Penalties

Imprisonment is the sentence of last resort. A court should only sentence an offender to imprisonment if it is satisfied that none of the above penalties are appropriate. A sentence of imprisonment may be served in a correctional centre, such as a prison or, if the sentence is imposed in the Drug Court, a compulsory drug treatment centre.

In some cases, the court may decide that a sentence of imprisonment can be served in the community, instead of in full-time custody. This is known as an intensive correction order ('ICO'). 

A court can only impose an ICO if:

• the offender is over the age of 18
• the court decides that imprisonment is an appropriate penalty
• the sentence is 2 years’ imprisonment or less for a single offence, or 3 years or less for multiple offences
• the court is satisfied of the community safety requirements.

An ICO commences on the day it is imposed.

The court is responsible for imposing ICOs, but the State Parole Authority ('SPA') is responsible for dealing with offenders that breach an order.

Community Corrections supervises offenders while they are serving an ICO in the community.

Offence exclusions

An ICO cannot be imposed for certain serious offences. These are:

• murder or manslaughter
• some sexual offences
• terrorism offences
• contravening a serious crime prevention order
• contravening a public safety order
• certain firearm offences.

An ICO is also unavailable if the offender attempted or conspired to commit any of those offences, or if they incited someone else to do so.

Assessment of suitability for an ICO

The safety of the community is the most important factor a court must consider when deciding whether to impose an ICO. The court must assess whether an ICO is more likely to address the offender’s risk of reoffending than a sentence of full-time custody.

In some cases, community safety may be best achieved by a term of imprisonment served in the community, rather than in full-time custody. Courts have recognised that some offenders may be less likely to reoffend when they have access to supervised treatment and rehabilitation programs in the community.

To decide whether an offender is suitable for an ICO, the court can consider any information it considers relevant, such as available assessment reports, or evidence from a Community Corrections officer.

Conditions

All ICOs have conditions that the offender must abide by. Every order has the conditions that the offender:

• not commit any offence, and
• submit to supervision by a Community Corrections officer.

Unless there are good reasons, an ICO must also include at least one of the following conditions:

• home detention
• electronic monitoring
• a curfew
• community service work of no more than 750 hours
• a requirement to participate in a rehabilitation program or receive treatment
• a requirement to abstain from alcohol or drugs or both
• a requirement not to associate with particular people, or
• a requirement not to go to a particular place or area.

The court may also impose further conditions at the time of sentencing, if necessary.

Breaches

If an offender breaches any of the conditions of their ICO, the SPA can decide to:

• record the breach
• give a formal warning
• impose more conditions
• change or remove, or
• revoke the ICO.

If the SPA revokes the ICO, the offender must serve the rest of the sentence in full-time imprisonment. 

The provisions relating to ICOs may be found in Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court can order the offender to pay a fine, which will be expressed as a number of 'penalty units'. A penalty unit is currently equal to $110. An offender might be fined as well as receiving another type of sentence.   

A court may impose a community correction order ('CCO') instead of a sentence of imprisonment. The maximum term of a CCO is 3 years.

All CCOs have two standard conditions requiring an offender:

• not to commit any offence, and
• to appear before the court if called on to do so at any time during the CCO’s term.

The court may, at the time of sentencing or at any time on the application of a community corrections officer, impose one or more of the following conditions:

• a requirement to submit to supervision by a community corrections officer
• a curfew (not exceeding 12 hours a day)
• community service work of no more than 500 hours
• a requirement to participate in a rehabilitation program or receive treatment
• a requirement to abstain from alcohol or drugs or both
• a requirement not to associate with particular people, or
• a requirement not to go to a particular place or area.
  

The court may also impose further conditions provided they are not inconsistent with any other applicable condition and are not home detention, electronic monitoring or a curfew exceeding 12 hours a day. The court may, at any time after sentencing, impose, vary or revoke conditions that are not standard conditions.

If an offender fails to comply with any condition under a CCO, the court may call on the offender to appear before it.

The court may take a number of actions, including taking no action, imposing conditions, varying or revoking conditions (that are not standard conditions) or revoking the CCO. If the court revokes the CCO, the court may re-sentence the offender.

The CCO replaces the community service order and the good behaviour bond available before 24 September 2018.

The provisions about CCOs may be found in Part 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

If an offence is not trivial enough to be dismissed using a section 10 order, but there are other good reasons for not imposing a penalty, the court can convict an offender without imposing any penalty. This means the offender will get a criminal record but will not be sentenced.

See s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

A court may impose a conditional release order ('CRO') with or without recording a conviction.

When it records a conviction for an offence, a court may impose a CRO instead of a sentence of imprisonment or a fine (or both).

A court may also impose a CRO when it finds a person guilty of an offence but does not record a conviction.

The maximum term of a CRO is 2 years.

All CROs have two standard conditions requiring an offender:

• not to commit any offence, and
• to appear before the court if called on to do so at any time during the CRO’s term.

The court may, at the time of sentencing or at any time on the application of a community corrections officer, impose one or more of the following conditions:

• a requirement to submit to supervision by a community corrections officer
• a requirement to participate in a rehabilitation program or receive treatment
• a requirement to abstain from alcohol or drugs or both
• a requirement not to associate with particular people, or
• a requirement not to go to a particular place or area.
  

The court may also impose further conditions provided they are not inconsistent with any other applicable condition and are not home detention, electronic monitoring, a curfew, or community service work. The court may, at any time after sentencing, impose, vary or revoke conditions that are not standard conditions.

If an offender fails to comply with any condition under a CRO, the court may call on the offender to appear before it.

The court may take a number of actions, including taking no action, imposing conditions, varying or revoking conditions (that are not standard conditions) or revoking the CRO. If the court revokes the CRO, the court may re-sentence the offender.

The CRO replaces the conditional discharge bond or order (s 10 bond) that was available before 24 September 2018.

The provisions about CROs may be found in Part 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court that finds an offender guilty can decide to adjourn a case for up to 12 months before it decides how to sentence the offender. During the 12 months, the offender would be released on bail. The purpose of deferring a sentence is usually so that an offender can be assessed for rehabilitation and take part in a rehabilitation or intervention program, but the court can defer sentencing for any purpose it considers appropriate. The court will take the offenders progress during the adjournment into account when it sentences the offender.

See s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

A number of sentencing options above require the offender to agree to participate in an 'intervention program'.

There are 3 intervention programs in NSW.  They are:

• The circle sentencing intervention program: This program relates to Aboriginal offenders and includes members of Aboriginal communities in the sentencing process.
• The forum sentencing intervention program: This program involves a meeting between participants such as the offender, the victim, support people, the police and a facilitator, where the participants agree to an intervention plan that is then sent to the court for approval.  If the court approves the plan, it must be completed by the offender.  Examples of things that might be included in an intervention plan are a requirement for the offender to apologise, to make reparations to the victim or the community, or to participate in rehabilitation or education.
• The traffic offender intervention program: This program is designed to provide community based road safety education to traffic offenders. 

This type of penalty is not mentioned in legislation, but it is available to courts in NSW. It is a way of the court saying that the offender is convicted, but no sentence is imposed. The court orders the defendant to 'remain in court until the next adjournment' - that is, until the next break in the sittings of the court that day, which may mean the offender is only detained for a few minutes. This order is reserved for the least serious of offences.