Conditional release orders (CROs)

[4-700] Introduction

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].

Summary of significant CRO provisions

A CRO:

may be made without first obtaining an assessment report: s 17C(1). See [4-720].
must not be made by the Local Court in the offender’s absence: s 25(1). See [4-720].
may be imposed with or without conviction: s 9(1). See [4-710].
if imposed without conviction is made under s 10(1)(b). See [5-010].
cannot be imposed together with a fine for the same offence: s 9(3). See [4-720].
cannot exceed 2 years: s 95(2). See [4-720].
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 [4-710] and [63-505].
must include the two standard conditions and may be supplemented by additional and further conditions: s 97. See [3-500].

[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

Last reviewed: August 2023

Assessment reports

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:

(a): the person’s character, antecedents, age, health and mental condition
(b): whether the offence is of a trivial nature
(c): the extenuating circumstances in which the offence was committed
(d): 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 [2012] NSWCCA 51 at [37]–[39]. 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 [2016] 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 [59], [85]; see also Hoffenberg v District Court of NSW [2010] NSWCA 142 at [20]. Similarly, in R v Stephenson [2010] 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 [67].

Sections 9(2) and 10(3) require a court to have regard to the same factors when determining whether to impose a conditional release order under s 9(1) or not to proceed to conviction under s 10(1). Therefore, 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 (CCO) 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:

(a): the standard conditions under s 98
(b): any additional conditions, as to which see s 99
(c): 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): a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment
(b): a condition requiring the offender to abstain from alcohol or drugs or both
(c): a non-association condition prohibiting association with particular persons
(d): a place restriction condition prohibiting the frequenting of, or visits to, a particular place or area
(e): 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):

home detention
electronic monitoring
curfew
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.