THERE IS MORE TO PUNISHMENT THAN JUST IMPRISONMENT
If you are found guilty of a crime or traffic offence – the Court will sentence you to the appropriate penalty. These range from a fine only, for the least serious offences, to imprisonment, for the most serious of crimes. It is a principle established in our common law system that imprisonment is to be a sanction of last resort. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 made that common law principle into a legislated provision. It provides that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Here is a brief overview of the penalties available to Magistrates and Judges in all jurisdictions; from Local Court, to District and Supreme Courts.
IMPRISONMENT
Once a term of imprisonment has been decided on, the Court must then consider whether there is an alternative to full-time imprisonment and if it should be utilised. Our case law says that if a sentence is less than two years’ imprisonment and there are clear alternatives available, it is preferable that a Judge make it clear that such alternatives have been considered and explain why they are not appropriate, as per Campbell v R [2018] NSWCCA 87. If there is no alternative to full-time imprisonment, this means the offender is taken into custody to gaol for the entirety of their sentence, or until they can apply to be released on parole.
INTENSIVE CORRECTION ORDER (ICO)
An ICO is an alternative form of imprisonment, served in the community rather than in full-time custody. Offenders are under intensive supervision and this helps the Courts ensure that offenders address their behaviour and are held accountable. When deciding whether to impose an ICO, the safety of the community is the paramount consideration upon doing so. The idea in ordering an ICO is to reduce re-offending, by supervising offenders within the community and having them participate in programs as an effective method of rehabilitation. The Court must impose the standard conditions and at least one additional condition, that is suitable for their individual needs and circumstances. The standard conditions are that the offender must not commit any offence and must submit to supervision by a community corrections officer. Additional conditions include home detention, electronic monitoring, a curfew which exceeds 12 hours in any 24-hour period, community service work, participating in a rehabilitation program, abstaining from drugs, alcohol, or both, not associating with persons, and prohibition on visiting certain places. The most serious breaches of these conditions can result in revocation of the ICO, meaning imprisonment will have to be served full-time. ICOs must not be made for a single offence if the term of imprisonment is over 2 years. If two or more ICOs are made, the combined period of imprisonment must not be more than 3 years. ICOs are not available to certain offences including murder/manslaughter, some sexual offences, some terrorism offences, breaches of serious crime prevention and public safety orders, and some discharge firearm offences.
COMMUNITY CORRECTION ORDER (CCO)
These are a non-custodial alternative to full-time imprisonment so that offenders can receive supervision with the same goals as an ICO. This can be ordered for a maximum period of 3 years. The standard conditions for CCOs are the same as for ICOs. For CCOs, the Court is not required to impose an additional condition. The additional conditions are the same for CCOs as ICOs, except that CCOs have an additional supervision condition. The nature of an ICO is for an offender to be supervised, hence why that condition is not listed as additional. CCOs also must not have the additional conditions of home detention, electronic monitoring, or a curfew exceeding 12 hours in any 24-hour period. There may otherwise be an ordinary curfew condition. If a CCO condition is breached, the offender may have to appear before the Court, and if they do not appear a warrant can be issued for their arrest. Once the offender is before the Court, it may take no action, vary or revoke conditions, impose further conditions or may revoke the Order. If the order is revoked, it may sentence or re-sentence the offender for the offence to which the Order relates.
CONDITIONAL RELEASE ORDER (CRO)
A CRO can be made either with or without a conviction recorded. It is at the discretion of the Magistrate to decide, based upon subjective and objective features of the case, whether a conviction is warranted or not. These replaced what was commonly known as a ‘good behaviour bond’. In practice, it is essentially the same thing. These Orders can be made for a period of no more than 2 years and must include the two standard conditions and may be supplemented by additional and further conditions if appropriate. In matters of domestic violence, a CRO can only be imposed if it includes a supervision condition and the safety of the victim will be considered before doing so. The standard conditions are that the offender must not commit any offence and must appear before the Court if called on to do so at any time during the term of the CRO. The additional conditions include rehabilitation, abstention from alcohol, drugs or both, non-association with certain people, restrictions on visiting places, and supervision. The Court may have regard to the following things when deciding whether they should convict an offender and make a CRO:
- The person’s character, antecedents, age, health and mental condition;
- Whether the offence is of a trivial nature;
- The extenuating circumstances in which the offence was committed; and
- Any other matter the Court thinks proper to consider.
If conditions are breached, the offender may be brought back to the Court to have the breach and original offence re-sentenced.
OTHER LESS PUNITIVE MEASURES
The Court has the discretion to Order other penalties such as: conviction with no other penalty, deferral for rehabilitation or another purpose, suspended sentences, and a fine only. These reflect circumstances where perhaps the offending behaviour was trivial on the scheme of criminal offences, or it was a person’s first offence, or there are other causes for the offending behaviour that need to be addressed such as a drug addiction or a mental health issue.
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