Community correction orders (CCOs)

[4-400] Introduction

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

They replaced what were previously known as community service orders and good behaviour bonds made on conviction. 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 2, the Attorney General (NSW), the Hon M Speakman SC, said the new CCO was a “more flexible order” and a non-custodial alternative to full-time imprisonment so “offenders can receive supervision to tackle their offending behaviour and be held accountable”.

Summary of CCO essentials

A CCO:

may be made without first obtaining an assessment report, unless the court intends to impose a community service work condition: ss 17C(1), 17D(4). See [4-420].
may be made following conviction, as an alternative to imprisonment: s 8(1). A conviction must be formally recorded. See [4-410].
must not be made by the Local Court in the offender’s absence: s 25(1). See [4-410].
cannot exceed three years: s 85(2). See [4-410].
can only be made with respect to a domestic violence offender if the order includes a supervision condition (s 4A(3)) and the court has considered the safety of any victim of the offence/s (s 4B(3)). See [4-410] and [63-505].
must include the two standard conditions and may be subject to additional and/or further conditions: ss 87, 88. See [4-420].

[4-410] The legislative requirements

The statutory scheme for CCOs is found in the following:

Crimes (Sentencing Procedure) Act 1999, s 8, Pt 7
Crimes (Sentencing Procedure) Regulation 2017, Pt 3, in particular, cl 14
Crimes (Administration of Sentences) Act 1999, Pt 4B
Crimes (Administration of Sentences) Regulation 2014, Pt 10.

Section 8 Crimes (Sentencing Procedure) Act empowers a court which has convicted an offender to make a CCO instead of imposing a sentence of imprisonment. A CCO is defined in s 3(1) to mean an order referred to in s 8. A conviction must be formally recorded before a CCO can be made, including when a child is being dealt with for a “serious children’s indictable offence”: R v AR [2022] NSWCCA 5 at [17], [27].

A court can only impose a CCO for a domestic violence offence if the order includes a supervision condition: s 4A. The safety of the victim of the domestic violence offence must be considered before a CCO is made for a domestic violence offender: s 4B(3).

The sentencing procedures associated with making a CCO are set out in Pt 7. An offender’s obligation with respect to any of the conditions imposed on the order are set out in Pt 10 Crimes (Administration of Sentences) Regulation.

The Local Court cannot impose a CCO in the absence of the offender: s 25(1)(d).

The powers of a court to deal with breaches of a CCO are set out in Pt 4B Crimes (Administration of Sentences) Act.

[4-420] Procedures for making a CCO

Assessment reports

See generally Requirements for assessment reports at [3-510].

While a court is not required to obtain an assessment report before imposing a CCO, it is important to obtain one as it informs consideration of, not only appropriate sentence options, but the availability of particular conditions such as community service work, a condition in respect of which a report must be obtained: RC v R [2020] NSWCCA 76 at [223]–[228]. Community service work cannot be a condition of a CCO unless, pursuant to s 89(4) Crimes (Sentencing Procedure) Act 1999:

1.: an assessment report has been obtained (ss 17C(1), 17D(4)), and
2.: the report states the offender is suitable to be the subject of such a condition.

The times at which the request for the report may be made are set out in s 17C(1)(b) and relevantly include:

after an offender has been found guilty of an offence and before imposing sentence
during proceedings to impose, vary or revoke an additional or further condition on a CCO
during proceedings to correct a sentencing error in accordance with s 43
during proceedings to re-sentence an offender after a court has revoked the offender’s community correction order.

Duration and commencement

A CCO cannot exceed 3 years (s 85(2)) and commences on the date it is made (s 86).

Only one “relevant order” can be in force for an offender at the same time for the same offence: s 17F(1). Relevant orders are defined as ICOs, CCOs or conditional release orders (CROs): s 17E. If an offender is subject to multiple orders at the same time, the conditions of an ICO take priority over a CCO. However, a CCO takes priority over a CRO: s 17F(3).

See further Multiple orders at [3-520] in Community-based orders generally.

Fixing appropriate conditions

Under s 87, a CCO is subject to the following conditions:

(a): the standard conditions in s 88
(b): any additional conditions imposed under s 89
(c): any further conditions imposed under s 90.

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

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

(a): a curfew condition (the specified curfew not exceeding 12 hours in any 24-hour period)
(b): a community service work condition, not exceeding 500 hours, requiring the offender to perform community service work (although this condition cannot be imposed without first having obtained an assessment report which states the offender is suitable for such a condition): s 89(4)
(c): a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment
(d): a condition requiring the offender to abstain from alcohol or drugs or both
(e): a non-association condition prohibiting association with particular persons
(f): a place restriction condition prohibiting the frequenting of or visits to a particular place or area
(g): a supervision condition.

The following additional conditions must not be imposed on a CCO, pursuant to s 89(3):

a home detention condition
an electronic monitoring condition, or
a curfew which exceeds 12 hours in any 24-hour period.

Clause 14(1) Crimes (Sentencing Procedure) Regulation 2017 provides that the following are the maximum number of hours for community service work when it is a condition of a CCO:

100 hours — for offences with a maximum penalty of up to 6 months imprisonment
200 hours — for offences with a maximum penalty of between 6 months and 12 months imprisonment
500 hours — for offences with a maximum penalty of more than 12 months imprisonment.

The minimum period a community service work condition is in force is associated with the specified hours. Clause 14(2) Crimes (Sentencing Procedure) Regulation prescribes the minimum periods as follows:

6 months — for up to 100 hours
12 months — for hours exceeding 100 hours but not exceeding 300 hours
18 months — for hours exceeding 300 hours but not exceeding 500 hours.

Further conditions may also be imposed, but these must not be inconsistent with the standard or additional conditions, whether or not such conditions have actually been imposed: s 90(1)–(2).

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

Explaining the order

The court must ensure reasonable steps are taken to explain to the offender their obligations under the order and the consequences that may flow from a failure to comply with those obligations: s 17I(1). Failing to comply with the requirements of s 17I(1) does not invalidate the order: s 17I(2).

See also the Local Court Bench Book in Community Correction Order (CCO) at [16-320].

The precise nature of the offender’s obligations under the order are identified in Pt 10 Crimes (Administration of Sentences) Regulation 2014: see, in particular, cll 186, 188, 189B–189H.

The court must also give the offender and Corrective Services notice of the relevant order if it is subject to a supervision or community service work condition: s 17J(1), 17J(3). Failing to do so does not invalidate the order: s 17J(4).

[4-430] Variation and revocation of CCO conditions

A court may vary or revoke any additional or further conditions imposed by it on a CCO if a community corrections officer, juvenile justice officer or the offender makes an application: ss 89(1)(b), 90(1)(b) Crimes (Sentencing Procedure) Act 1999.

The application does not have to be dealt with by the court as constituted at sentence: s 91(3).

The application must be in writing: cl 13(1) Crimes (Sentencing Procedure) Regulation 2017. The hearing must be listed between 14 days and 3 months (but not later than 3 months) from the time the application was filed: cl 13(2). A copy of the application must be given to the other party no later than 5 days before the hearing using any of the methods described in cl 13(5): cl 13(4).

The court may refuse to consider an offender’s application under ss 89 (for additional conditions) or 90 (for further conditions) if satisfied it is without merit: s 91(1).

If the community corrections officer (or juvenile justice officer) and the offender consent, an application can be dealt with in the parties’ absence, in open court or in the absence of the public: s 91(2).

The offender must be given notice of the outcome of the application: cl 13(7)(a). If the court imposes, adds or varies a condition, it must take reasonable steps to provide the offender with an explanation of their obligations under the condition and the consequences that may follow from a failure to comply: cl 13(8). However, failing to comply with cl 13(8) does not invalidate the order: cl 13(9).

Notice must be given to Community Corrections if the court, pursuant to cl 13(7)(b):

adds, varies or revokes a condition of a CCO that is subject to a supervision or community service work condition, or
imposes a supervision condition on a CCO, or
imposes a community service work condition on a CCO.