Blog authored by Tim Cullenward
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:
- Section 10(l)(a) dismissal without proceeding to conviction.
- 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)
- Section 10(l)(c) order discharging the defendant on condition that the defendant entered into an agreement to participate in an intervention program
- Section 9(l)(a) Conditional Release Order proceeding to conviction (CRO with conviction)
- Section 10A conviction with no other penalty
- A fine (Fines Act 1996)
- Section 8(1) Community Correction Order(CCO)
- Section 7(1) Intensive Correction Order(ICO)
- 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:
- character, antecedents, age, health and mental condition;
- whether the offence is of a trivial nature;
- extenuating circumstances in which the offence was committed;
- any other matter proper to consider.
- 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.