Non-association and place restriction orders
The Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 was introduced, along with a series of other Acts, with the intention of reducing gang-related crime: see Second Reading Speech. The Act, which chiefly amended the Crimes (Sentencing Procedure) Act 1999, provided that, on sentencing, a court may, in addition to any other penalty or order, impose a “place restriction order” and/or a “non-association order”.
The Act also amended the Bail Act 1978 (since repealed and replaced by the Bail Act 2013), Crimes (Administration of Sentences) Act 1999 and the Children (Detention Centres) Act 1987 to provide for non-association and/or place restriction orders as conditions of bail, parole and leave.
Similar types of restrictions may be imposed on an offender at sentence as a condition of a community-based order such as an intensive correction order, a community correction order or a conditional release order (see [6-530]).
Note: Unless otherwise specified, references to sections in this chapter are to the Crimes (Sentencing Procedure) Act 1999.
[6-500] Availability of orders
A non-association and/or place restriction order may be imposed where the court “is satisfied that it is reasonably necessary to do so to ensure that the offender does not commit any further offences”: s 17A(2). There are no specific limits on the circumstances in which such orders can be made other than the following:
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orders may only be imposed in respect of an offence with a maximum penalty of six months imprisonment or more, or for an aggregate sentence of imprisonment in respect of two or more offences any one of which is an offence to which s 17A applies: s 17A(1);
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orders may not be made where the only other penalty imposed is under s 10 (dismissal of charge with or without conditional release order (unless as a condition of such an order) or intervention program), or s 11 (deferral of sentencing for rehabilitation and other purposes): s 17A(4); and
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orders are made in addition to (not instead of) any other penalty imposed, and do not limit the availability of any other orders or restrictions that may be imposed under any other Act: s 17A(4), (6).
Further, the Local Court must not impose a non-association and/or place restriction order if the offender is absent: s 25(1)(f).
[6-510] Types of orders
A non-association order (s 17A(2)(a)) prohibits the offender from associating with a specified person for a specified term, and may be in one of two forms:
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a limited non-association order, which prohibits an offender being in the company of a specified person, except at the times and in circumstances specified by the court: s 17A(3)(a) and
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an unlimited non-association order, which prohibits an offender being in the company of a specified person and communicating with them by any means: s 17A(3)(b).
A place restriction order (s 17A(2)(b)) prohibits the offender from frequenting or visiting specific places or districts for a specified term, and may be in one of two forms:
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a limited place restriction order, which prohibits an offender from frequenting or visiting a place or district, except at the times or in circumstances specified by the court: s 17A(3A)(a), and
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an unlimited place restriction order, which prohibits an offender from frequenting or visiting a specified place or district: s 17A(3A)(b).
Commencement, duration and suspension of orders
The term of the non-association/place restriction order is not limited by any term of imprisonment imposed, but may not exceed 12 months: s 17A(5).
An order commences on the date on which it is made or, if it is stayed because of an appeal, but confirmed on appeal, on the date on which it is confirmed: s 100C.
An order is suspended while the offender is in lawful custody or while a juvenile offender is on an approved supervised leave of absence from a detention centre under s 24 Children (Detention Centres) Act 1987: s 100D(1). However, a suspension in these circumstances does not vary the end date of the original order: s 100D(2).
Constraints on content of orders under s 17A
A place restriction order must not prevent the offender from accessing certain locations, including their place of residence, regular employment, education or worship, unless the court considers that the exceptional circumstances in s 100(2A) exist and the court records its reasons: s 100A(2), (2B).
A non-association order must not prevent the offender from contacting “close family” members (as defined in s 100A(3)), unless the court considers that the exceptional circumstances in s 100A(1A) exist and the court records its reasons: s 100A(1), (2B).
Variation and revocation
On sentencing an offender for a new offence, the court may vary or revoke a pre-existing non-association/place restriction order, whether or not the order had been imposed by that same court: s 100F(2).
An offender may also apply to the Local Court for leave to vary/revoke an order. If leave is granted to hear the application, the court must notify the Commissioner of Police who is entitled to be heard on the application: s 100G.
[6-520] Contravention of orders
Contravention of a non-association/place restriction order, without reasonable excuse, is an offence punishable by 6 months imprisonment and/or a fine of 10 penalty units: s 100E(1).
A reasonable excuse includes if the offender:
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unintentionally associates with a person specified in a non-association order, provided the offender terminates such contact immediately: s 100E(2)(b), or
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contacts a person or attends a location in compliance with a court’s order where such contact/attendance would otherwise be prohibited: s 100E(2)(a), (3).
[6-530] Community-based order conditions
Non-association and/or place restrictions may also be imposed on sentence as additional conditions of a community-based order (intensive correction order (ICO), community correction order (CCO) or conditional release order (CRO)): ss 73A(2)(g), (h), 89(2)(e), (f), 99(2)(c), (d).
An offender subject to a non-association condition on a community-based order is obliged “not to be in the company of any person specified in the non-association condition or communicate with that person by any means, except as specified in the condition”: cl 189F Crimes (Administration of Sentences) Regulation 2014.
An offender subject to a place restriction condition is obliged “not to frequent or visit a specified place or area specified in the place restriction condition, except as specified in the condition”: cl 189G Crimes (Administration of Sentences) Regulation.
When imposed as a condition of a community-based order, such restrictions are not subject to the 12-month limitation in s 17A(5), and the condition may be in force for the period of the order or a limited period ordered by the court: ss 73A(4), 89(5), 99(4).
Non-association and place restriction conditions under community-based orders are also not subject to the requirements of Pt 8A.
For a general discussion of: