Community-based orders generally

[3-500] Introduction

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (the amending Act), which commenced on 24 September 2018, amended the Crimes (Sentencing Procedure) Act 1999 to reform the community-based sentencing options available on sentence.

The amending Act abolished suspended sentences (previous s 12), home detention (previous s 6), community service orders (previous s 8) and good behaviour bonds (previous s 9), and restructured intensive correction orders (ICOs).

Two new sentencing orders, community correction orders (CCOs) and conditional release orders (CROs), were introduced to replace community service orders and good behaviour bonds, respectively.

The reforms are the NSW Government’s response to the NSW Law Reform Commission’s report Sentencing (Report No 139, 2013) and were aimed at preventing and reducing reoffending. In the Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill and cognate legislation, NSW, Legislative Assembly, Debates, 11 October 2017, p 1, the Attorney General (NSW), the Hon M Speakman SC, said the amending Act:

will introduce new, tough and smart community sentencing options that will promote community safety by holding offenders accountable and tackling the causes of offending.

In relation to “tackling the causes of offending”, the Attorney General said, in the Second Reading Speech, the reforms would “help offenders receive the supervision and programs that address their offending behaviour” (at p 2) and that the assessment reports prepared by community corrections would “advise courts about offenders’ risks, needs, suitability for work and other relevant details so that they can tailor the conditions of orders to offenders’ individual circumstances” (at p 2).

The statutory scheme for these community-based sentencing options 2017 sentencing reforms is contained in the relevant provisions of the following:

Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Regulation 2017
Crimes (Administration of Sentences) Regulation 2014.

The provisions governing ICOs, CCOs and CROs are discussed in detail in Intensive correction orders (ICOs) (an alternative to full-time imprisonment) at [3-600], Community correction orders (CCOs) at [4-400] and Conditional release orders (CROs) at [4-700] respectively.

The following Table summarises, for each community-based order, such key features as the maximum term, standard conditions, additional conditions and further conditions.

Order type	Intensive correction order (ICO) s 7	Community correction order (CCO) s 8	Conditional release order (CRO) s 9*
Maximum term	2 years: s 68(1) 3 years (s 53A aggregate or two or more cumulated sentences): s 68(2)–(3)	3 years: s 85(2)	2 years: s 95(2)
Standard conditions	The offender must not commit any offence: s 73(2)(a) The offender must submit to supervision by a community corrections officer: s 73(2)(b).	The offender must not commit any offence: s 88(2)(a) The offender must appear before the court if called on to do so at any time during the term of the CCO: s 88(2)(b).	The offender must not commit any offence: s 98(2)(a) The offender must appear before the court if called on to do so at any time during the term of the CCO: s 98(2)(b).
Additional conditions	The court must impose at sentence at least one additional condition, unless satisfied there are exceptional circumstances: s 73A(1)–(1A). Available conditions (s 73A(2)): Home detention Electronic monitoring Curfew Community service work (max 750 hours, or max hours prescribed by cl 14(1) of the regulations for class of offence, whichever is less) Participation in rehabilitation or treatment program Abstention condition (alcohol and/or drugs) Non-association condition Place restriction condition.	The court may, at sentence or subsequently on application, impose an additional condition: s 89(1). Available conditions (s 89(2)): Curfew (not exceeding 12 hours in any 24-hour period) Community service work (max 500 hours, or max hours prescribed by cl 14(1) of the regulations for class of offence, whichever is less) Participation in rehabilitation or treatment program Abstention condition (alcohol and/or drugs) Non-association condition Place restriction condition Supervision condition. Conditions which are not available** (s 89(3)): Home detention Electronic monitoring Curfew exceeding 12 hours in any 24-hour period.	The court may, at sentence or subsequently on application, impose an additional condition: s 99(1). Available conditions (s 99(2)): Participation in rehabilitation or treatment program Abstention condition (alcohol and/or drugs) Non-association condition Place restriction condition Supervision condition. Conditions which are not available (s 99(3)): Home detention Electronic monitoring Curfew Community service work.
Further conditions	May be imposed by the court at sentence: s 73B(1). Must not be: Inconsistent with standard or additional conditions (whether or not the additional condition is imposed): s 73B(2).	May be imposed by the court at sentence or subsequently on application: s 90(1). Must not be: Inconsistent with standard or additional conditions (whether or not the additional condition is imposed) Impermissible under s 89(3): s 90(2).	May be imposed by the court at sentence or subsequently on application: s 99A(1). Must not be: Inconsistent with standard or additional conditions (whether or not the additional condition is imposed) Impermissible under s 99(3): s 99A(2).

*: A CRO can also be imposed without proceeding to conviction: ss 9(1)(b), 10(1)(b).
**: Must not be imposed unless an assessment report states the offender is suitable: ss 73A(3), 89(4).

The statutory provisions concerning assessment reports and the matters to be considered when an offender is subject to multiple orders are found in Pt 2, Divs 4B and 4C and are discussed at [3-510] and [3-520] respectively.

[3-510] Requirements for assessment reports

Before making an ICO, CCO or CRO, a court may request an assessment report on the offender: s 17C(1)(a) Crimes (Sentencing Procedure) Act 1999. An assessment report can inform the conditions that may be imposed on the community-based order.

The relevant statutory requirements for assessment reports are contained in Pt 2, Div 4B (ss 17B–17D). Section 17B(2) provides that 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”. The report must be prepared by either a community corrections officer or a juvenile justice officer: s 17B(3).

An assessment report:

is generally required before making an order for an ICO: s 17D(1)
but is not required for an ICO if the court is satisfied there is sufficient information before it to justify making an ICO without a report: s 17D(1A)
must always be obtained before imposing home detention as a condition of an ICO or community service work as a condition of either an ICO or CCO: s 17D(2), (4)
must not be requested in relation to a home detention condition on an ICO unless the court has imposed a sentence of imprisonment on the offender for a specified term: s 17D(3).

A court is not otherwise obliged to request an assessment report for an offender: s 17C(1). However, although a court is not required to obtain an assessment report before imposing, for example, a CCO, it is important to obtain one because it informs consideration of not only the appropriate sentence options but the availability of particular conditions such as community service work: RC v R [2020] NSWCCA 76 at [223]–[228].

Times when the report may be requested

Except as provided by s 17D, a court may request an assessment report only:

after finding an offender guilty of an offence and before imposing a sentence: s 17C(1)(b)(i)
during sentencing proceedings, after a sentence of imprisonment has been imposed: s 17C(1)(b)(ii)
during proceedings to impose, vary, or revoke an additional or further condition on a CCO or a CRO: s 17C(1)(b)(iii)
during proceedings to correct a sentencing error in accordance with s 43: s 17C(1)(b)(iv)
during proceedings to re-sentence an offender following breach of a CCO or CRO: s 17C(1)(b)(v).

If a court refers an offender for assessment in relation to a sentence and a sentence of imprisonment has been imposed, the referral stays the execution of the sentence and the operation of s 48 (which deals with specifying dates associated with the sentence including its commencement) until the court decides whether or not to make an ICO: s 17C(2).

Subject to s 73A(3) (the requirement that a court must not impose home detention condition or community service work conditions on an ICO unless an assessment report states the offender is suitable) the court is not bound by the report: s 69(2).

The following table lists the different report types, a general indication of contents and minimum timeframes.

Report type	Contents	Minimum timeframe
Assessment report	Background, community service, supervision	6 weeks
Assessment report with home detention	Background, community service, supervision, home detention (only available after imprisonment is imposed)	6 weeks
Home detention assessment only	Home detention (when imprisonment is imposed and an ordinary assessment report has already been provided)	3 weeks
Specific purpose assessment	Specific issue identified by court (eg accommodation, rehabilitation availability)	3 weeks
Community service assessment only	Community service	3 weeks
Update sentencing assessment	Update to report previously provided	3 weeks
Court duty	Community service or a general indication of supervision suitability (only if a court duty officer is available)	Same day

The above Table is reproduced by permission from Community Corrections.

The assessment report will not obviate the need for appropriate medical reports which would usually be obtained by the defence.

Matters the report must address

Clause 12A(1) Crimes (Sentencing Procedure) Regulation 2017 sets out the following matters which a report must address:

(a): the offender’s risk of re-offending
(b): factors relating to the offender’s offending behaviour
(c): factors impacting on the offender’s ability to address his or her offending behaviour
(d): how the matters in (b) and (c) would be addressed by supervision and the availability of resources to do so
(e): any conditions that would facilitate the effective supervision of the offender in the community
(f): the offender’s suitability for community service work
(g): a summary of the offender’s response to any previous period of management in the community in respect of any relevant order, and
(h): any specific additional matters that the court wishes to be addressed.

Although cl 12A(1) is expressed in mandatory terms, cl 12A(3) provides that the report need not address a matter if it is not relevant to the offender’s circumstances or the court does not require it to be addressed.

Clause 12B(1) provides that reports concerning home detention conditions must address:

the offender’s suitability for home detention
any risks with imposing home detention (including risks to the offender or any other person, including children)
any strategies that could manage the risks, and
any other matters relevant to administering an ICO with a home detention condition.

Clause 12B(3) provides the matters that can be addressed in an assessment report related to home detention are not limited to those listed in cl 12B(1). However, if the offender does not have suitable accommodation, the assessment report addressing a home detention condition cannot be finalised until reasonable efforts have been made by Community Corrections, in consultation with the offender, to find suitable accommodation: cl 12B(2).

[3-520] Multiple orders

The statutory requirements where an offender is subject to multiple orders with apparently inconsistent conditions are found in Pt 2, Div 4C Crimes (Sentencing Procedure) Act 1999. Part 2, Division 4C establishes a hierarchy between ICOs, CCOs and CROs and their associated conditions and sets out the approach to be taken.

Hierarchy where multiple orders

Only one relevant order can be in force for an offender at the same time in respect of the same offence: s 17F(1). “Relevant orders” are defined in s 17E as ICOs, CCOs or CROs. Where an offender is subject to multiple orders at the same time, an ICO prevails over a CCO, and the CCO prevails over a CRO: s 17F(3). Where there is an inconsistency as to how any of the conditions of orders operate together, an ICO condition prevails over a CCO condition and a CCO condition prevails over a CRO condition: s 17F(4)(a)–(b). Despite this, a standard condition prevails over a non-standard condition: s 17F(4)(c).

Community service work conditions

If a court is considering imposing a community service work condition on an offender already subject to a condition of that type, the new order may not be made if the sum of: (a) the hours of community service work to be performed under the new order, and (b) the number of hours of work to be performed under an existing order, exceeds 750 hours (if one of the orders is an ICO) or 500 hours (if all the orders are CCOs): s 17G(1). In determining the sum referred to in s 17G(1), the hours of community service work to be performed under the new order are to be disregarded where they run concurrently with those to be performed under any existing order: s 17G(2). The hours of community service work to be performed under the new order are taken to run concurrently with those to be performed under any existing order: s 17G(3).

Curfew conditions

Section 17H addresses the circumstance where two or more curfew conditions apply under multiple orders. Subsections 17H(3)–(4) set out the maximum number of curfew hours to be observed and how any excess is to be managed. If all the relevant orders are CCOs:

the offender cannot be required to observe a curfew of more than 12 hours in a 24-hour period. Any excess is to be disregarded: s 17H(3)(a)
the offender is required in the 24-hour period to observe only the curfew imposed by the one curfew condition that specifies the most hours: s 17H(3)(b).

If at least one of the relevant orders is an ICO and at least one is a CCO:

the curfew conditions imposed on an ICO are not affected: s 17H(4)(a)
the offender cannot be required to observe a curfew in respect of more than the greater of:

1.

the hours required by curfew conditions imposed on the ICO(s) in the period of 24-hours or

2.

12 hours in the period of 24 hours.

Any excess is to be disregarded: s 17H(4)(b).
In determining the number of hours under two or more curfew conditions imposed on two or more CCOs, only the one curfew condition that specifies more hours than the others is to be considered: s 17H(4)(c).

If all the orders are ICOs, s 17H does not affect the curfew conditions as there is no specific limit on curfew hours: s 17H(2).