Penalties

​Reforms to the structure and operation of sentencing options in NSW commenced on 24 September 2018. The following paragraphs explain the sentencing regime that has applied since that date.

Imprisonment

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.

Intensive correction order

A sentence of imprisonment may also be served by intensive correction in the community.

If a court decides to sentence an offender to up to 2 years imprisonment for a single offence or to an aggregate or effective sentence of up to 3 years for multiple offences, it may instead order that the offender serve the sentence in the community by way of an intensive correction order ("ICO"). An ICO is not available for certain serious offences. 

All ICOs have two standard conditions requiring an offender:

• not to commit any offence, and 
• to submit to supervision by a community corrections officer.

An ICO also must, unless there are good reasons not to, 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 provided they are not inconsistent with any other applicable condition. The State Parole Authority (“SPA”) may also impose, vary or revoke conditions that are not standard conditions. 

If an offender fails to comply with any obligation under an ICO, SPA may take a number of actions, including recording the breach, giving a formal warning, imposing conditions, varying or revoking conditions (that are not standard conditions) or revoking the ICO. If SPA revokes the ICO, the offender must serve the balance of the sentence by full-time imprisonment.

The new ICO replaces the old ICO and home detention that were available before 24 September 2018.

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

Fines

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.   

Community correction order

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).

Conviction with no other penalty (section 10A order)

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).

Conditional release order

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).

Deferred sentence

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).

Intervention programs

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. 

Rising of the court

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.