Fact sheet on non-custodial sentences in New South Wales
- Introduction
Sentencing is the process by which a court determines the punishment for a criminal offender. Sentencing is guided by legislation that differs at the Commonwealth and State levels. New South Wales has its own sentencing legislation.
Whereas in some trials guilt can be found by a jury rather than a judge, sentencing in New South Wales is performed by a judge or magistrate.
- Legislation and purpose
Sentencing is guided by case law and the Crimes (Sentencing Procedure) Act 1999 No 92 (the ‘Act’). Major amendments to the Act came into effect in 2018.
A judge will determine a sentence based on the purposes of (i) adequate punishment for the offender, (ii) general and specific deterrence, (iii) community protection, (iv) offender rehabilitation, (v) offender accountability, (vi) symbolic denouncement of the offence and (vii) to recognise the harm done to the victim and community.
- Non-custodial sentences
As a general rule, sentences are broadly classified into two different categories: custodial (Division 2 of the Act) and non-custodial sentences (Divisions 3, 4 and 4A of the Act).
A custodial sentence is known colloquially as imprisonment, where an offender is ordered to spend a specified amount of time in a correctional facility. A custodial sentence is a last resort in sentencing, as both the Act and case law stipulates that a court must not sentence an offender to imprisonment unless it is satisfied that no other penalty is appropriate.
Non-custodial sentences take three primary forms: the Intensive Correction Order (‘ICO’),[1] the Community Correction Order (‘CCO’) and the Conditional Release Order (‘CRO’). These orders were introduced into the law in 2017 to replace the older and no longer applicable sentences.
- ICOs now replace: home detention, suspended sentences.
- CCOs now replace: community service orders, good behaviour bonds.
- CROs now replace: non-conviction bonds.
The old sentences are no longer available.
The Act also provides for other non-custodial sentences such as dismissal of charges, conviction with no other penalty, deferral of sentencing for rehabilitation, fines and non-association and place restriction orders.
- Summary of non-custodial sentences
- ICO
- What is it?
- An ICO is a sentence where an offender is convicted and sentenced to a custodial sentence, but the court makes an order that the custodial sentence can be served in the community, meaning that, substantively, it is not a custodial sentence, although technically it is a form of imprisonment under the Act.
- When is it available?
- An ICO cannot be made when the sentence is more than two years.
- The offender must be above 18 years of age.
- It is not available for murder, manslaughter, certain sexual offences, offences relating to a serious crime prevention order, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
- For domestic violence incidents, an ICO is not available if the court believes the victims cannot be adequately protected.
- What is it?
- ICO
- Details
- The most important thing a court will consider when deliberating whether to order an ICO is whether the community can be protected.
- The court must first order an assessment report although the court is not bound by it.
- Courts must order that the ICO come with certain conditions.
- Every ICO comes with the standard conditions for the offender to not commit any other offences and report to supervisors.
- A range of additional conditions is also available such as community service, curfews, location monitoring and abstinence from alcohol and drugs, restrictions on association with certain other individuals and restrictions from frequenting certain locations.
- Breaches of the conditions of the ICO may result in the revocation of the ICO and the offender may be arrested to serve the sentence in a correctional facility.
- CCO
- What is it?
- A CCO is a sentence where an offender is ordered to comply with certain conditions while in the community for a certain amount of time after a conviction.
- There is no underlying custodial sentence, unlike the ICO.
- When is it available?
- A CCO cannot exceed three years in duration and if made in a local court, the offender must be present.
- For domestic violence offenders, the order must include a supervisory condition and the court must consider whether the victim can be adequately protected.
- What is it?
- Details
- Every CCO comes with certain conditions.
- Every CCO comes with the standard conditions for the offender to not commit any other offences and present themselves to court if called upon during the duration of the CCO.
- A range of additional conditions are also available such as curfews, community service work (after obtaining an assessment report), participation in a rehabilitation program, abstinence from alcohol and drugs, restrictions on association with certain other individuals, restrictions from frequenting certain locations and supervision.
- Certain conditions cannot be ordered in a CCO, such as location monitoring.
- A court need not first obtain an assessment report unless the court wishes to order community service work.
- Every CCO comes with certain conditions.
- CRO
- What is it?
- A CRO is a sentence where an offender is ordered to comply with certain conditions while in the community for a certain amount of time with or without a conviction.
- The difference between a CCO and a CRO is that a CRO may or may not be ordered after a conviction whereas a CCO requires a conviction. A CCO also cannot be ordered for a fine only offence whereas a CRO can be ordered for a fine only offence.
- CROs can be seen as a form of a warning as it replaces non-conviction bonds.
- When is it available?
- A CRO cannot exceed two years in duration and if made in a local court, the offender must be present.
- It cannot be imposed together with a fine.
- For domestic violence offenders, the order must include a supervisory condition and the court must consider whether the victim can be adequately protected.
- CROs are available for those under the age of 18.
- What is it?
- Details
- Every CRO comes with certain conditions.
- Every CRO comes with the standard conditions for the offender to not commit any other offences and present themselves to court if called upon during the duration of the CRO.
- A range of additional conditions are also available such as participation in a rehabilitation program, abstinence from alcohol and drugs, restrictions on association with certain other individuals, restrictions from frequenting certain locations and supervision.
- Certain conditions cannot be ordered in a CRO, such as electronic monitoring, community service or curfews.Continue next page……
- Every CRO comes with certain conditions.