Criminal Penalties

The following kinds of sentences can be imposed upon a person:

1.      Section 10 Dismissal

2.      Conditional release order

3.      Fine

4.      Community Corrections Orders

5.      Intensive Corrections Orders

6.      Imprisonment

SECTION 10 DISMISSAL

THE PROVISION:

Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives a magistrate (in the local court) or a judge (in the district or supreme court) the option to dismiss the charges after a finding of guilt. This kind of sentence is extremely rare, and the court is often hesitant to order section 10’s in the absence of circumstances which warrant a dismissal.

In deciding whether the court should grant a section 10 dismissal the court will consider the following facts:

a)      The person’s character, antecedents, age, health and mental condition,

b)      The trivial nature of the offence

c)      The extenuating circumstances in which the offence was committed, and

d)      Any other matter the court thinks proper to consider.

CONDITIONAL RELEASE ORDER

THE PROVISION

Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives a magistrate (in the local court) or a judge (in the district or supreme court) the option to release the offender on conditions for a period of up to two years. The court can issue a conditional release order with or without conviction.

If the court issues a conditional release order with conviction this will appear on a person’s criminal history unless or until that conviction is spent.

If the court issues a conditional release order without conviction, it won’t appear on a person’s criminal record, however if the person commits a further offence or breaches a condition of the order during the period that it exists, they will be re-sentenced on that Conditional release order, and it would be unlikely that the court will give the person a non-conviction once again.

FINE

A fine can be imposed on its own or alongside any other penalty except for when the court imposes a section 10 dismissal or a conditional release order. A person will have to pay the fine within 28 days of the penalty being imposed, however it is possible for fines to be put onto ‘payment plan’s’ which allows a person to pay the fine week by week.

COMMUNITY CORRECTIONS ORDER

THE PROVISION:

Section 8(1) of the Crimes (Sentencing procedure) Act 1999 (NSW) gives a magistrate (in the local court) or a judge (in the district or supreme court) the option to order that the offender enter into a community corrections order for a period of up to three years. A community corrections order will appear on a person’s criminal record unless or until that conviction is spent.

The kinds of conditions that can be imposed include both standard conditions and additional conditions:

1.      Standard conditions:

a.      The defendant must not commit any further offences, and

b.      The defendant must attend court if called upon to do so.

2.      Additional conditions:

a.      Be subject to a curfew not exceeding 12 hours in any 24 hour period,

b.      Undertake community service work of up to 500 hours,

c.       Participate in rehabilitation program or receive treatment,

d.      Abstain from alcohol and/or drugs

e.      Not to associate with particular persons

f.        Not to enter or frequent a particular place or area, and

g.      Be supervised by community correction,  or if under 18 by a juvenile justice officer.

INTENSIVE CORRECTIONS ORDERS

THE PROVISION:

Section 7(1) of the Crimes (Sentencing procedure) Act 1999 (NSW) gives a magistrate (in the local court) or a judge (in the district or supreme court) the option to order that the offender enter into an intensive corrections order for a period of up to two years.

WHO IS ELIGIBLE FOR AN INTENSIVE CORRECTIONS ORDER?

The court may impose an ICO where it has imposed a term of imprisonment for two years or less. In determining whether an ICO should be ordered rather than a term of full-time term of imprisonment the court must consider community safety as the paramount consideration as well as whether the imposition of an ICO would more likely address the defendant’s risk of re-offending in comparison to full-time imprisonment.

WHO IS NOT ELIGIBLE FOR AN INTENSIVE CORRECTIONS ORDER?

Section 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that a court is not able to impose an Intensive corrections order for the following offences:

a)      Murder or manslaughter; and

b)      A prescribed sexual offence

c)      A terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900,

d)      An offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016,

e)      An offence relating to a contravention of a public safety order under section 87ZA of the Law enforcement (Powers and Responsibilities) Act 2002,

f)       An offence involving the discharge of a firearm

g)      An offence that includes the commission of, or an intention to commit an offence referred to in paragraphs (a)-(f);

h)      An offence of attempting, or a conspiracy or incitement, to commit an offence referred to in paragraphs (a)-(g).

WHAT ARE THE CONDITIONS THAT MAY BE IMPOSED?

The kinds of conditions that can be imposed include both standard conditions and additional conditions:

1.      Standard conditions:

a.      The defendant must not commit any further offences, and

b.      The defendant must attend court if called upon to do so.

2.      Additional conditions:

a.      Home Detention

b.      Electronic monitoring

c.       Curfew

d.      Community service work (up to 750 hours),

e.      Participation in a rehabilitation program or acceptance of treatment,

f.        Abstention from alcohol or drugs, or both,

g.      Non-association with particular persons,

h.      Prohibition from frequenting or visiting a place or area

FULL TIME IMPRISONMENT

THE PROVISION

Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a term of imprisonment should not be ordered unless no other penalty is appropriate. Where the court imposes a sentence of greater than six months in jail, the court will also set a non-parole period. The non-parole period should usually be no less than 75% of the ‘head sentence’, unless the court finds special circumstances exist.

If you are facing a criminal penalty and would like to know more about your chances of reducing your potential penalty then talk the expert criminal lawyers at Australian Criminal Defence. Jospeh Harb and his team will be able to advice you of what’s likely to happen and advice you on the best course of action to reduce your criminal penalty.

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