Conditional release orders (CROs)
Conditional release orders (CROs) were introduced as a sentencing option on 24 September 2018 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. They replace the good behaviour bonds which could be imposed with or without conviction under either ss 9 or 10(1)(b) Crimes (Sentencing Procedure) Act 1999 as in force before that date.
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 CROs were: “a community-based sentence for the lowest level of offending”.
This chapter deals with CROs made on conviction. For CROs made without proceeding to conviction under s 10(1)(b), see also Section 10(1)(b) conditional release orders operate with s 9 at [5-010].
[4-710] The legislative requirements
The entire statutory scheme for the 2017 sentencing reforms is contained in the relevant provisions of the following:
Crimes (Sentencing Procedure) Act 1999, s 9, Pt 8
Crimes (Sentencing Procedure) Regulation 2017, Pt 3
Crimes (Administration of Sentences) Act 1999, Pt 4C
Crimes (Administration of Sentences) Regulation 2014, Pt 10.
Section 9 Crimes (Sentencing Procedure) Act 1999 empowers a court to make a conditional release order (CRO) either with or without proceeding to a conviction. A CRO is defined in s 3(1) to mean an order referred to in s 9.
A court can only impose a CRO for a domestic violence offence if the order includes a supervision condition: s 4A. A court must consider the safety of the victim of the domestic violence offence before making a CRO for a domestic violence offender: s 4B(3).
The sentence procedures associated with making a CRO are set out in Pt 8. An offender’s obligations with respect to the order are set out in Pt 10 Crimes (Administration of Sentences) Regulation.
The Local Court cannot impose a CRO in the offender’s absence: s 25(1)(e) Crimes (Sentencing Procedure) Act.
The powers of a court with respect to the breach of a CRO are in Pt 4C Crimes (Administration of Sentences) Act.
[4-720] Procedures for making a CRO
See Requirements for assessment reports at [3-510].
Unlike other community-based sentence options such as an ICO, a court is not required to obtain an assessment report before imposing a CRO: s 17C(1)(a) Crimes (Sentencing Procedure) Act 1999. The times at which the request may be made are set out in s 17C(1)(b) and relevantly include:
after an offender has been found guilty and before imposing sentence: s 17C(1)(b)(i)
during proceedings to impose, vary or revoke an additional or further condition of a CRO made in respect of the offender: s 17C(1)(b)(iii)
during proceedings to correct a sentencing error: s 17C(1)(b)(iv)
during proceedings to re-sentence an offender after a court has revoked the offender’s CRO: s 17C(1)(b)(v).
Deciding to convict the offender and make a CRO
Section 9(2) requires a court deciding whether to convict an offender and make a CRO to have regard to the following:
the person’s character, antecedents, age, health and mental condition
whether the offence is of a trivial nature
the extenuating circumstances in which the offence was committed
any other matter the court thinks proper to consider.
As a “general proposition” the fact a conviction is recorded is a matter of special significance: R v Mauger  NSWCCA 51 at –. Courts recognise that recording a conviction involves a more serious sentencing option and reflects the gravity of an offence. For example, the court in TC v R  NSWCCA 3 held that despite the impact of a conviction for the offences on the applicant’s employment prospects, the seriousness of the conduct and circumstances of the offending meant the sentencing judge properly exercised his discretion to record a conviction: TC v R at , ; see also Hoffenberg v District Court of NSW  NSWCA 142 at . Similarly, in R v Stephenson  NSWSC 779, Fullerton J held the principle of general deterrence would be undermined if a conviction was not recorded for an insider trading offence: R v Stephenson at .
In R v Mauger, the court was considering a Crown appeal against sentence where an offender was not convicted but ordered to enter a s 10 bond (as then in force) for drug supply offences. The court discussed the rationale for orders that did not involve a conviction describing them as providing “offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws”: R v Mauger at . When an offence is objectively serious and where general deterrence and denunciation are important factors in sentence for that offence the scope for the operation of a non-conviction based order decreases: R v Mauger at .
Before 24 September 2018, a sentencing court was only required to consider the factors identified in s 9(2) when determining whether to make one of the orders available under s 10(1). Those factors are also contained in s 10(3). The obligation under that provision continues. The language of s 9(2) which requires a court “to have regard to” the identified factor is identical to that used in s 10(3). The case law concerning the operation of s 10(3) may therefore guide the approach a sentencing court should take to this provision: see Application of factors in s 10(3) at [5-030].
Duration and commencement
The maximum term of a CRO is 2 years: s 95(2).
A CRO commences on the day it is made: s 96.
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 CROs: s 17E. If an offender is subject to multiple orders at the same time, conditions of an intensive correction order (ICO) and community correction order (CCOs) take priority over a CRO: s 17F(4).
See further Multiple orders at [3-520].
Fixing appropriate conditions
Section 97 provides that a CRO is subject to the following conditions:
the standard conditions under s 98
any additional conditions, as to which see s 99
any further conditions, as to which see s 99A.
The court may limit the period during which an additional or further condition on a CRO is in force: ss 99(4), 99A(3).
A CRO must include the standard conditions which 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(1), 98(2).
Section 99(1) provides that a court may impose additional conditions on a CRO which are identified in s 99(2) and include:
a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment
a condition requiring the offender to abstain from alcohol or drugs or both
a non-association condition prohibiting association with particular persons
a place restriction condition prohibiting the frequenting of, or visits to, a particular place or area
a supervision condition.
A supervision condition may be made in relation to an offender who was under 18 years when the condition was imposed. They are supervised by a juvenile justice officer: s 99(2)(e)(ii).
The following cannot be a condition of a CRO pursuant to s 99(3):
community service work order.
Further conditions may be imposed at the time of sentence but any further conditions cannot be inconsistent with the standard conditions of a CRO or any of the additional conditions (whether or not imposed on the CRO): s 99A.
The court may limit the period during which either additional or further conditions on a CRO are in force: ss 99(4), 99A(3).
Explaining the order
The sentencing court must ensure reasonable steps are taken to explain to the offender their obligations under the order and the consequences that may follow if they fail 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).
The offender’s particular obligations under the order are identified in Pt 10 Crimes (Administration of Sentences) Regulation 2014: see, in particular, clls 186, 188, 189D–189H.
[4-730] Variation and revocation of CRO conditions
A court may vary or revoke any additional or further conditions imposed by it on a CRO if a community corrections officer, juvenile justice officer or the offender makes an application: ss 99(1), 99A(1) Crimes (Sentencing Procedure) Act 1999.
The application does not have to be dealt with by the court as constituted at sentence: s 100(3).
The application must be in writing: cl 13(1) Crimes (Sentencing Procedure) Regulation 2017. The date set for hearing must not be earlier than 14 days after, and not later than 3 months after, 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).
If the offender makes the application under ss 99 (for additional conditions) or 99A (for further conditions) the court may refuse to consider it if satisfied it is without merit: s 100(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 100(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:
adds, varies or revokes a condition of a CRO that is subject to a supervision or community service work condition, or
imposes a supervision condition on a CRO: cl 13(7)(b).
[4-740] Transitional provisions for orders in force before 24 September 2018
Schedule 2, Pt 29, cl 75 Crimes (Sentencing Procedure) Act sets out the relevant transitional provisions.
A s 10(1)(b) good behaviour bond imposed before 24 September 2018 is taken to be a CRO made under s 9 without proceeding to conviction and subject to the standard conditions of a CRO, any conditions imposed on the original bond and any other conditions prescribed by the regulations. The order expires on the date set by the sentencing court which imposed the original bond.