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. 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 on the offender a “place restriction order” and/or a “non-association order”. By targeting the “elements that are central to gang activity” — group association and territory — the orders are intended to limit the offender’s opportunity to reoffend by reducing his or her exposure to high risk situations.
The Act also amended the Bail Act 1978 (since repealed and replaced by the Bail Act 2013), Crimes (Administration of Sentences) Act 1999 and the Children (Detention Centres) Act 1987 to provide for non-association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. These amendments commenced on 13 May 2002.
The amendments to the Crimes (Sentencing Procedure) Act 1999 discussed below, commenced on 19 July 2002.
Since 24 September 2018, 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 (ICO) (see [3-600]ff), a community correction order (CCO) (see [4-400]ff) or a conditional release order (CRO) (see [4-700]ff).
[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) Crimes (Sentencing Procedure) Act 1999. While these provisions were introduced ostensibly to “target gangs [and] break down criminal associations”, there are no specific limits on the circumstances in which a non-association and/or place restriction order can be made other than the following:
non-association and/or place restriction orders may only be imposed on sentencing for any offence that carries a maximum penalty of six months’ imprisonment or greater or to 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)
an order may not be made where the only other penalty imposed on an offender is under s 10 Crimes (Sentencing Procedure) Act 1999 (dismissal of charges and discharge of an offender on a CRO (but note that a non-association or place restriction may be a condition of such an order)) or s 11 (deferral of sentencing for rehabilitation and other purposes): s 17A(4), and
orders are made in addition to (not instead of) any other sanction imposed, and do not limit the availability of any other orders or restrictions that may be imposed under any other Act: s 17A(4).
Non-association and/or place restriction orders may also be made a condition attaching to bail or parole or unescorted leave from custody, and since 24 September 2018, as a condition of an ICO, CCO and CRO.
The Local Court is not empowered to impose a non-association order and/or place a restriction order if the offender being dealt with is absent: s 25(1)(f) Crimes (Sentencing Procedure) Act 1999.
[6-520] Types of orders
A non-association order prohibits the subject from associating with a specified person for a specified term, and may be in one of two forms:
a limited non-association order, which prohibits personal contact: s 17A(3)(a) and
an unlimited non-association order, which prohibits personal contact and communication by any means, including post, telephone, facsimile and email: s 17A(3)(b).
A place restriction order prohibits the subject from entering specific places or districts for a specified term: s 17A(2)(b).
Constraints on content of orders under s 17A
A place restriction order may not be framed so as to prevent the subject from accessing his or her place of residence, place of regular employment, education or worship: s 100A(2).
A non-association order may not be framed so as to prevent the subject from contacting “close family” members including spouses, parents, grandparents, children and grandchildren, brothers and sisters and guardians or carers: s 100A(1).
The term of the non-association/place restriction order is not limited by the length of sentence imposed, but may not exceed 12 months: s 17A(5).
Suspension while subject in custody
A non-association/place restriction order is suspended while the subject is in lawful custody, or in the case of juveniles, while the subject is on an approved supervised leave of absence from a detention centre as provided for by s 24 Children (Detention Centres) Act 1987: s 100D(1).
A suspension in these circumstances does not postpone the concluding date of the term of the original order: s 100D(2).
Contravention, breach and penalty
The subject may not, without reasonable excuse, contravene a non-association/place restriction order. Breach of an order is punishable by six months imprisonment, a fine of 10 penalty units, or both: s 100E(1).
It is not a breach if the subject unintentionally crosses paths with a prohibited person, provided that the subject terminates such contact immediately: s 100E(2).
It is not a breach of an order to contact a person or attend a place in compliance with an order of the court where otherwise such contact/attendance would be prohibited: s 100E(3).
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 as it sees fit, whether or not the order had been imposed by that same court: s 100F(2).
The subject of an order may also apply to the Local Court for variation/revocation of the order. If the Local Court grants leave to entertain the application for variation/revocation, it must notify the Commissioner of Police who is then entitled to be heard in any proceedings on the subject’s application: s 100G.
Where an appeal against an order is unsuccessful, the period of the original order will run from the date of the appeal. This provision is designed to prevent the effect of the orders imposed being circumvented through suspension, pending hearing of the appeal: s 100C(b).
Non-association and place restrictions as conditions of community-based orders
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), 89(2), 99(2) Crimes (Sentencing Procedure) Act 1999.
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) Crimes (Sentencing Procedure) Act that applies when a separate order is made under s 17A. Rather, when part of a community-based order, 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 not subject to the requirements of Pt 8A Crimes (Sentencing Procedure) Act.