On 24 October 2017, the NSW Parliament assented to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (the Act) which, as the name suggests, amends the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) in respect of the sentencing options available to courts in New South Wales.
The Act abolishes the following sentencing options in their present form:
- Home detention under section 6 of the Sentencing Act,
- Intensive correction orders under section 7,
- Community service orders under section 8,
- Good behaviour bonds with criminal convictions under section 9,
- Good behaviour bonds without convictions under section 10, and
- Suspended prison sentences under section 12.
The Act creates the following alternatives to imprisonment in their place:
- Conditional release orders (which will replace existing non-conviction good behaviour bonds),
- Community correction orders (which will replace other good behaviour bonds and community service orders), and
- Intensive correction orders (which will replace suspended sentences, home detention orders and existing ICOs).
This blog looks at ‘conditional release orders’, or CROs.
Conditional Release Orders
CROs will replace existing ‘section 10 good behaviour bonds’, which are currently contained in section 10(1)(b) of the Sentencing Act.
The requirements for CROs will be contained in section 9 of the amended Sentencing Act.
Section 10(1)(b) of the current Sentencing Act allows a court to discharge an offender on a good behaviour bond, without proceedings to a criminal conviction.
The forthcoming section 9(1)(b) will similarly allow those who plead guilty or are found guilty of a criminal offence to avoid a conviction by entering into a good behaviour bond. And although the requirements for CROs are outlined in the new section 9, the order will still be made under section 10(1)(b) – as is made clear in the new section 9(1)(b) which refers to the court “mak[ing] an order under section 10(1)(b)).
The current section 10(2)(b) which stipulates that a bond without conviction can be imposed if the court considers it ‘expedient’ to do so will also remain unchanged, except for the words ‘good behaviour bond’ being replaced by ‘conditional release order’.
Significantly, the current section 10(1)(a) – which allows for the dismissal of charges without a conviction or bond – will remain in place.
The new section 95(2) will set the maximum term for a CRO at two years, which is the same as the maximum duration of existing ‘section 10 bonds’.
The new section will read as follows:
“9 Conditional release orders
(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if:
(a) the court proceeds to conviction, or
(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).
(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) whether the offence is of a trivial nature,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.”
Conditions of CROs
Under the new section 98(2) the standard (or mandatory) conditions of CROs will be that the defendant must:
- Not commit an offence, and
- Appear before the court if called on to do so.
This essentially reflects existing provisions.
Section 99(2) 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,
- Come under the supervision of community corrections officers or, in the case of young persons, juvenile justice officers.
Section 99A will allow courts to revoke or vary the additional conditions of a CRO, or impose further additional conditions, upon application by the defendant or their community corrections officer or juvenile justice officer, provided the changes are ‘not inconsistent’ with the standard conditions and any additional conditions already imposed.
Section 99(4) will permit courts to limit the period during which an additional condition is effective; so, for example, a CRO could be two years in length while one of its additional conditions expires after six months.
Orders that cannot be made
The following conditions will be incapable of attaching to CROs:
- Fines, see subsection 9(3),
- Home detention orders, section 99(3)(a)
- Electronic monitoring conditions, section 99(3)(b)
- Curfew conditions, section 99(3)(c), and
- Community service work conditions, section 99(3)(d).
Section 25 will prohibit courts from imposing CROs where the defendant is not present.
More of the same
The continuation of the prohibition against imposing fines with non-conviction bonds may be seen as a lost opportunity.
Take the example of drink driving – existing laws mean drivers either receive a ‘non conviction order’ and thereby avoid a licence disqualification, a conviction and a fine altogether, or receive a conviction on their criminal history, are also disqualified for at least the minimum period and are also almost invariably fined as well.
This can be seen as an ‘all or nothing’ regime in so far as there no penalty ‘in between’, where a driver can receive a ‘non conviction order’ and be ordered to pay a fine, which may be appropriate if a conviction and disqualification are too harsh, but a non-conviction bond by itself too lenient.
The current regime can lead to inconsistent sentencing outcomes; whereby drivers in very similar situations are either taken off the road for a crippling period of time, convicted and fined, or receive a non-conviction bond without anything else.
By contrast in Queensland, drivers may avoid a conviction but have to pay fines which take into account their financial circumstances – an option which allows magistrates to impose some tangible penalty in addition to a bond, without having to place a person’s career in jeopardy by taking away their ability to drive and recording a conviction.
It should also be noted that the much-touted additional condition regarding rehabilitation is already expressly available under section 10(1)(c), which enables a defendant to be discharged on condition that he or she participates in an ‘intervention plan’.
The NSW Department of Justice claims the changes clarify what can and can’t be done under non-conviction bonds, offer greater flexibility to magistrates and judges, and will result in more defendants coming under formal supervision, which may result in lower rates of re-offending.
The new laws will come into effect on a day to be appointed by proclamation, which is expected to be in September this year.
The impact (if any) remains to be seen.