Sentencing Trends & Issues No 40 — Common offences in the NSW Local Court: 2010

Introduction

The purpose of this Sentencing Trends & Issues (the Trends) is to report the sentences imposed in the Local Court of NSW (the court) in 2010 and to compare these with the findings reported in previous studies undertaken by the Judicial Commission of NSW for offences dealt with in 2002 and 2007.¹ Legislative changes which may have influenced sentencing patterns since the earlier studies are discussed. The Trends presents some general findings about offender profiles, the frequency of statutory, regulatory and common law offences before the court, and their classification under the Australian and New Zealand Standard Offence Classification (ANZSOC).² It also reports the sentences imposed for the 20 most common proven statutory offences dealt with by the court in 2010. The Trends concludes with a brief discussion of the sentencing patterns for the 10 most common proven regulatory offences dealt with in the court in 2010.

Data source and methodology

Sentencing data for the court are provided by the Bureau of Crime Statistics and Research (BOCSAR) and then processed to generate the statistics which appear on the Judicial Information Research System (JIRS).

The Trends only analyses sentencing data for first instance proven offences in finalised court appearances. The data have not been “corrected” to take into account the outcomes of subsequent conviction or sentence appeals to the District Court.

The data exclude sentences imposed following breach proceedings,³ but include penalties imposed for contested penalty infringement notices.

Where a person has been sentenced in more than one finalised court appearance during the data period, the data include the sentence imposed in each finalised court appearance.

Where an offender has been sentenced for multiple offences in a single finalised court appearance, the offence which attracts the highest penalty in terms of type and quantum of sentence is selected as the principal offence.⁴Unless otherwise indicated below, the principal offence is used in the analyses of offences.

Some offences attract a higher maximum penalty where an offender is sentenced for a second or subsequent offence (such as driving offences),⁵ or where the value of the property exceeds a certain amount (property offences). The Trends does not consider the effect of the presence or absence of a prior record for specific offences, although some aspects of the analyses consider property values.

Terminology

The term “median” refers to the sentence which lies in the middle of a range of values. The term “mean” refers to the average value. The term “mode” is used to indicate the most frequently occurring value or values. The percentages in parentheses following the mode indicate the number of offenders who were given that value for the penalty.

In respect of fines, the percentage of fines which fall within the middle 50% range of values is shown. The lower limit of this range is set at the first quartile (or 25th percentile) and the upper limit is set at the third quartile (or 75th percentile). This range shows the spread of values near the centre.

In respect of custodial sentences, the “full term” refers to the non-parole period of the sentence and the balance of the term of sentence. The “NPP/fixed term” refers to the minimum period of time to be served in custody.

The abbreviation “pu” refers to penalty units,⁶ and “pp” refers to percentage points.

General findings

A total of 127,947 offenders⁷ were sentenced in the court in 2010 for 219,257 offences, whether or not the offence was a principal offence. These offences include statutory (81.0%), regulatory (19.0%) and common law (0.04%) offences. The overwhelming majority of offences were committed contrary to NSW law (97.8%). Only 2.2% were committed contrary to Commonwealth legislation.

Appendix A shows a breakdown of the 219,257 offences by ANZSOC division and subdivision, and for the most common subdivisions, by ANZSOC group.⁸ By far the most common offences fell into ANZSOC division “traffic and vehicle regulatory offences”, accounting for 43.6% (95,611) of all offences. In particular, “exceed the prescribed content of alcohol or other substance limit” was the most common ANZSOC group, accounting for 10.9% (23,982) of all offences. The next most common offences fell into ANZSOC divisions “acts intended to cause injury” (23,923 or 10.9%), “offences against justice procedures, government security and government operations” (18,709 or 8.5%), “theft and related offences” (14,518 or 6.6%), “illicit drug offences” (13,337 or 6.1%), and “fraud, deception and related offences” (13,226 or 6.0%).

Appendix A also shows a breakdown of the 127,947 principal offences by ANZSOC division. The most common principal offences fell into ANZSOC division, “traffic and vehicle regulatory offences”, accounting for 51.8% (66,217) of all principal offences. In particular, “exceed the prescribed content of alcohol or other substance limit” (21,733 or 17.0%) and “drive while licence disqualified or suspended” (11,033 or 8.6%) were the most common ANZSOC groups. The next most common principal offences fell into ANZSOC division “acts intended to cause injury” (16,330 or 12.8%), with the subdivision “assault” accounting for 10.9% (14,005) of all principal offences.

Offender characteristics⁹

Gender: Offenders sentenced in the court were predominantly male (79.7%), while 20.3% were female.¹⁰

Age: The median age of offenders at the time of offence was 32 years and the mean age was 34.04 years.¹¹

Indigenous status: Aboriginal and Torres Strait Islander persons accounted for 10.5% of offenders.¹²

Court location: More than half of the cases were finalised in Sydney (58.9%), 31.0% were finalised in courts located in rural NSW and 10.1% were finalised in courts located in Newcastle or Wollongong.

Number of offences: Just over two-thirds of offenders were sentenced for one offence only (67.5%), while almost one-third were sentenced for multiple offences (32.5%): 17.7% were sentenced for two offences; 7.4% were sentenced for three offences; 3.3% were sentenced for four offences; and 4.1% were sentenced for five or more offences.¹³

Plea: Approximately three-quarters of offenders (75.5%) pleaded guilty.¹⁴

Prior record: Just under half of offenders had no prior record of offending (44.5%), while just over half had a prior record (55.5%): 22.6% had prior offences of a different type and 32.9% had prior offences of the same type.¹⁵ Overall, 12.2% of offenders had previously served a term of full-time imprisonment: 5.1% for an offence of the same type and 7.1% for an offence of a different type.¹⁶

Bail status at sentencing: Bail was not an issue in the majority of cases (76.4%).¹⁷ For the remaining cases, the offender was either on bail (17.4%) or in custody (6.2%)¹⁸ at the time of sentencing.¹⁹

Jurisdiction of the court

The court has jurisdiction to hear and determine two types of offences — summary offences and indictable offences which may be dealt with summarily under Ch 5 of the Criminal Procedure Act 1986.²⁰ Importantly, ss 267 and 268 of that Act, which set out the maximum penalties that can be imposed by the court for particular indictable offences being dealt with this way, “prescribe the jurisdictional limit of the Local Court and not the maximum penalty for any offence triable within that jurisdiction”.²¹

Despite the jurisdictional limit of the court, the maximum penalty for an offence remains relevant to the sentencing exercise and the jurisdictional maximum should not be regarded as some form of maximum penalty reserved for a worst case.²² In R v Doan,²³ the Court of Criminal Appeal held that a jurisdictional maximum is:

“… NOT A MAXIMUM PENALTY FOR ANY OFFENCE TRIABLE WITHIN THAT JURISDICTION. IN OTHER WORDS, WHERE THE MAXIMUM APPLICABLE PENALTY IS LOWER BECAUSE THE CHARGE HAS BEEN PROSECUTED WITHIN THE LIMITED SUMMARY JURISDICTION OF THE LOCAL COURT, THAT COURT SHOULD IMPOSE A PENALTY REFLECTING THE OBJECTIVE SERIOUSNESS OF THE OFFENCE, TEMPERED IF APPROPRIATE BY SUBJECTIVE CIRCUMSTANCES, TAKING CARE ONLY NOT TO EXCEED THE MAXIMUM JURISDICTIONAL LIMIT”.²⁴

Of the 20 most common statutory offences, the offences of “common assault”, “assault occasioning actual bodily harm”, “destroy or damage property”, “larceny”, “stalk or intimidate with intent to cause fear of physical or mental harm” and “assault with intent on certain officers” are subject to this principle.

Section 58 of the Crimes (Sentencing Procedure) Act 1999 limits consecutive sentences that can be imposed by the court to a maximum total of 5 years, subject to certain exceptions set out in s 58(3).

Penalties for statutory offences

The Crimes (Sentencing Procedure) Act (the Act) sets out the penalties available to the court. Unless otherwise specified, references to sections below are to sections of the Act. The Act divides penalties into custodial sentences and non-custodial sentences. Custodial sentences include full-time imprisonment (ss 5, 44–46), periodic detention (PD) (s 6, available until 30 September 2010),²⁵ intensive correction orders (ICOs) (s 7, available from 1 October 2010)²⁶ and home detention (HD) (s 6, renumbered from s 7 on 1 October 2010).²⁷ Non-custodial penalties include suspended sentences (s 12), community service orders (CSOs) (s 8), good behaviour bonds (s 9), dismissals of charges and conditional discharges (s 10), and convictions with no other penalty (s 10A convictions). The term “imprisonment” includes custodial sentences as well as suspended sentences.

In the Trends, recognizances with or without conviction under either ss 19B or 20 of the Crimes Act 1914 (Cth) are included with the figures for the comparable State provisions.

Figure 1 shows the distribution of penalty types for 103,584 offenders sentenced for statutory offences in the court in 2010 (principal offences only).²⁸ The x-axis shows the penalty types in order of severity (from least severe to most severe) and the y-axis shows the frequency with which these penalties were imposed by the court.

Figure 1: Distribution of penalty types for offenders sentenced for statutory offences in the NSW Local Court in 2010 (principal offences only)

The following is a summary of these findings, setting out the penalties imposed (in order of frequency) for all statutory offences (principal offences only). Regulatory offences have been excluded to allow comparisons with findings from 2007 and 2002. Note that Appendix B shows the distribution of penalty types for all principal offences (broken down by statutory and regulatory offences).

Fines were the most common penalty ordered by the court, accounting for 43.7% of all penalties imposed.²⁹ The median fine was $500, an increase from 2007 and 2002 (both $400). The mode was $500 (imposed on 15.4% of offenders who were fined). The middle 50% range of fines was $300 to $700, accounting for 54.1% of fines. The proportion of penalties represented by fines in 2010 was less than in 2007 (48.2%) and 2002 (50.2%). However, fines were still by far the most common penalty imposed by the court.

Good behaviour bonds under s 9 (s 9 bonds) were imposed on 19.8% of offenders.³⁰ In 2007 and 2002, bonds accounted for 18.0% and 14.5% respectively of all penalties imposed, indicating a gradual increase in the use of this penalty option by the court. The median duration of bonds was 12 months (unchanged from the previous studies), and the mode was also 12 months (imposed on 46.4% of offenders given bonds). The vast majority of bonds (86.0%) were in the range of 12 to 24 months. The median duration of bonds for Commonwealth offences (18 months) was longer than for NSW offences (12 months), although shorter than those imposed in 2007 (24 months). Overall, 68.2% of bonds were unsupervised, while supervised bonds were longer than unsupervised bonds (18 months compared with 12 months).

Dismissals and discharges without conviction³¹ under s 10 were imposed on 18.6% of offenders.³² Of this figure, 6.1% had their charge dismissed unconditionally (s 10 dismissals),³³ and 12.5% were conditionally discharged on a good behaviour bond (s 10 bonds).³⁴ The use of s 10 bonds was greater than in 2007 (10.5%) and 2002 (10.4%). Unconditional dismissals accounted for 6.2% of sentences in 2007 and 7.4% in 2002. As was the case in the previous studies, in those cases in which a bond was imposed, the median duration and mode of the bond was 12 months (imposed on 51.7% of these offenders).

Full-time imprisonment was imposed on 6.9% of offenders.³⁵ This figure was very similar to that observed in 2007 (6.5%) and the same as that observed in 2002 (6.9%). The median full term was 9 months, compared with 8 months in 2007 and 6 months in 2002. The median NPP/fixed term was 6 months. Fixed terms of full-time imprisonment were imposed in 44.3% of cases.³⁶ Where a non-parole period was set, the median full term was 12 months and the median non-parole period was 6 months (both unchanged since 2007). Special circumstances³⁷ were found in over three-quarters of the cases where a non-parole period was set (76.4%). The most common ratios (between the non-parole period and the full term) were 1:2 and 2:3 (imposed on 17.1% and 16.5% of these offenders respectively). The Trends does not analyse consecutive sentences or the effect that the limitation in s 58 may have on patterns of sentencing.

Suspended sentences under s 12 were imposed on 4.8% of offenders.³⁸ There has been a gradual increase in the use of this penalty option by the court. In 2007 and 2002, suspended sentences accounted for 4.4% and 4.0% respectively of all penalties imposed. The median term was 9 months (unchanged from the previous studies), and the mode was 12 months (imposed on 26.0% of offenders given suspended sentences). The median term of suspended sentences for Commonwealth offences (13 months) was longer than for NSW offences (9 months). Supervision was imposed in 53.6% of cases. There was no difference in the duration of suspended sentences according to whether supervision was imposed or not.

Community service orders (CSOs) were imposed on 3.9% of offenders.³⁹ There has been a slight decrease in the use of this penalty from 4.2% in 2007 and 4.5% in 2002. The median term of CSOs was 120 hours (up from 100 hours in the previous studies), and the mode was 100 hours (27.6%). CSOs for 150 hours (16.9%) and 200 hours (16.0%) were also common.

Convictions recorded with no other penalty (s 10A convictions) were imposed on 1.7% of offenders. The use of this penalty has increased from 0.8% in 2007. However, the penalty option only became available from 29 November 2006.⁴⁰

Periodic detention orders (PD) were imposed on 0.4% of offenders.⁴¹ This penalty option was only available to the courts for nine months of the year (until 30 September 2010). The median full term was 9 months (compared with 8 months in 2007 and 6 months in 2002) and the median NPP/fixed term was 6 months. Even allowing for its non-availability as a penalty option for the last quarter of 2010, its use had been declining (0.9% in 2007 and 1.2% in 2002).⁴²

Home detention orders (HD) were imposed on 0.2% of offenders.⁴³ The frequency of use of this penalty option was very similar to 2007 (0.2%) and 2002 (0.3%). The median full term was 9 months (unchanged from 2007 but up from 6 months in 2002). The median NPP/fixed term was 6 months.

Intensive correction orders (ICOs) were imposed on only 0.1% of offenders. This new penalty option was only available for three months of the study period (from 1 October 2010).⁴⁴ The median term of ICOs was 10 months and the mode was 12 months (26.3%).

Rising of the court (ROC) was imposed on 0.1% of offenders, which was unchanged from 2007, but down from 2002 (0.5%).

Twenty most common statutory offences

Table 1 shows the 20 most common statutory offences (principal offences only) dealt with by the court in 2010. These accounted for 73.1% of the total number of statutory offences sentenced in that year (75,707 offenders). By comparison, in 2007 the 20 most common statutory offences accounted for 74.7% of the total number of statutory offences sentenced by the court (82,095 offenders).

Table 1: Most common statutory offences (principal offence only) sentenced in the NSW Local Court in 2010

Distribution of the most common offences

The distribution of the 20 most common statutory offences resembled those for 2007 and 2002. Seventeen of the offences appearing in the 2010 list appeared in the 2007 list, and 16 also appeared in the 2002 list. However, the following three new offences appeared in the list for 2010 (with their 2010 rankings in parentheses):

• (13) “Stalk or intimidate with intent to cause fear of physical or mental harm”: Crimes (Domestic and Personal Violence) Act 2007, s 13(1)⁴⁵
• (18) “Drive whilst licence suspended under s 66 of the Fines Act 1996”: Road Transport (Driver Licensing) Act 1998, s 25A(3A)(a)
• (20) “Special-range PCA”:⁴⁶ Road Transport (Safety and Traffic Management) Act 1999, s 9(1).

The three offences appearing in the 2007 list which did not appear in the 2010 list were (with their 2007 rankings in parentheses):

• (14) “Offensive conduct”: Summary Offences Act 1988, s 4
• (18) “Offensive language”: Summary Offences Act 1988, s 4A
• (20) “Drive recklessly/furiously or dangerous speed/manner”: Road Transport (Safety and Traffic Management) Act 1999, s 42(2).

In all three years (2002, 2007 and 2010), “mid-range PCA” and “common assault” held the same rank (first and second respectively) in the 20 most common statutory offences list. Four of the five most common statutory offences in 2010 were in the top five for 2007 (three for 2002). Six of the offences appearing in the 2010 list held the same position as they held in 2007 (two for 2002).

Offences relating to the use and operation of a motor vehicle continued to dominate the list as was the case in 2002 and 2007. The offence under s 25A(3A)(a) of “drive whilst licence suspended under s 66 of the Fines Act 1996” did not appear in the 2007 study as it was inserted into s 25A of the Road Transport (Driver Licensing) Act 1998 at the end of 2008, and commenced on 9 March 2009.⁴⁷ Prior to the introduction of this offence, the offence of “drive whilst suspended” under s 25A(2) included licence suspension for both unsafe driving and fine default. The new offence was created to distinguish between the two groups of offenders and allow courts to impose sanctions reflecting the lower threat to the community posed by those who lost their licence through a fine default compared with those who lost their licence due to unsafe driving.⁴⁸

The number of offenders sentenced for the offence of “drive whilst suspended” has increased since 2002, where it was ranked 10th (representing 3.1% of cases), to rank seventh in 2007 (representing 4.2% of cases) and 2010 (representing 3.7% of cases). The gradual rise observed from 2002 to 2007 may well have continued in 2010 had some of these offenders not been diverted to the new offence of “drive whilst suspended under s 66 of the Fines Act 1996”. The change effected by introducing the new offence may also explain the noticeable reduction (17.8%) in the number of cases for the offence of “drive whilst suspended” between 2007 and 2010.

The Criminal Procedure Further Amendment (Penalty Notices) Regulation 2007 provided that the previous trial scheme of criminal infringement notices (CINs) for a number of offences, including “stealing” (where the value of property stolen was less than $300), “offensive language”, “offensive behaviour” and “goods in custody”, operate for all of NSW.⁴⁹ It enabled police officers to issue on-the-spot fines for these offences where previously offenders had been taken to the police station to be charged. The introduction of CINs may explain why the offences of “offensive behaviour” and “offensive language” were no longer in the list of the 20 most common statutory offences in 2010. It may also explain why there was a 30.4% decrease in the number of offenders sentenced for “larceny” and why “larceny” fell from fifth in 2007 (representing 4.7% of cases) to 10th in 2010 (representing 3.5% of cases).

There was a 32.1% increase in the number of offenders sentenced for “possess prohibited drug”. This offence moved up the list from sixth ranking in 2007 (representing 4.5% of cases) to fourth in 2010 (representing 6.3% of cases). The number of offenders sentenced for “knowingly contravene AVO” also increased by 23.2%, with the offence moving up from 13th ranking in 2007 (representing 2.8% of cases) to eighth in 2010 (representing 3.6% of cases).

Penalties for the 20 most common statutory offences

Table 2 shows the penalty distribution for the 20 most common statutory offences (principal offences only) in 2010. The sentencing patterns for these offences are analysed below. Many factors are taken into account when sentencing an offender, including his or her prior record, the number of offences and the plea. The following penalty information does not differentiate between these factors. The offences are listed according to their rankings in Table 1. The penalties imposed within each offence are listed in order of the most frequently imposed to the least.⁵⁰

Table 2: Distribution of penalty types for the most common statutory offences (principal offence only) in the NSW Local Court in 2010

1. Mid-range PCA

Road Transport (Safety and Traffic Management) Act 1999, s 9(3).

Maximum penalty: 9 mths and/or 20 pu (first offence) [automatic licence disqualification 12 mths,⁵¹ 12 mths and/or 30 pu (second or subsequent offence) [automatic licence disqualification 3 yrs, minimum 12 mths].

Sentences

• fines (67.6%): the median fine was $700, common fines were $600 (13.4%), $800 (13.1%) and $500 (11.7%); 55.2% of fines were in the middle 50% range of $500–$800
• s 10 bonds (13.5%): the median duration was 12 months
• s 9 bonds (12.7%): 29.6% were supervised; the median duration was 12 months
• CSOs (2.5%): the median term was 120 hours
• suspended sentences (1.3%): 50.4% were supervised; the median term was 8 months
• s 10 dismissals (0.9%), full-time imprisonment (0.7%), s 10A convictions (0.5%), PD (0.2%), HD (0.1%) and ICOs (0.02%).

The distribution of penalties for this offence was very similar to that reported in 2007. The offence had the fifth highest rate of fines in the list. The use of fines has increased by 3.9 pp since 2007. Much of this increase was offset by a decrease in the use of s 10 orders (3.0 pp), although CSOs and custodial sentences also decreased (0.6 pp for each). The median fine was unchanged from 2007, but has increased from $600 in 2002. The median term of full-time imprisonment was unchanged from the previous studies (6 months).

Licence disqualification

The vast majority of offenders (85.6%) were disqualified from holding a driver’s licence. As the use of s 10 orders has gradually decreased, a gradual increase in disqualifications has been observed from 73.3% in 2002, 82.6% in 2007 to 85.6% in 2010, with a noticeable increase of 12.3 pp since 2002. In 2010, the median period of disqualification was 7 months and the mode was 6 months (46.6%).⁵² The next most common period of disqualification was 12 months (21.3%). The median period of disqualification was the same as that reported in 2002, but down from 8 months in 2007.

2. Common assault

Crimes Act 1900, s 61.

Maximum penalty: 2 yrs.

Jurisdictional maximum in Local Court: 12 mths and/or 20 pu.⁵³

Sentences

• s 9 bonds (40.0%): 34.0% were supervised; the median duration was 12 months
• s 10 bonds (22.6%): the median duration was 12 months
• fines (19.0%): the median fine was $500, the mode was also $500 (20.9%); 51.3% of fines were in the middle 50% range of $350–$700
• full-time imprisonment (5.9%): the median full term was 6 months and the median NPP/fixed term was 4 months
• s 10 dismissals (4.4%)
• suspended sentences (4.2%): 64.2% were supervised; the median term was 8 months
• CSOs (2.5%): the median term was 100 hours
• s 10A convictions (0.9%), PD (0.3%), ROC (0.1%), HD (0.01%) and ICOs (0.01%).

This offence had the third highest rate of s 9 bonds and s 10 bonds in the list, the latter increasing by 5.1 pp since 2007. This increase has mainly been at the expense of penalties at the higher end of the sentencing hierarchy, especially full-time imprisonment (down 1.3 pp), s 12 suspended sentences (down 1.2 pp), and CSOs (down 0.9 pp). The median term of full-time imprisonment and the median fine were unchanged from 2007.

3. Low-range PCA

Road Transport (Safety and Traffic Management) Act 1999, s 9(2).

Maximum penalty: 10 pu (first offence) [automatic licence disqualification 6 mths, minimum 3 mths]; 20 pu (second or subsequent offence) [automatic licence disqualification 12 mths, minimum 6 mths].

Sentences

• fines (56.4%): the median fine was $450, common fine amounts were $500 (20.4%) and $400 (17.1%); 63.9% of fines were in the middle 50% range of $300–$550
• s 10 bonds (34.8%): the median duration was 12 months
• s 10 dismissals (7.5%), s 10A convictions (0.7%), s 9 bonds (0.6%) and CSOs (0.02%).

The distribution of penalties for this offence was very similar to that observed in 2007 and 2002. This offence had the highest rate of s 10 bonds in the list, as it did in 2007 (32.5%) and 2002 (31.0%).

Licence disqualification

More than half of offenders (57.7%) were disqualified from holding a driver’s licence, which represented a decrease of 2.7 pp since 2007. The median and mode periods of disqualification were both 3 months (54.1%).⁵⁴ The next most common period of disqualification was 6 months (23.4%). The median period of disqualification was the same as that reported in 2002, but down from 4 months in 2007.

4. Possess prohibited drug

Drug Misuse and Trafficking Act 1985, s 10(1).

Maximum penalty: 2 yrs and/or 20 pu.

Sentences

• fines (58.8%): the median fine was $300, common fines were $200 (17.1%), $300 (15.2%); 69.5% of fines were in the middle 50% range of $200–$500
• s 10 bonds (17.3%): the median duration was 12 months
• s 10 dismissals (8.8%)
• s 9 bonds (8.8%): 41.7% were supervised; the median duration was 12 months
• s 10A convictions (3.7%)
• full-time imprisonment (1.4%): the median full term and NPP/fixed term were both 2 months
• suspended sentences (0.6%), CSOs (0.4%), ROC (0.1%) and PD (0.02%).

Penalties for this offence were more lenient in 2010 compared with 2007. Since 2007, the proportion of offenders receiving a fine, s 9 bonds and full-time imprisonment decreased by 8.0 pp, 2.8 pp and 1.1 pp respectively. There were corresponding increases of 7.5 pp for s 10 bonds, 3.3 pp for s 10 dismissals, and 2.1 pp for s 10A convictions. This offence recorded the third highest rate of s 10A convictions in the list. Further, the offence had the shortest median full term (unchanged from 2007) and NPP/fixed term of full-time imprisonment in the list.

Drug type

Cannabis was the type of drug possessed in the majority of cases (56.0%), followed by ecstasy (17.3%), amphetamines (13.8%), heroin (5.9%) and cocaine (5.0%). The remaining 1.9% of possession offences involved other types of drugs.⁵⁵

Fines were imposed more often for offenders who were in possession of cannabis (70.5%), compared with heroin (58.8%), amphetamines (55.3%), cocaine (38.7%) and ecstasy (30.7%). Possession of heroin was more likely to attract full-time imprisonment or a s 9 bond than any other drug type (6.1% and 17.2% respectively). On the other hand, possession of ecstasy, and to a lesser extent cocaine, attracted the highest rates of s 10 bonds (44.5% and 40.9% respectively) and s 10 dismissals (20.0% and 12.1% respectively). For offenders sentenced to full-time imprisonment, possession of heroin and amphetamines attracted the longest median full term and NPP/fixed term (both 3 months), while possession of cannabis attracted the shortest median full term and NPP/fixed term (both 1 month). For those fined, possession of amphetamines, cocaine and ecstasy attracted the highest median fine ($350), while possession of cannabis attracted the lowest median fine ($250).

5. Drive whilst disqualified

Road Transport (Driver Licensing) Act 1998, s 25A(1).

Maximum penalty: 18 mths and/or 30 pu (first offence) [automatic licence disqualification 12 mths]; 2 yrs and/or 50 pu (second or subsequent offence) [automatic licence disqualification 2 yrs].

Sentences

• s 9 bonds (23.1%): 19.0% were supervised; the median duration was 18 months
• fines (21.0%): the median fine was $750; the mode was $1,000 (18.3%); 62.8% of fines were in the middle 50% range of $500–$1,000
• CSOs (16.2%): the median term was 100 hours
• suspended sentences (16.0%): 33.3% were supervised; the median term was 9 months
• full-time imprisonment (14.2%): the median full term was 9 months and the median NPP/fixed term was 6 months
• s 10 bonds (4.2%): the median duration was 15.5 months
• PD (2.2%): the median full term was 9 months and the median NPP/fixed term was 6 months
• s 10 dismissals (1.4%), HD (0.9%), s 10A convictions (0.4%) and ICOs (0.3%).

This offence continued to have an unusually high rate of custodial sentences relative to other driving offences in the list, despite having the same maximum penalty.⁵⁶ It had the highest rate of custodial sentences (17.6%) of any offence in the list, as was the case in 2007. The proportion of offenders given a custodial sentence was less than that observed in 2007 and 2002 (4.8 pp and 9.4 pp less respectively). The offence had the highest rates in the list for five penalty types: CSOs, suspended sentences, PD, HD and ICOs. It also had the fifth highest rate of full-time imprisonment, with the same median full term as in 2007.

Licence disqualification

The vast majority of offenders (94.4%) were disqualified from holding a driver’s licence. This offence had the second highest rate of disqualification in the list. The median and mode periods of disqualification were both 2 years (80.4%).⁵⁷ The next most common period of disqualification was 12 months (15.1%). These figures were similar to those observed in 2007 and 2002.

6. Assault occasioning actual bodily harm

Crimes Act 1900, s 59(1).

Maximum penalty: 5 yrs.

Jurisdictional maximum in Local Court: 2 yrs and/or 50 pu.

Sentences

• s 9 bonds (46.1%): 35.3% were supervised; the median duration was 15 months
• full-time imprisonment (15.9%): the median full term was 12 months and the median NPP/fixed term was 6 months
• suspended sentences (10.9%): 69.5% were supervised; the median term was 10 months
• s 10 bonds (9.8%): the median duration was
  12 months
• fines (8.4%): the median fine was $700 and the mode was $500 (18.0%); 67.8% of fines were in the middle 50% range of $500–$1000
• CSOs (7.0%): the median term was 150 hours
• s 10 dismissals (0.9%), PD (0.8%), s 10A convictions (0.2%) and ICOs (0.1%).

This offence attracted the second highest rate of full-time imprisonment and the lowest rate of fines of any offence in the list. It also had the second highest rate of suspended sentences and s 9 bonds and the third highest rate of CSOs and PD. It also had the longest median term of full-time imprisonment in the list. While the use of particular penalties fluctuated slightly, the distribution of penalties was similar to that observed in 2007.

The distribution of penalties for this offence substantially mirrors the distribution of penalties for the offence of “stalk or intimidate with intent to cause fear of physical or mental harm”, a new offence in the list (see Item 13 below). However, the penalty lengths were higher for the offence, “assault occasioning actual bodily harm”.

7. Drive whilst suspended

Road Transport (Driver Licensing) Act 1998, s 25A(2).

Maximum penalty: 18 mths and/or 30 pu (first offence) [automatic licence disqualification 12 mths]; 2 yrs and/or 50 pu (second or subsequent offence) [automatic licence disqualification 2 yrs].

Sentences

• fines (58.4%): the median fine was $500; the mode was also $500 (21.5%); 51.7% of fines were in the middle 50% range of $400–$600
• s 10 bonds (19.8%): the median duration was 12 months
• s 9 bonds (10.1%): 12.9% were supervised; the median duration was 12 months
• s 10 dismissals (6.8%)
• CSOs (1.7%); the median term was 100 hours
• s 10A convictions (1.2%)
• suspended sentences (1.0%): 38.5% were supervised; the median term was 9 months
• full-time imprisonment (0.7%), PD (0.2%), HD (0.1%) and ICOs (0.03%).

As a consequence of the diversion of less serious offenders from this offence to the offence of “drive whilst suspended under s 66 of the Fines Act 1996”,⁵⁸ it would not be surprising to find that penalties have become more severe than in previous studies. While little difference was observed in the types of penalties imposed in 2007 and 2002, the terms were slightly longer in 2010.

As expected, sentencing patterns for this offence were more severe than for the new offence even though it has the same maximum penalty.⁵⁹

Licence disqualification

Almost three-quarters of offenders (73.4%) were disqualified from holding a driver’s licence. The median and mode periods of disqualification were both 12 months (76.9%).⁶⁰ The next most common period of disqualification was 2 years (14.8%). These figures were similar to those observed in 2007.

8. Knowingly contravene AVO

Crimes (Domestic and Personal Violence) Act 2007, s 14(1).⁶¹

Maximum penalty: 2 yrs and/or 50 pu.

Sentences

• s 9 bonds (35.6%): 39.1% were supervised; the median duration was 12 months

• fines (19.3%): the median fine was $400; common fines were $500 (18.5%), $200 and $300 (both 15.8%); 73.1% of fines were in the middle 50% range of $200–$500
• full-time imprisonment (14.5%): the median full term was 6 months and the median NPP/fixed term was 3 months
• suspended sentences (8.8%): 59.2% were supervised; the median term was 8 months
• s 10 bonds (7.9%): the median duration was
  12 months
• s 10A convictions (4.8%)
• s 10 dismissals (4.5%)
• CSOs (4.0%): the median term was 100 hours
• ROC (0.3%), PD (0.3%), HD (0.03%) and ICOs (0.03%).

Subsection 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 provides that unless the court otherwise orders, a person who is convicted of an offence under this section must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.

A term of imprisonment was imposed on 23.7% of offenders. Most terms of imprisonment were full-time (14.5%, the fourth highest rate in the list), however 8.8% were suspended sentences (also the fourth highest rate in the list). While the proportion of offenders receiving a term of imprisonment was 2.1 pp higher than 2002, it has decreased by 4.4 pp since 2007. Whether this fall was due to fewer offences involving an act of violence or to some other factor(s) cannot be established from the data.

This decrease has been offset by increases in the use of s 10A convictions, s 9 bonds, and s 10 bonds (3.0, 2.1, and 1.6 pp respectively). This offence recorded the second highest rate of s 10A convictions and the fifth highest rate of s 9 bonds in the list. The use of fines was relatively low compared with other offences in the list, with this offence having the fourth lowest rate of fines.

While the median term of full-time imprisonment was higher than 2002 (4.5 months), it was unchanged from 2007 (6 months). The median fine was higher than the 2002 and 2007 studies (both $300).

9. Destroy or damage property⁶²

Crimes Act 1900, s 195(1)(a).

Maximum penalty: 5 yrs.

Jurisdictional maximum in Local Court: 12 mths and/or 20 pu (property value does not exceed $2,000);⁶³ 12 mths and/or 50 pu (property value does not exceed $5,000);⁶⁴ 2 yrs or 100 pu (property value exceeds $5,000).

Sentences

• fines (39.9%): the median fine was $400, common fines were $500 (17.7%), $400 (15.2%) and $300 (14.9%); 58.0% of fines were in the middle 50% range of $250–$500
• s 9 bonds (24.4%): 38.9% were supervised; the median duration was 12 months
• s 10 bonds (16.6%): the median duration was 12 months
• s 10 dismissals (7.3%)
• full-time imprisonment (3.5%): the median full term and NPP/fixed term were both 3 months
• CSOs (2.9%): the median term was 100 hours
• s 10A convictions (2.8%)
• suspended sentences (2.3%): 66.3% were supervised; the median term was 7 months
• PD (0.2%), ROC (0.1%), ICOs (0.1%) and HD (0.02%).

Sentencing patterns for this offence indicate that the court imposed more lenient sentences in 2010 compared with 2007, with rates of full-time imprisonment and s 9 bonds falling 1.4 pp and 3.1 pp respectively. Conversely, the use of penalties at the lower end of the sentencing hierarchy increased, with s 10 bonds increasing by 3.0 pp and s 10A convictions increasing by 1.7 pp. The median fine was unchanged from 2007, but has increased from $300 in 2002. The median term of full-time imprisonment was unchanged from the previous studies.

Property value

Most offences (93.1%) involved property worth up to $2,000,⁶⁵ with sentences for this group closely resembling the overall patterns for this offence. Offences in the middle band (property from $2,001 to $5,000) and the upper band (property worth more than $5,000) accounted for 5.2%, and 1.7% of cases respectively.

Figure 2 shows the distribution of penalty types for destroy or damage property offences according to the value of property.

Figure 2: Distribution of penalty types for destroy or damage property offences in the NSW Local Court in 2010 according to the value of property

Although the number of cases in the upper band was small, these offenders received more severe penalties, with 15.8% receiving a custodial sentence compared with 7.0% of offenders falling in the middle band and 3.7% of offenders falling in the lower band. This pattern was observed particularly for full-time imprisonment: 13.2% compared with 6.1% and 3.6% respectively. These offenders also received much higher rates of CSOs (13.2% compared with 5.3% and 2.6% respectively). Conversely, fines were imposed less frequently (13.2% compared with 24.6% and 41.1% respectively).

Terms of full-time imprisonment were also more severe where the property involved was of greater value. Offences in the upper, middle and lower bands attracted a median full term of 9 months, 6 months and 3 months respectively, and a median NPP/fixed term of 5 months, 3 months and 3 months respectively.

10. Larceny

Crimes Act 1900, s 117.

Maximum penalty: 5 yrs.

Jurisdictional maximum in Local Court: 12 mths and/or 20 pu (property value does not exceed $2,000);⁶⁶ 12 mths and/or 50 pu (property value does not exceed $5,000);⁶⁷ 2 yrs or 100 pu (property value exceeds $5,000).

Sentences

fines (36.4%): the median fine was $400; the mode was $500 (18.5%); 69.6% of fines were in the middle 50% range of $200–$500

• s 9 bonds (23.2%): 42.9% were supervised; the median duration was 12 months
• full-time imprisonment (15.0%): the median full term was 6 months and the median NPP/fixed term was 4 months
• s 10 bonds (9.5%): the median duration was
  12 months
• suspended sentences (6.4%): 60.3% were supervised; the median term was 8 months
• s 10 dismissals (4.0%)
• CSOs (2.8%): the median term was 100 hours
• s 10A convictions (2.1%)
• ROC (0.2%), HD (0.2%), PD (0.1%) and ICOs (0.1%).

This offence had the highest representation of females (39.7%) of any offence in the list. It was the third most common offence for females, while it was the 12th most common offence for males. It also had the third highest rate of full-time imprisonment in the list.

As expected, due to the introduction of CINs,⁶⁸ sentencing patterns for “larceny” in 2010 were more severe when compared with those observed in 2007 and 2002. There was an increase in full-time imprisonment (up 3.1 pp and 4.4 pp respectively) and s 9 bonds (up 3.0 pp and 7.1 pp respectively), and a corresponding decrease in fines (down 3.4 pp and 6.7 pp respectively), s 10 dismissals (down 3.2 pp and 3.7 pp respectively), and s 10 bonds (down 2.6 pp and 2.0 pp respectively).

The median fine has increased from the previous studies (both $300), while the median term of full-time imprisonment was unchanged from 2007, but has increased from 4 months in 2002.

Property value

Most offences (94.4%) involved property worth up to $2,000,⁶⁹ with only 3.7% of cases falling in the middle band (property from $2,001 to $5,000) and 1.9% of cases falling in the upper band (property worth more than $5,000). The statistics indicate a gradual increase in the severity of penalties where the property value increased.

Figure 3 shows the distribution of penalty types for larceny offences according to the value of property stolen.

Figure 3: Distribution of penalty types for laceny offences in the NSW Local Court in 2010 according to the value of the property