S9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW): Replacement of the Repealed S10(1)(b)

Legislative Background: The Repeal of Section 10(1)(b)

Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 previously allowed courts to dismiss charges without recording a conviction, provided the offender entered into a good behaviour bond. This provision was designed to offer leniency to first-time or minor offenders, enabling them to avoid the long-term consequences of a criminal record.

However, on 24 September 2018, the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 commenced, leading to significant reforms in sentencing options. As part of these reforms, Section 10(1)(b) was repealed and replaced with Section 9(1)(b), introducing the Conditional Release Order (CRO) as a new sentencing option. This change aimed to streamline sentencing procedures and provide more consistent outcomes across the judicial system.

Introduction of Section 9(1)(b): Conditional Release Orders

Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 empowers a court to make a Conditional Release Order (CRO) without proceeding to conviction. This means that the court can discharge the offender, provided they comply with specified conditions, without recording a criminal conviction.

The CRO serves as an alternative to imposing a sentence of imprisonment or a fine. Under Section 9(1)(b), the court may impose conditions such as attending rehabilitation programs, community service, or regular reporting to a community corrections officer. The maximum duration of a CRO is two years, as stipulated in Section 95(2) of the Act.

Judicial Considerations in Imposing a CRO

When deciding whether to impose a CRO, courts consider various factors to ensure the sentence is appropriate for the offender and the offence committed. These considerations include:

• Nature and Seriousness of the Offence: Courts assess the gravity of the offence to determine if a CRO is suitable.
• Offender’s Criminal History: A history of prior offences may influence the court’s decision.
• Rehabilitation Prospects: The offender’s willingness and ability to rehabilitate are crucial factors.
• Deterrence: The need to deter the offender and others from committing similar offences.
• Personal Circumstances: Factors such as age, employment status, and family responsibilities.

These considerations are outlined in the Judicial Commission of NSW’s Sentencing Bench Book, which provides guidance to courts in applying sentencing laws consistently.

Transitional Arrangements for Pre-Reform Orders

According to the Judicial Commission of NSW, for offences committed before 24 September 2018, Section 10(1)(b) orders remain in force. These orders are subject to transitional provisions under Schedule 2, Part 29, Clause 75 of the Crimes (Sentencing Procedure) Act 1999.

• A good behaviour bond imposed under Section 10(1)(b) is taken to be a CRO made under Section 9 without proceeding to conviction.
• The CRO will expire on the date set by the sentencing court that imposed the original bond.
• The offender is subject to standard CRO conditions and any conditions imposed on the original bond under Section 95(c) in force before 24 September 2018.

These transitional arrangements ensure that offenders who were subject to Section 10(1)(b) orders before the reforms continue to be treated consistently with the new sentencing framework.

Implications of the Reform

The repeal of Section 10(1)(b) and its replacement with Section 9(1)(b) represent a significant shift in sentencing practices in New South Wales. The introduction of the CRO provides courts with a more structured and transparent framework for imposing non-conviction sentences. It also aligns with broader reforms aimed at enhancing the consistency and fairness of the criminal justice system.

For offenders, the CRO offers an opportunity to avoid a criminal conviction while still being held accountable for their actions. Compliance with the conditions of the CRO can lead to the discharge of the offender without a conviction being recorded, preserving their future prospects.