Will I Go To Gaol?

[dropcaps type=’normal’ font_size=’90’ color=’#c6a87d’ background_color=” border_color=”]H[/dropcaps]ave you been charged with a criminal offence and are anxious to know whether you are going to gaol or not? Our Criminal Lawyers Sydney are amongst the Top Lawyers who can advise you on your likely penalty if you are found guilty or plead guilty to a criminal offence.

At National Criminal Lawyers we are experts at explaining to you the most commonly used penalties in New South Wales together with an assessment of what your likely penalty will be. There are a number of different penalties that the NSW Courts can impose ranging from fines, Community Corrections Orders (CRO’s), Intensive Correction Orders (ICO’s) and full-time custody (gaol). The Court can also use its discretion to not impose a criminal conviction and deal with the matter pursuant to Section 10.

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (“Section 10”) allows a court to sentence you without proceeding to a conviction, meaning there is no other penalty and you will have no criminal record. It is not always easy to get a Section 10 so it is important that you speak to a Senior Criminal Defence Lawyer.

A section 10 can be made after a plea of guilty; or in some cases after being found guilty.

Section 10s usually only apply to first offenders and usually only in certain circumstances as the Courts deem appropriate.

Section 10s are normally only given by the Court where your offence warrants no punishment OR only a nominal punishment OR in circumstances where it would be better to not record a conviction.

Section 10 orders may see your offence dismissed outright.

A section 10 means that you can still travel and your career prospects aren’t affected by a criminal record check by an employer. For traffic offences, it means that you are not subject to compulsory disqualification periods and you will retain your driver’s license despite having committed an offence. A person dealt with by section 10 will also keep their demerit points.

In terms of statistics Section 10s were imposed on 19.7% of all statutory offenders.

For more information on Section 10 please visit our dedicated page on how to obtain a section 10.

Certain offences are fine only offences; however other offences will likely carry a possible fine as well as other sentencing alternatives. Fines will be adjusted based on your income and also the criminality of the offence.

Monetary fines are usually imposed for less serious criminal offences such as traffic or summary offences. In imposing a fine, the court will consider your financial circumstances and what the appropriate fine is in your case. Where you are under financial duress or on social security, the court should impose a lesser fine than it would on someone with a high amount of available income.

Where a person is fined, they are convicted of a criminal offence and will have a criminal record.

You will have 28 days to pay your fine, however, if you are having difficulties making payment you can apply to the court prior to the due date to organise payment by instalments.

In terms of statistics fines were the most common penalty, imposed on 41.3% of statutory  offenders.

CROs are new sentencing mechanisms in NSW and will replace the old Section 10(1)(b) non-conviction bonds. CROs will be able to be imposed for a period of up to two years and are usually applied instead of imposing a fine and/or imprisonment.

CROs can be made with or without conviction. If made without conviction this means that you can still travel and your career prospects aren’t affected by a criminal record check by an employer. For traffic offences, it means that you are not subject to compulsory disqualification periods and you retain your driver’s license despite having committed an offence. A person dealt with by non-conviction will also keep their demerit points.

Courts will be able to use CRO to deal with first time and less serious offences where the offender is unlikely to present a risk to the community. Offenders who are sentenced for offences such as driving while disqualified, first time drink driving or low-level drug possession, may receive a CRO.

The benefit of CROs is that the Court will be able to impose conditions such as supervision, non-association requirements and place restrictions where appropriate.

Similar to the intent of non-conviction bonds, the CRO acts as a warning and diverts those less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community.

CROs will enable courts to require defendants:

• To participate in rehabilitation programs or receive treatments;
• Abstain from alcohol, drugs or both;
• Not associate with particular persons;
• Not frequent or visit particular places; and
• Come under the supervision of community corrections officers or, in the case of young persons, juvenile justice officers;

If an offender commits any further offences while on a CRO, subsequent penalties will be more severe. Where a person breaches a CRO a court may:

• Decide to take no action with respect to the failure to comply; or
• Vary the conditions of the bond or impose further conditions on the bond; or
• Revoke the bond.

Where a CRO is revoked, a person will be resentenced for the original offence. The sentence on a breach will usually reflect that, by rejection of trust placed in the offender by the court, he or she has shown a lack of remorse and doubt has been cast on his or her rehabilitation.

Community Correction Orders (CCO) are new sentencing mechanisms in NSW and will replace CCOs replace community service orders and good behaviour bonds. On the sentencing ladder, a CCO is considered broadly speaking to be a mid-tier penalty falling below a term imprisonment.

Courts will be able to use CCOs to punish offenders for crimes that do not warrant imprisonment or an Intensive Correction Order (ICO), but are too serious to be dealt with by a fine or lower level penalty. The Magistrate or Judge can achieve a punitive purpose by requiring the offender to comply with intensive supervision, and the imposition of unpaid community work.

CCOs will be able to be imposed for a period of up to (3) three years. There is no home detention or electronic monitoring with CCOs.

If you receive a CCO the court will be able to select from the range of conditions, such as;

• Supervision by Community Corrections Officers;
• Community service work; and
• Curfews;

A Community Service Order requires you to undertake work in the community as a means of punishment. During this period, you will be supervised by Community Corrections.

If you breach a CCO, you will be called up to again appear before the court and may be re-sentenced for the original offence. Where a CCO is revoked, a person will be resentenced for the original offence. The sentence on a breach will usually reflect that, by rejection of trust placed in the offender by the court, he or she has shown a lack of remorse and doubt has been cast on his or her rehabilitation

An ICO is the most serious sentence that an offender can serve in the community. Where a person is sentenced to a term of imprisonment of not more than 2 years, the court may make an order directing that the sentence be served by way of ICO.

An Intensive Correctional Order is an Order of imprisonment. The sentence is served by an Intensive Correction Order in the community under the supervision of Corrective Services NSW.

There is no parole set for an ICO, this means that offenders must serve the whole term of the sentence handed down.

Recently there has been the strengthening of ICOs. Supervision will now be mandatory and all offenders serving Intensive Correction Orders (ICOs) will be subject to conditions such as;

• Home detention;
• Electronic monitoring;
• Curfews;
• Community service work;
• Alcohol and/or drug bans and alcohol and drug use testing;
• Place restrictions; and/or
• Non-association requirements;

In addition, conditions of an ICO require an offender;

• To be of good behaviour and not commit any offence;
• To reside only at premises approved by a supervisor;
• To undertake a minimum community service work per month;
• To engage in activities to address the factors associated with offending;
• Be subjected to unannounced home visits;

Offenders will now also be required to participate in programs that target the causes of their behaviour, such as alcohol or drug misuse, or mental health issues.

All offenders on ICOs will also be subject to Corrective Services NSW supervision.

If offenders breach their order, Community Corrections Officers will have authority to impose fast and more certain penalties.

For more serious breaches, offenders will be brought before the State Parole Authority (SPA). The SPA will have the power to send the offenders to prison to serve the remainder of their sentence in custody.

Community safety will be the Court’s paramount consideration when deciding whether an offender should serve up to two years under an ICO or in prison.

ICOs will not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, discharge of a firearm, terrorism offences, organised crime, breaches of serious crime prevention orders, or breaches of public safety orders.

A domestic violence offender will only be able to be sentenced to an ICO if the court is satisfied that the victims can be adequately protected. For example, a domestic violence offender will not be eligible for an ICO with a home detention condition if they will be residing with the victim.

Breaches of Intensive Correction Orders are not dealt with by the court but rather the Commissioner of Corrective Services, and the Parole Authority. Where an offender breaches an Intensive Correction Order, the Commissioner may impose a formal warning, a sanction in the form of more stringent conditions or refer serious breaches to the Parole Authority, which can impose a period of up to 7 days home detention on the offender or revoke the Intensive Correction Order with the consequence that the sentence of imprisonment is served as full-time custody.

In terms of statistics, intensive correction orders (ICOs) were imposed on 1.0% of offenders.

Imprisonment is considered to be a measure of last resort (the parsimony principle). 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.

However, if the above-mentioned penalties are not appropriate and there are no other alternative sentences that the Court can impose you will go to Gaol.

Each offence has limits on the length of imprisonment that the court can impose.

In sentencing an offender to imprisonment, a court will usually impose a ‘non-parole period’, and an additional period in which the offender, once released from prison, will be supervised by community corrections (the parole period). For the non-parole period to be less than three quarters of the head sentence, the court is required to make a finding of special circumstances.

Special circumstances can include:

• Rehabilitation;
• First custodial sentence;
• Hardship to 3^rd parties including family members in exceptional circumstances;
• Ill health, disability or mental illness;
• Drug and alcohol addiction;
• Sentencing for offences committed many years earlier;
• Youth;
• Protective custody;
• Accumulation of individual sentences;
• Self-punishment;
• Long-term offenders; and
• Parity with a co-offender

In terms of statistics full-time imprisonment was imposed on 8.4% of offenders (an increase of 1.5% from 2010).