole conditions

For sentences of full-time imprisonment of three years or less the court is no longer required to direct release of the offender on parole following the repeal of ss 50–51B Administration Act by the Parole Legislation Amendment Act 2017. Section 158 of the Administration Act provides for statutory parole orders whereby offenders are subject to the same standard conditions as a parole order made by the State Parole Authority. The Parole Legislation Amendment Act 2017 also introduced a back-end scheme of re-integration home detention under Pt 5A.

[10-380] Consecutive sentences

Section 58 sets numerical limitations on consecutive sentences imposed by the Local Court. Section 58 is a very technical provision and close attention must be given to the language of the section.

The previous s 444 Crimes Act was moved to s 58 and was amended by the Crimes Legislation Further Amendment Act 2003. Section 58 removes the restriction on the number of sentences that can be made consecutive in the Local Court. The section also empowers magistrates to accumulate sentences to a total of five years subject to limits set out below.

The restriction to five years does not arise if the existing sentence was imposed other than by a Local Court, and the new sentence relates to escape lawful custody or an assault against a correctional or juvenile justice officer. If the existing sentence was imposed by the Local Court, the total accumulated sentence for the type of assault matters referred to is five years and six months.

When a court sentences an offender to imprisonment for an assault or offence against the person, committed while the offender was a convicted inmate of a correctional centre, the sentence must be consecutive unless the court exercises the discretion set out in s 56. This is still subject to the limits in s 58.

When a court sentences an offender to a term of imprisonment for the offence of escape lawful custody, the sentence must be consecutive: s 57. As this is still subject to the limitations in s 58 it is prudent to establish the offender’s true custodial status before the prosecution elects summary jurisdiction. If not, the court will be confronted with the s 57 requirement to impose a consecutive sentence and the s 58 prohibition on imposing a consecutive sentence. If the offence is dealt with on indictment this problem will not arise in the District Court: see SBB Concurrent and consecutive sentences at [8-260].

Orders

Warrant to bring offender to court for sentence — s 25(2)
Decision to sentence to imprisonment
Fixed term — six months or less
Fixed term — greater than six months, no NPP
Term involving a non-parole period
If the balance of the term exceeds one-third of the NPP
Consecutive sentences
Release date
If sentence following plea of guilty

[10-400] Sentencing by reference to outstanding charges

Taking other charges into account

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:

  • at least one offence (the principal offence) must have been found proved — by plea of guilty or after hearing

  • a prescribed form of list of charges must have been prepared, listing one or more further offences with which the defendant has been charged, but not convicted

  • all the offences must fall within the jurisdiction of the court, either with or without the defendant’s consent — the District Court and Supreme Court can take summary offences into account

  • the document must be signed by the defendant, and the DPP, or a person authorised by the DPP or a prescribed person — a police officer is prescribed for this purpose

  • the defendant must have been served with the document

  • when dealing with the offender for the principal offence, the magistrate must ask if the defendant admits guilt for any or all of the listed offences, and wishes them to be taken into account when sentenced

  • a sentence can then be imposed for the offence found proved, but taking into account the other offences

  • the sentence imposed must not exceed the maximum penalty available for the offence found proved. Any penalty, including a s 10 dismissal, CRO, fine, CCO, ICO or imprisonment can be imposed: see definition of “penalty” in s 31

  • no conviction is recorded for offences taken into account, but orders for restitution, compensation, costs, forfeiture, disqualification or suspension of licences can all be made in respect of such offences as if a conviction had been recorded: s 34

  • the magistrate is to certify, on the form containing the additional offences, that they have been taken into account.

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

[10-420] Correcting sentencing errors

Re-opening of proceedings

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.

Application to re-open

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.

Right to hearing

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).

Procedural irregularities

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 SBB Correction and adjustment of sentences at [13-900]ff.

[10-440] Court orders for identification

Where a court finds any of the following offences proved, it may order that the defendant attend a police station and submit to the officer-in-charge for the taking of particulars necessary for identification. This can include photographs, fingerprints and palm-prints: s 134(2) Law Enforcement (Powers and Responsibilities) Act 2002. The court must warn the defendant that a failure to comply could result in their arrest without warrant and being taken into custody for such time as is reasonably necessary for the taking of the particulars in accordance with the order: s 134(3) Law Enforcement (Powers and Responsibilities) Act.

The offences include the following:

  • any indictable offence

  • an offence under s 117 Road Transport Act 2013 of negligent driving occasioning death or grievous bodily harm, furious or reckless driving or driving at a speed or in a manner dangerous to the public

  • an offence under the Road Transport Act 2013 of:

    • menacing driving: s 118

    • special/low/mid/high range PCA — whether driving or occupying the driver’s seat and attempting to put the car in motion: s 110(1)–(5)

    • refuse breath analysis/wilfully alter concentration: Sch 3 cll 16, 18

    • prevent taking of blood sample/urine sample, or wilfully alter blood sample: Sch 3 cll 17, 18

    • driving under the influence: s 112(1)(a) or (b)

    • fail to stop and give assistance after accident: s 146

    • an offence under ss 5 or 6 Prevention of Cruelty to Animals Act 1979 of cruelty or aggravated cruelty to animals

  • an offence prescribed by the regulations. None are presently prescribed.

This order can be made immediately after sentencing, or before sentencing (on finding an offence to which this section applies has been proven) if the court is satisfied it will resolve any doubt about the person’s identity.

Under s 63, a power exists for police or correctional officers (or any other person specified by court order) to take identifying particulars of an offender as soon as practicable after an offender is sentenced to imprisonment. Non-compliance with this can lead to the court revoking any related order for an ICO: s 63(2).

See s 3ZL Crimes Act 1914 (Cth) for similar provisions (the power to order identification) with respect to Commonwealth offences.

[10-460] Custodial sentences — Table

Custodial sentences

Subject to availability for the particular offence. All section references are to the Crimes (Sentencing Procedure) Act 1999
Type of custody Maximum length

Fix non-parole period?

Impose for consecutive or aggregate sentences?

Part-heard upon referral for assessment?

Standard conditions Additional conditions Restrictions on additional conditions? Further conditions Assessment reports

Intensive Correction Order (ICO)

2 y for one offence: s 68(1)

3 y for aggregate sentence: s 68(2).

No: s 7(2) (but refer to s 7(1) — an ICO is only available after sentencing an offender to imprisonment)

Yes — can impose for aggregate sentence or consecutive sentence, so long as:

(a) 

duration of any individual term of imprisonment imposed does not exceed 2 y, and

(b) 

duration of term of imprisonment imposed for all offences does not exceed 3 y: s 68(3).

However, note limitations if any one or more offence is a prescribed sexual offence, a firearms offence (s 67) or a domestic violence offence (ss 4A and 4B).

No — including where referred for home detention assessment (the nature and length of the sentence having already been determined), unless magistrate considers the particular circumstances of the proceedings/offender warrant considering self part-heard.

(1) 

Must not commit any offence; and

(2) 

must submit to supervision by community corrections officer: s 73(2).

  • Home detention

  • Electronic monitoring

  • Curfew

  • Community service work

  • Rehabilitation or treatment

  • Abstention

  • Non-association

  • Place restriction: s 73A(2).

Must impose at least one additional condition at time of sentence (s 73A(1)), unless satisfied there are exceptional circumstances (must record reasons where not imposing) (s 73A(1A)).

May limit term additional condition is in force: s 73A(4).

Yes

Community service work:

  • cannot be imposed unless assessment report states offender suitable: s 73A(3)

  • cannot exceed 750 hours, or the number of hours prescribed by the regulations for that class of offence, whichever is less (s 73A(2)(d); cl 14(1) CSP Reg)

  • period during which community service work condition in force must not be less than period prescribed by regulations: s 73A(5); cl 14(2) CSP Reg.

Home detention:

  • cannot be imposed unless assessment report obtained which states offender suitable: ss 17D(2)–(4), 73A(3)

    Note: cannot request assessment for home detention unless sentence of imprisonment imposed: s 17D(3)

Must be consistent with standard and additional conditions: s 73B(2).

May limit term further condition in force: s 73B(3).

Cannot impose ICO unless assessment report obtained: s 17D(1).

Not required to obtain a report if court satisfied sufficient information before it to justify making order without report: s 17D(1A).

Assessment report takes 6 wks (NB: this report no longer addresses suitability for ICO, but instead provides information on background, risk assessment, supervision and suitability for community service work).

Assessment report with home detention assessment takes 6 wks (only available after imprisonment imposed).

Home detention assessment only takes 3 wks (only available after term of imprisonment imposed and only if assessment report has previously been obtained).

Full-time custody Cumulative maximum of 5 y.

Yes, if appropriate and total term is longer than 6 mths.

Yes, up to 5 y.

Yes — can impose aggregate.

Yes — can accumulate consecutive sentences up to 5 y

No NA NA

NA

NA

See further Parole Legislation Amendment Act 2017 — court no longer required to make parole order when sentence less than 3 y; offender now subject to statutory parole order for terms of imprisonment of 3 y or less where non-parole period imposed on sentence.

Type of custody Commencement of sentence

Restrictions

Ineligibility

Who deals with the breach? Consequence of breach

ICO

Commences on date order made unless the ICO is to be served consecutively (or partly concurrently and partly consecutively) with other sentence of imprisonment subject to ICO: s 71.

Community safety must be paramount consideration when deciding whether to impose an ICO: s 66(1). When considering community safety, assess whether ICO or full-time detention more likely to address risk of reoffending: s 66(2).

Must also consider s 3A, any relevant common law principles and any other matters court thinks relevant: s 66(3).

Domestic violence offences:

  • not to be made unless the court satisfied victim, and any person with whom offender likely to reside, will be adequately protected (whether by conditions of ICO or for some other reason): s 4B(1)(a)

  • aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, must not be made unless the court is satisfied of the matters referred to above: s 4B(1)(b).

Where offender resides, or intends to reside, in another State or Territory:

  • ICO cannot be made unless the State or Territory is declared by the regulations to be an approved jurisdiction: s 69(3).

    Note: no states or territories are currently declared by the regulations to be approved jurisdictions for the purposes of the above.

Ineligible if offender under 18 y: s 7(3).

Ineligible for offences listed in s 67(1), which includes prescribed sexual offences and offence involving discharge of firearm (as defined in s 67(2)): s 67(1). Extends to a sentence of imprisonment for 2 or more offences, any one of which includes an offences referred to in s 67(1).

Limits on term of imprisonment:

  • must not be made in respect of a single offence term of imprisonment imposed for the offence exceeds 2 years: s 68(1)

  • must not be made in respect of an aggregate sentence of imprisonment if the duration of the term of the aggregate exceeds 3 years: s 68(2)

  • where two or more ICOs made with respect to two or more offences, must not be made if:

    (a) 

    the duration of any individual term of imprisonment exceeds 2 y, and

    (b) 

    the duration of the term of imprisonment for all offences exceeds 3 y: s 68(3).

Commissioner of Corrective Services/State Parole Authority (where order imposed for State offence)

Court (where order imposed for Commonwealth offence)

If revoked: full-time custody

Full-time custody

The sentence commences on the date on which the court imposes the sentence, or the sentence can be backdated to reflect pre-sentence custody, or the sentence can be forward-dated if it is to be served consecutively or partly consecutively. NA

NA

Parole Board If parole is revoked: full-time custody

[10-480] Non-custodial sentences — Table

Non-custodial sentences

Subject to availability for the particular offence. All section references are to the Crimes (Sentencing Procedure) Act 1999
Type of order Maximum length

Conviction recorded?

Commencement of sentence

Fine for same offence?

Standard conditions Additional conditions Restrictions on additional conditions? Further conditions Domestic violence offence?

Dismissal (without conviction) (s 10(1)(a))

NA

No

On date order made

No

NA NA NA NA Must be satisfied more appropriate than full-time detention or supervised order and must record reasons: s 4A(2)

Discharge under Conditional Release Order (CRO) (without conviction) (ss 10(1)(b); 9(1)(b))

2 y No

On date order made

No: s 9(2)(b)

(1) 

Must not commit offence; and

(2) 

must appear before court: s 98(2)

  • Rehabilitation/ treatment

  • Abstention

  • Non- association

  • Place restriction

  • Supervision: s 99(2).

May limit term additional condition is in force: s 99(4).

Yes — cannot impose:

  • home detention,

  • electronic monitoring,

  • curfew, or

  • community service work: s 99(3).

If offender resides or intends to reside in another State or Territory:

  • cannot impose supervision condition unless other State/Territory declared by regulations to be an approved jurisdiction: s 99(3A).

    Note: no States or Territories are currently declared by the regulations to be approved jurisdictions for the purposes of the above.

Must be consistent with standard and additional conditions: s 99A(2).

May limit term further condition is in force: s 99A(3).

Must impose supervision condition on order, unless satisfied unsupervised order more appropriate and must record reasons: s 4A(2).

Must consider safety of victim before imposing the CRO: s 4B(3).

Discharge on condition enter into intervention program (s 10(1)(c))

NA No

On date order made.

No

NA NA NA NA Must be satisfied more appropriate than full-time detention or supervised order and must record reasons: s 4A(2).

Conditional Release Order (CRO) (with conviction) (s 9(1)(a))

2 y: s 95(2) Yes

On date order made.

No — can only impose as alternative to fine: s 9(3)(b).

(1) 

Must not commit offence; and

(2) 

must appear before court: s 98(2).

  • Rehabilitation or treatment

  • Abstention

  • Non- association

  • Place restriction

  • Supervision: s 99(2).

May limit term additional condition is in force: s 99(4).

Yes — cannot impose:

  • home detention,

  • electronic monitoring,

  • curfew, or

  • community service work: s 99(3).

If offender resides or intends to reside in another State or Territory:

  • cannot impose supervision condition unless other State/ Territory declared by regulations to be an approved jurisdiction: s 99(3A).

    Note: no States or Territories are currently declared by the regulations to be approved jurisdictions.

Must be consistent with standard and additional conditions: s 99A(2).

May limit term further condition is in force: s 99A(3).

Must impose supervision condition on order, unless satisfied unsupervised order more appropriate and must record reasons: s 4A(2).

Must consider safety of victim before imposing the CRO: s 4B(3).

Conviction with no other penalty (s 10A)

NA Yes

NA

No

NA NA NA NA Must be satisfied more appropriate than full-time detention or supervised order and must record reasons: s 4A(2).

Fine (as defined in s 4 of Fines Act 1996)

NA NA

NA

(Generally 28 days to pay; can apply to registrar for additional time: s 7 Fines Act).

No statutory limit on the aggregate of fines which may be imposed.

NA

Court must take into account accused’s capacity to pay.

Maximum amount of fine is generally amount prescribed for offence.

For Table 1 offences, maximum is 100 pu or maximum provided by law for the offence, whichever is lesser.

For Table 2 offences, see maximum fines outlined in s 268(2) Criminal Procedure Act 1986.

NA NA NA If imposing fine only, or in addition to other non-custodial order, must be satisfied more appropriate than full-time detention or supervised order and must record reasons: s 4A(2).

Community Corrections Order (CCO) (s 8)

3 y: s 85(2). Yes

On date order made: s 86.

Yes

(1) 

Must not commit offence; and

(2) 

must appear before court during term of order: s 88(2).

  • Curfew

  • Community service work

  • Rehabilitation or treatment

  • Abstention

  • Non-association

  • Place restriction

  • Supervision: s 89(2).

Yes — cannot impose home detention or electronic monitoring: s 89(3).

Community service work condition:

  • cannot be imposed unless assessment report states offender is suitable: s 89(4).

  • cannot exceed 500 hours, or the number of hours prescribed by the regulations for that class of offence, whichever is less (s 89(2)(b); see cl 14 of CSP Reg)

  • period during which community service condition in force must not be less than period prescribed by regulations: s 89(4C); cl 14(2) CSP Reg.

Curfew:

  • cannot impose curfew exceeding 12 hr in any 24 hr period: s 89(3).

If offender resides or intends to reside in another State or Territory:

  • cannot impose supervision condition unless other State/ Territory declared by regulations to be an approved jurisdiction: s 89(4A).

  • cannot impose community service work condition unless satisfied offender is able and willing to travel to NSW to complete community service work, or the other State/ Territory declared by regulations to be an approved jurisdiction: s 89(4B).

    Note: no States or Territories are currently declared by the regulations to be approved jurisdictions.

Must be consistent with standard and additional conditions: s 90(2).

May limit term further condition is in force: s 90(3).

Must impose supervision condition on order, unless satisfied unsupervised order more appropriate and record reasons: s 4A(2).

Must consider safety of victim before imposing the CCO: s 4B(3).

Type of custody Procedure for breach

Consequences of breach

Dismissal (without conviction) (s 10(1)(a))

NA

NA

Discharge under Conditional Release Order (CRO) (without conviction) (ss 10(1)(b); 9(1)(b)).

Conditional Release Order (CRO) (with conviction) (s 9(1)(a)).

Community Corrections Order (CCO) (s 8).

If suspect breach, offender may be called up by court who made order, court of like jurisdiction, or (with offender’s consent) court of superior jurisdiction: s 108C for CROs; s 107C Crimes (Administration of Sentences) Act 1999 (CAS Act) for CCOs.

See cl 329 of Crimes (Administration of Sentences) Regulation 2014 for the procedure for dealing with breaches of CROs and CCOs. Generally, the court has discretion to call the offender up, and may deal with the matter in open court or in chambers: cll 329(2), (3) and (6).

If breach established may:

  • take no action

  • vary or revoke conditions (other than standard conditions) or impose further conditions, or

  • revoke order: s 108C CAS Act for CROs; s 107C CAS Act for CCOs.

If revoked, may re-sentence offender: s 108D CAS Act for CROs; s 107D CAS Act for CCOs.

Discharge on condition enter into intervention program (s 10(1)(c)). NA — currently no effective mechanism to deal with breach. NA

[10-500] Sentencing reforms — Table of transitional provisions

Existing sentencing before commencement of amending Act Converted order under transition provisions of amending Act

Conditions of converted order

Term of converted order

Imposition, variation and revocation of conditions of converted order Breach of converted order Other notes

Home detention order (HDO) (under s 6 CSP Act before 24 September 2018).

Intensive Correction Order (ICO) with home detention condition (under s 7 as substituted by amending Act): Sch 2 cl 71(2) CSP Act.
  • standard conditions of an ICO (not commit an offence and submit to supervision)

  • home detention condition

  • any additional conditions imposed (and in force) under s 103(1)(b) or (c) or s 103(2)(a) CAS Act in force before 24 September 2018

  • any other conditions prescribed by or determined under the regulations: Sch 2 cl 71(4) CSP Act.

Same term as HDO: Sch 2 cl 71(5) CSP Act.

Applications for imposition, variation and revocation of conditions of converted order (ICO) determined by State Parole Authority: s 81A CAS Act. Breaches of converted order (ICO) dealt with by Community Corrections (CCNSW) and the State Parole Authority (SPA) pursuant to ss 163–164 of CAS Act. This includes where an alleged breach of an HDO occurred before 24 September 2018, and action with respect to the breach had not been commenced or completed: Sch 2 cl 86B(2) and (3) CSP Act.

Parole order:

  • Parole order made in relation to HDO ceases to have effect on and from 24 September 2018. Instead, period for which the offender would have been subject to parole order is to be served subject to standard conditions of an ICO only (not commit an offence and submit to supervision): Sch 2 cl 71(6) CSP Act.

Existing ICO (under s 7 CSP Act before commencement).

ICO (under s 7 as substituted by amending Act): Sch 2 cl 72(2) CSP Act.
  • standard conditions of ICO (not to commit an offence and submit to supervision)

  • any additional conditions imposed (and in force) under s 81(3) of CAS Act before the commencement of amending Act (any other conditions imposed under s 81 prior to 24 September 2018 cease to apply: Sch 2 cl 72(5)) CSP Act

  • a condition requiring offender undertake minimum 32 hours of community service work a month, as directed by community corrections officer (also subject to same conditions prescribed for purposes of s 82 of CAS Act for offender subject to community service work condition of an ICO): Sch 2 cl 72(3)(c) CSP Act

  • any other conditions prescribed by or determined under the regulations: Sch 2 cl 72(3) CSP Act

Same term as existing ICO: Sch 2 cl 71(5) CSP Act.

Applications for imposition, variation and revocation of conditions of converted order (ICO) determined by State Parole Authority: s 81A CAS Act.

If an application in relation to an existing ICO was pending before 24 September 2018, the application is transferred to the State Parole Authority: Sch 2 cl 86C(4)(a) CSP Act.

Breaches of converted order (ICO) are dealt with by CCNSW and SPA pursuant to ss 163–164 of CAS Act. This includes where an alleged breach of an HDO occurred before 24 September 2018, and action with respect to the breach had not been commenced or completed: Sch 2 cl 86B(2) and (3) CSP Act.  

Community Service Order (CSO) (under s 8 before 24 September 2018).

Community Correction Order (CCO) with community service work condition (under s 8 as substituted by the amending Act): Sch 2 cl 73(2) CSP Act.
  • offender must appear before court if called on

  • community service work condition

  • any other conditions prescribed by or determined under the regulations: Sch 2 cl 73(3) CSP Act

  • if the CSO was subject to a condition the offender participate in a development program under former s 90, the CCO is then subject to a condition that offender must comply with additional condition under s 89(2)(c) CSP Act (rehabilitation or treatment condition) until obligations relating to the development program have been fulfilled: Sch 2 cl 73(4A) CSP Act.

The CCO is taken to specify same number of hours of community service work as were specified in the CSO; hours remaining to be completed under CSO is number of hours to be completed under CCO: Sch 2 cl 73(4)(a) CSP Act.

The CCO expires either:

(a) 

12 months from date on which order made, if required number of hours less than 300; or

(b) 

18 months from the date on which the order made, if required number of hours is 300 of more, or

(c) 

if the order was extended for any further period before 24 September 2018, at the end of that further period: Sch 2 cl 73(4) CSP Act.

Court may impose, vary or revoke conditions of the converted order (CCO) on application: ss 89 and 90, Sch 2 cl 78(1) CSP Act.

If application made under ss 89 or 90 in relation to converted order, as far as practicable, the court must not make an order that would result in conditions of the CCO being more onerous than conditions that were available, in comparable circumstances, for the CSO prior to 24 September 2018: Sch 2 cl 78(2) CSP Act.

Pending extension applications:

  • applications under s 114 CAS Act for extension of relevant maximum period of CSO which are pending before 24 September 2018 are taken to be applications under s 89 CSP Act to vary the community service work condition of the CCO

  • the court may make any order under s 89 that it may make with respect to an application under that section: Sch 2 cl 86D(4).

Pending revocation applications:

  • applications to revoke the CSO under s 115(2)(a) CAS Act (failure to comply) which are pending before 24 September 2018 are taken to be applications under s 107C CAS Act to revoke the converted order (the CCO)

  • for applications to revoke the CSO under s 115(2)(b) CAS Act (in interests of justice) which are pending, the court may continue to deal with the application under s 115 as in force before 24 September 2018: Sch 2 cl 86D(5) CSP Act.

Court deals with breaches of the converted order as breach of CCO under ss 107C and 107D CAS Act. This includes where an alleged breach of a CSO occurred before 24 September 2018, and where action with respect to the breach had not been commenced or completed (Sch 2 cl 86D(2) and (3) CSP Act).

Sections 107C and 107D also apply to an alleged breach where the CSO expired not later than 1 month before the amending Act repealed s 115 CAS Act. However, in these circumstances ss 107C and 107D apply only in respect of matters arising during the term of the bond: Sch 2 cl 86D(8) and (9) CSP Act.

Existing warrants:

  • warrants issued under s 116 CAS Act before 24 September 2018 in connection with application for extension or revocation of the CSO under s 115 continue in force and authorise the offender to be brought before the court: Sch 2 cl 86D(6) and (7) CSP Act.

Good behaviour bond (under s 9 before commencement).

CCO (under s 8 as substituted by amending Act): Sch 2 cl 74(2) CSP Act.
  • standard conditions of CCO (not commit an offence and appear before court when called on to do so)

  • any conditions referred to in s 95(c) CAS Act imposed and in force before 24 September 2018

  • any other conditions prescribed by or determined under the regulations: Sch 2 cl 74(3) CSP Act

  • if supervision condition was imposed on s 9 bond before 24 September 2018, the offender is subject to the obligations in respect of such a condition prescribed under the CAS Regulation: Sch 2 cl 74(5) CSP Act

Expires on date set by sentencing court in relation to the s 9 bond: Sch 2 cl 74(4) CSP Act.

Court may impose, vary or revoke conditions of the converted order (CCO) on application: ss 89 and 90 CSP Act, Sch 2 cl 78(1) CSP Act.

As far as practicable, must not make an order that would result in conditions of CCO being more onerous than conditions that were available, in comparable circumstances, for the s 9 bond before 24 September 2018: Sch 2 cl 78(2) CSP Act.

Court deals with breaches of converted order as if breach of CCO under ss 107C and 107D CAS Act: Sch 2 cl 74(7) CSP Act. This includes alleged breaches which occurred before 24 September 2018, and where action with respect to the breach had not been commenced or completed: Sch 2 cl 86E(2) and (3) CSP Act.

If proceedings were pending before the court immediately before repeal of s 98 (breach of bond) on 24 September 2018, the court may have regard to matters raised before the repeal and may concur with any decisions made by court in that connection or may deal with all or any matters afresh: Sch 2 cl 86E(6) CSP Act.

Breach of expired bond:

  • If an expired s 9 bond was breached before the amending Act repealed s 100 CSP Act on 24 September 2018, and action with respect to the breach had not be commenced or completed before that date, then the matter is to be dealt with under ss 107C and 107D CAS Act in relation to the converted order (the CCO). For these purposes, the breach is taken to be a breach of the CCO. Sections 107C and 107D apply only in respect of matters arising during the term of the bond: Sch 2 cl 86E(8), (9) CSP Act.

Existing warrants:

  • Warrants issued under former s 98 before 24 September 2018 continue to have effect, and authorises police to arrest and bring the offender before the court: Sch 2 cl 74(6) CSP Act.

Failure to enter existing bond:

  • Where offender failed to enter into s 9 bond (as in force before the amending Act), court may sentence the offender in accordance with the CSP Act as in force following 24 September 2018: Sch 2 cl 85 CSP Act.

Refusal to participate in intervention program:

  • If offender exercises right under s 99A CSP Act not to participate or continue to participate in intervention program or plan arising out of the program, and action had not been taken or completed before 24 September 2018, then the matter is to be dealt with under ss 107C and 107D CAS Act in relation to the converted order (the CCO). For these purposes, the offenders decision is taken to be a breach of the order: Sch 2 cl 86E(7) CSP Act.

Good behaviour bond (under s 10(1)(b) before commencement)

Conditional Release Order (CRO) (under s 9 as substituted by the amending Act), without proceeding to conviction (pursuant to s 10(1)(b) as substituted by the amending Act): Sch 2 cl 75(2) CSP Act.
  • standard conditions of CRO (not commit an offence and appear before court when called on to do so): Sch 2 cl 75(3) CSP Act.

  • any conditions referred to in s 95(c) CSP Act imposed and in force before 24 September 2018: Sch 2 cl 75(3)(b) CSP Act.

  • any other conditions prescribed by or determined under the regulations: Sch 2 cl 75(3) CSP Act

  • if supervision condition was imposed on s 10 bond before 24 September 2018, the offender is subject to the obligations in respect of such a condition prescribed under the CAS Regulation: Sch 2 cl 75(5) CSP Act.

Expires on the date set by the sentencing court in relation to the s 10 bond: Sch 2 cl 75(4) CSP Act.

Court may impose, vary or revoke conditions of the converted order (CRO) on application: ss 99 and 99A: Sch 2 cl 78(1) CSP Act.

As far as practicable, must not make an order that would result in conditions of CRO being more onerous than conditions that were available, in comparable circumstances, for the s 10 bond before 24 September 2018: Sch 2 cl 78(2) CSP Act.

Court deals with breaches of converted order as if breach of CRO under ss 108C and 108D CAS Act: Sch 2 cl 75(7). This includes alleged breaches which occurred before 24 September 2018, and where action with respect to the breach had not been commenced or completed: Sch 2 cl 86E(2) and (3) CSP Act.

Breach of expired bond:

  • if an expired s 10 bond was breached before amending Act repealed s 100 CSP Act on 24 September 2018, and action with respect to the breach had not been commenced or completed before that date, then the matter is to be dealt with under ss 107C and 107D CAS Act in relation to the converted order (the CRO). For these purposes, the breach is taken to be a breach of the order. Sections 108C and 108D apply only in respect of matters arising during the term of the bond: Sch 2 cl 86E(8) and (9) CSP Act.

Existing warrants:

  • warrants issued under former s 98 before commencement of amending Act continue to have effect, and authorise police to arrest and bring the offender before the court: Sch 2 cl 75(6) CSP Act.

Failure to enter existing bond:

  • where offender failed to enter into a s 10(1)(b) bond (as in force before the amending Act), court may sentence the offender in accordance with CSP Act as in force following 24 September 2018: Sch 2 cl 85 CSP Act.

Refusal to participate in intervention program:

  • If offender exercises right under s 99A CSP Act not to participate or continue to participate in intervention program or plan arising out of the program, and action had not been taken or completed before 24 September 2018, then the matter is to be dealt with under ss 108C and 108D CAS Act in relation to the converted order (CRO). For these purposes, the offenders decision is taken to be a breach of the order: Sch 2 cl 86E(7) CSP Act.

Suspended sentence (under s 12 before commencement)

Suspended sentence continues despite repeal of s 12, subject to the amended CSP Act: Sch 2 cl 76(2) CSP Act.

NA

CSP Act and regulations continue to apply for up to 3 years from 24 September 2018: Sch 2 cl 76(3) and (5). If the suspended sentence is still in force at the end of that period, the offender must appear before the court to be re-sentenced: Sch 2 cl 76(6) CSP Act.

NA

Section 98 as in force before 24 September 2018 continues to apply to an alleged breach of a suspended sentence.

If the court revokes the bond under s 98:

(a) 

the suspended sentence order ceases to have effect; and

(b) 

the court must either:

(i) 

order the offender be sentenced or re-sentenced to imprisonment to be served in full-time detention under the amended Act, or

(ii) 

make an ICO under the amended Act.

Section 24 CSP Act applies, but with requirement must take into account:

(i) 

the fact the offender subject to a bond; and

(ii) 

anything done by the offender in compliance with obligations under the bond: Sch 2 cl 76(4) CSP Act.