The Law Society of NSW Specialist Accredititation 

BLOGS

Any information contained in a blog on this website is general in nature only. The content of any blog posted below reflects information which is known to us as at the date of the posting of the blog. Please be aware that the law regularly changes. Please do not rely on the general information contained in the below blogs, instead we recommend that you contact us to obtain legal advice tailored to your own specific situation.

 

Nov01

Changes to Sentencing

Amanda Quin - Thursday, November 01, 2018

Blog authored by Tim Cullenward

Criminal Law Changes and Impacts

The Rural Issues Conference held in Sydney on 26 October 2018 was attended recently by several members of the firm and proved informative on a number of relevant issues. Once such issue was the recent changes to the Crimes (Sentencing Procedure) Act 1999.

Many people would have heard the term “section 10” mentioned in professional and social contexts, when discussing potential outcomes to PCA offences or other criminal matters. The expression "section 10" refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction. Because there is no conviction, there is no criminal record. This blog intendeds to demonstrate the changes to that section and others, in terms of relevant sentences available to offenders.

As of 24 September 2018, sentencing options available to offenders changed in accordance with the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. They include the following amendments:

  1. Section 10(l)(a) dismissal without proceeding to conviction.
  2. Section 10(l)(b) order discharging the defendant under a Conditional Release Order (CRO) referred to in s9(l)(b) without proceeding to conviction (CRO without conviction)
  3. Section 10(l)(c) order discharging the defendant on condition that the defendant entered into an agreement to participate in an intervention program
  4. Section 9(l)(a) Conditional Release Order proceeding to conviction (CRO with conviction)
  5. Section 10A conviction with no other penalty
  6. A fine (Fines Act 1996)
  7. Section 8(1) Community Correction Order(CCO)
  8. Section 7(1) Intensive Correction Order(ICO)
  9. full-time imprisonment.

In addition, if a court finds a person guilty of a domestic violence offence, the court must impose on the person either: (a) a sentence of full-time detention, or (b) a supervised order under section 4A of the Sentencing Act. A "supervised order" is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.However, a court is not required to impose full-time detention or a supervised order if the court is satisfied a different sentencing option is more appropriate in the circumstances of the case and records its reasons for reaching that view.

The court must consider the safety of the victim of the offence before imposing a community correction order or conditional release order on a person guilty of a domestic violence offence. A court cannot make an order for an ICO unless it is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected by conditions of the ICO or for some other reason.

If a court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

New Orders: CRO, CCO and ICO

These Orders have standard conditions that must be imposed. For CRO's and CCO's the standard conditions are that the offender must not commit any offence and must appear before court during the term of the order if called upon to do so. The standard conditions of an ICO are that the offender must not commit any offence and must submit to the supervision of a community corrections Officer. This is substantially similar to the previous model that most people are aware of.

Intensive Corrections Orders

A court that has sentenced an offender to imprisonment for one or more offences may make an ICO directing that the sentence(s) be served by way of ICO, in the community. There is no non-parole period, and the Order is not available if the offender is under the age of 18 years. The Court will require an assessment report on suitability for such an order.

Before a Court will consider an ICO, it will consider the safety of the community as the foremost issue. There are a number of considerations and restrictions in place regarding ICO’s, and these orders are usually imposed in severe circumstances. For more information, please contact our office.

Community Correction Orders

Instead of imposing a sentence of imprisonment, a court may make a community correction order (CCO) in relation to an offender. The maximum term of a CCO is 3 years, and it commences on the date when the Order is made. The standard conditions on a CCO include not to commit any offence and to appear before the court if called on to do so during the term of the CCO. A Court may also impose additional conditions or vary/revoke any such additional conditions. Additional conditions include curfew, community service work (not exceeding 500 hours or hours prescribed by regulations) rehabilitation or treatment, abstention condition alcohol or drugs or both non-association place restriction and supervision by community corrections or juvenile justice.

Home detention and electronic monitoring or a curfew exceeding 12 hours in any 24-hour period cannot be imposed on a CCO. Community service work cannot be imposed without an assessment report confirming the offender is suitable.

Conditional Release Orders

Instead of imposing a sentence of imprisonment or a fine (or both), a court may make a conditional release order discharging the offender if (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under sl0(l)(b).

In deciding whether to make a CRO with a conviction, the court must have regard to:

  1. character, antecedents, age, health and mental condition;
  2. whether the offence is of a trivial nature;
  3. extenuating circumstances in which the offence was committed;
  4. any other matter proper to consider.

 

Additional notes:

  • A court cannot impose a fine and a CRO on the same offender for the same offence.
  • A CRO with conviction may be made as an alternative to imposing a fine.
  • The maximum term of a CRO is 2 years and commences on the date it is made.
  • The court must impose the standard conditions on a CRO. Those conditions are not commit any offence, and to appear before court if called upon to do so during the term of the CRO.
  • The Court also has discretion to impose additional conditions, as discussed above.

For more information, please contact our office.

 

 

Nov01

Blog authored by Tim Cullenward

Overview

Many would now be aware (either by print, news or social media) of a new road rule now in place in NSW, designed to improve the safety of emergency workers and people they are protecting. There is has been significant discussion about the implantation of this new rule, with many in favour of improved safety measures, with some expressing outrage over the dangers in having to dramatically reduce speed with very little warning.

Transport for NSW, with the support of emergency service agencies and other stakeholders, launched a community education campaign across NSW on 30 July 2018 to give the community time to understand the requirements of the rule. The campaign includes TV and radio advertising, social media promotion and digital signage on major roads.

According to the Transport for NSW, Centre for Road Safety, the rule was introduced to improve the safety of police and emergency workers, as well as the people they are protecting. Police, firefighters, paramedics, State Emergency Service and rescue volunteers perform difficult and dangerous work for the community and like everyone, they should feel safe and know that they are protected at work. The new rule provides certainty for motorists about how they should behave when emergency vehicles are stationary on the road and displaying blue or red flashing lights. The new rule also establishes a required standard for safe behaviour and further ensures emergency workers can do their work without worrying about being struck by a passing vehicle. The rule has been designed to provide maximum safety benefits to emergency workers while keeping it simple for the community to understand.

The NSW Government has stated it will monitor the safety and traffic impacts of the rule during a 12-month trial period in consultation with NSW Police, emergency service organisations and other stakeholders. This will allow an evaluation of the safety impacts and any other consequences of the new rule and enable consideration of reviews and outcomes from other jurisdictions implementing similar rules.

The NSW Government will monitor the safety and traffic impacts of the rule in the 12 months the trial is running, in consultation with key stakeholders, as part of an independent evaluation to determine the impact on the safety of emergency service workers and drivers.

The short version

  1. The new rule can be found in the Road Rules 2014, Regulation 78-1 (Approaching or passing stationary emergency response vehicles).
  2. The new rule requires motorists to slow down to 40km/h when passing a stationary emergency vehicle displaying blue or red flashing lights.
  3. The rule also requires motorists to give way to any person on foot in the immediate area of the emergency vehicle. Motorists should not increase their speed until they are a safe distance past the vehicle.
  4. The rule applies to vehicles travelling in both directions, unless the road is divided by a median strip.
  5. Motorists who do not comply with the rule will face a $448 fine and three (3) demerit points.
  6. A maximum court penalty of $2,200 will also apply. This is comparable with the current penalty when it is determined that a motorist has driven negligently in the presence of obstructions or hazards, including stopped emergency vehicles and personnel.

Key Elements from Transport for NSW, Centre for Road Safety:

  • Motorists must not exceed 40km/h when passing a stationary emergency vehicle displaying flashing blue or red lights.
  • Motorists must also give way to any person on foot near an emergency vehicle displaying flashing lights and not increase speed until a sufficient distance past the vehicle.
  • The rule will not apply when an emergency vehicle displaying blue or red flashing lights is on the opposite side of a road separated by a median strip.
  • 40km/h is considered a safe speed around vulnerable road users. This speed is consistent with speed limits in school zones, many work zones, and environments with vulnerable and unprotected road users, such as high pedestrian activity areas.
  • The new rule will require that motorists do not increase their speed until a sufficient distance past the emergency vehicle so as not to cause a danger to any person near the vehicle (for example, a fire truck may be stationed by the roadside with flashing lights and firefighters may be managing a fire a short distance away from the vehicle. In this instance, motorists should not increase their speed until they are fully past the vehicle and the emergency workers. In contrast, motorists will be required to slow down to 40km/h for a shorter distance when passing a police vehicle that has pulled over another vehicle on the side of the road).
  • It is the responsibility of all drivers to be aware of the individual circumstances of each roadside incident and to drive at a safe and appropriate speed under the speed limit.
  • The rule applies to all roads, including motorways, highways and freeways.
  • If there is a median strip between your vehicle and the stationary emergency vehicle you will not need to slow down.
  • If the emergency vehicle is on the median strip, then the rule will apply to vehicles on both sides of the road.
  • A median strip is an area or structure that separates vehicles travelling in opposite directions. A median strip can be covered in grass, it can include or be a wire rope or concrete barrier or be a continuous painted island filled with diagonal bars.
  • A median strip does not include double white lines, a single white line or a broken white line on its own or in combination with a continuous white line. It also does not include wide centre lines or short painted islands typically found as part of intersection turning lanes.
  • Motorists must slow down to 40km/h when passing the following emergency vehicles when stationary and displaying flashing blue or red lights:
    • NSW Police Force vehicles
    • Ambulance Service of NSW vehicles
    • Fire & Rescue NSW vehicles
    • State Emergency Service vehicles
    • Rural Fire Service vehicles
    • Volunteer Rescue Association vehicles
    • Traffic Emergency Response vehicles
  • Motorists should always start slowing down in a controlled manner as soon as they first see blue or red flashing lights, taking into account the current road conditions including surrounding vehicles;
  • If an emergency vehicle is attending an incident in an area of low visibility, due to the location or weather conditions, it will be because there are no other options to move to a safer location. Further care should be taken in these circumstances.

For more information, please contact our office.