Evidence establishes that community supervision and programs are much more effective at changing offenders behaviour to reduce reoffending. In fact, sending offenders to prison for less than 2 years have not been effective in trying to change behaviour in offenders generally.

A number of significant changes in NSW penalties have been proposed, and it will take effect in 2018.

The new penalties give greater power to people who are not Magistrates or Judges. It also allows Magistrates and Judges to impose more flexible penalties, which are designed to effectively help address the cause(s) of the offenders behaviour, and increase community safety at the same time.

The emphasis in the new penalties are on community based supervision, with a focus on reducing reoffending for the purposes of community safety.

The Attorney General, Mark Speakmen, has justified the big changes to the criminal justice laws in NSW with that emphasis and focus in mind.


The old Sentencing Penalties

Before the new sentencing changes, the following were the variety of options of punishment which Courts could give to an offender found guilty of a criminal offence:

  • Full time prison
  • Home detention
  • Intensive Corrections Order (ICO)
  • Suspended Sentence
  • Community Service Order
  • Section 9 Good Behaviour Bond
  • Section 10 Non Conviction

See Sydney Criminal Lawyers page for more information on those penalties.

The New Sentencing Penalties

The new penalties now available to Courts have a focus on strengthening community based sentences.

The new sentencing laws are now more simplified, more flexibility, for Magistrates and Judges to give a more customised and tailored penalty in order to effectively address the individual offender’s needs.

This allows greater ability to focus on rehabilitation, in an effort to reduce re-offending (and increase community safety).

Apart from the option of Full Time Imprisonment as a form of the most serious penalty available, below are the new penalties now available to Courts to give to offenders.

New Intensive Correction Order

The old penalties of home detention, suspended sentence and existing Intensive Correction Orders (ICO) will now be abolished. they will now be replaced with a new and improved Intensive Correction Order (ICO).

The new ICO is a term of imprisonment that allows you to serve the sentence in the community, as an alternative to full time custody. It still carries a criminal conviction.

The old penalty of a suspended sentence was an imprisonment term, effectively wholly suspended on the condition of entering into a good behaviour bond. The new ICO penalty replaces the suspended sentence while incorporating it in other ways.

Why is the Suspended Sentence Being Abolished?

The old suspended sentence simply wasn’t achieving results. A study in 2014 by BOSCAR found that suspended sentences have increased, not decreased, the prison population in NSW.

Research from the Law Reform Commission and The Bereau of Crime Statistics and Research have found, that suspended sentences are not achieving results or compelling offenders to address their offending conduct.

What’s New About the New ICO?

Before an ICO is ordered as a penalty, a report is produced to the court assessing the offender’s risk of reoffending. The Magistrate or Judge will then consider if the new ICO can appropriately address the risk of reoffending. If it cannot, the offender will likely be sent straight to full time prison.

The new ICO will have the following new features inherent in it, making it a much more stricter and flexible penalty than the older ICO penalty:

  • There will be mandatory supervision of the offender by a community correction officer for a set period of time. Those officers, will have clearer authority in the event of a breach.
  • All offenders will be subject to strict conditions, which include, curfews and restrictions of where you reside and who you cannot associate with, community service work, electronic monitoring, home detention, and alcohol and drug bans.
  • Participation in programs focusing on the cause(s) of the offending behaviour, which can include drug and alcohol counselling or programs to address drug and alcohol abuse.

Circumstances the New ICO Will Not be Available

The new ICO will not be available if the following circumstances apply to you, often then resulting in a full time custodial penalty being imposed:

  • Where you are convicted of murder, manslaughter, sexual assault, sexual offence against children, discharging of a firearm, terrorism, organised crime, breach of serious crime prevention orders, or breach of public safety orders.
  • Where the term of imprisonment the court intends to give exceeds 2 years (or 3 years if it involves more than 1 offence).

An ICO will not be available where you have been convicted of a domestic violence offence, where the court finds the victim, or others residing with you, will not be adequately protected. If this is the case, full time custody is the next likely option of punishment.

What happens if you breach the new ICO?

The community corrections officer now have clearer authority to do any one of the following, if there is a minor breach of the new ICO:

  • Record the non-compliance with no further action;
  • Record the non-compliance with an informal or formal warning;
  • Record the non-compliance with a reasonable direction about the non-compliant conduct;
  • Record the non-compliance and Impose a curfew i.e. up to 30 days home detention.

In the event the breach of the ICO is more serious, the Community Corrections Officer or Commissioner, may refer the breach to the State Parole Authority (SPA).

The SPA can do any one of the following, in the event of a serious breach of the ICO:

  • Record the breach with no further action;
  • Record the breach with a formal warning;
  • Record the breach with a change of conditions of the ICO, including, home detention with conditions to submit to an electronic monitoring device;
  • Record the breach and revoke the ICO order.

What Happens if the ICO is Revoked by the State Parole Authority?

In the event the SPA revokes the new ICO order due to a breach, the penalty or term of sentence you received for the ICO will then have to be served as full-time custody.

Community Correction Order (CCO)

The old community service order and section 9 good behaviour bonds are now abolished and replaced with a penalty called Community Correction Order (CCO).

The CCO is a new penalty option that gives the Court power in order to better tailor the penalty to the offender. It purports to do this by imposing a variety of conditions tailored to address the offence and individual offender.

Getting the new CCO still results in a criminal conviction against your name.

A CCO is another community based sentencing option, other than going to prison.

What’s New About the New CCO?

Under the new CCO order, the Court can impose conditions. These conditions include supervision by a community corrections officer, community service work, non-association, rehabilitation or treatment, abstention from drugs and alcohol, place restrictions and curfews (not exceeding 12 hours in a 24 hour period).

A Court will be able to impose those conditions with the CCO order for a period of up to 3 years. This gives the Court a longer period to monitor offenders, focusing on supervision and reduction in reoffending.

Circumstances a CCO will be Appropriate

A CCO is a new penalty option available for the Court to impose on an offender where:

  • The purposes of punishment can be addressed, and where the offending conduct isn’t so serious that it warrants full time prison, or an ICO; and
  • The other penalty option below the new CCO penalty, namely, Conditional Release Order (CRO) (previously known as a s10 non conviction), are too lenient for the offence.

The new CCO penalty is more likely to be an appropriate option of punishment to offenders guilty of common assault, theft, possession of prohibited drugs, or damage or destroy property offences.

What Happens if You Breach the New CCO Order?

The Court may do any one of the following, in the event of a breach of a CCO condition:

  • Take no further action;
  • Change the conditions of the CCO order;
  • Impose new conditions on the CCO order;
  • Revoke the CCO order

What Happens if a CCO is Revoked by the Court?

Upon revocation of the CCO by the Court, the Court may then re-sentence you for the offence(s). The court may then choose any of the penalty options again, and often considers a harsher punishment.

Conditional Release Orders

The previously known section 10 non conviction is now abolished, and replaced with a Conditional Release Order (CRO). It is a form of punishment that can result in completely avoiding a criminal conviction against your name.

What’s New About the New CRO?

The new CRO allows the court to give any one of the following kinds of punishment, if it considers it appropriate:

  1. Without a criminal conviction, the court can impose any one or more of the following conditions:
    • Supervision;
    • Non-association;
    • Place restrictions;
    • Abstention from drug and alcohol
    • Rehabilitation or treatment
  1. With a criminal conviction, the court can impose the same above noted conditions.

The maximum period the Court can place an offender on a CRO is up to 2 years. The conditions on a CRO are intended to be less strict than the CCO or ICO conditions.

The new CRO gives Magistrates and Judges more flexibility in imposing a greater variety of conditions better catered for the individual offender.

Circumstances When a CRO Will be Appropriate

The Court will first determine if a case is more appropriate to be given a CRO. It will then consider appropriate conditions to impose, and whether that CRO ought to be with or without a criminal conviction.

A CRO would be more appropriate in the following circumstances:

  • First time offenders involving less serious offences
  • Where the offender is unlikely to reoffend
  • Driving while disqualified, drink driving and low level drug possession offences are the typical candidates more likely to be considered for a CRO

What Happens if You Breach the New CRO?

In the event you breach a CRO, the Court may do any one of the following:

  • Take no further action;
  • Change the conditions of the CCO order;
  • Impose new conditions on the CCO order;
  • Revoke the CCO order.

What Happens if the CRO is Revoked by the Court?

Upon a revocation of a CRO by the court, the Court will essentially re-open your case and re-sentence you for the offence(s). If this occurs, the court will usually consider a heavier penalty.

In the event you received a CRO without a conviction, the court may consider a CRO with further conditions, with a conviction (this depends on the seriousness of the breach).

Published on 25/12/2017

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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