If a guilty plea is entered or a person is found guilty of an offence, the courts have several sentencing options at their disposal.
Potential sentences or orders that a court may impose can be classified as non-custodial and custodial sentences.
The following are Non-custodial sentences:
Dismissal of charge
Section 10 of the Crimes (sentencing procedure) Act 1999, allows the court to make a finding of guilt but not record a conviction. A section 10 dismissal of a charge can be a dismissal with no other penalty imposed or it can be a dismissal on the condition that the person enter into a good behaviour bond.
In deciding whether or not to make an order under section 10, the court is required to consider:
- the person’s character, antecedents, age, health and mental condition,
- the trivial nature of the offence,
- the extenuating circumstances in which the offence was committed,
- any other matter that the court thinks proper to consider.
The relevant provision is section 6(1) of the Crimes (Sentencing Procedure) Act 1999. Some offences are fine only offences. However, there are other offences that carry a fine as well as other sentencing options. For example, a fine as well as a good behaviour bond.
In determining a fine, the magistrate will consider:
- the maximum fine applicable;
- the level of seriousness of the offence; and
- The defendant’s means to pay: Fines Act 1996 (NSW) s 6.
Good Behaviour Bond
A good behaviour bond imposes restrictions on a person’s conduct for a specified length of time. The relevant provision is section 9(1) of the Crime (Sentencing Procedure) Act 1999. A good behaviour bond is not to exceed five years. The bond may have a number of conditions attached. For example, the person must:
- appear before the court if required to do so at any time during the period of the bond; and
- be of good behaviour.
Some conditions imposed are at the discretion of the magistrate. The conditions must be reasonable and may include the requirement to:
- accept medical treatment;
- undertake counselling; or
- partake in an intervention program.
If a person breaches a good behaviour bond, they will be required to come back to court and be re-sentenced.
Community service order
Section 8(1) of the Crime (Sentencing Procedure) Act 1999 is the relevant provision that relates to a community service order. A community service order entails of a person to undertake work in the community for a specified number of hours. The court can impose a maximum of 500 hours of community service. Prior to a community service order being made, a person has to be assessed and deemed suitable by community corrections.
If a person breaches a community service order a person will have to reappear before the court and be re-sentenced.
A suspended sentence, held in section 12(1) of the Crimes (Sentencing Procedure) Act 1999, is a term of imprisonment which is suspended subject to a person entering into a bond to be of good behaviour to serve such sentence of imprisonment within the community. A suspended will only be imposed if no other non-custodial sentence (all of the above) are deemed suitable and if the sentence of imprisonment is two years or less.
If a person breaches a suspended sentence order they will have to reappear before the court and be re-sentenced.
The remaining are Custodial Sentences:
Where the court has sentenced a person for no more than 18 months, an order can be made to serve the sentence by way of home detention. The relevant provision is section 7(1) of the Crimes (Sentencing Procedure) Act 1999. Before an order for home detention is considered, the person must be assessed by corrective services to be deemed suitable for such an order to be made.
The matters that must specifically be addressed during the assessment are:
- the criminal record and likelihood of re-offending;
- drug dependency; and
- the likelihood of the offender committing a serious domestic violence offence
Intensive Corrective Order
In accordance with section 7 of the Crimes (Sentencing Procedure) Act 1999, where a court has determined to sentence a person for no more than two years, he court may order that the person serves the sentence by way of intensive correction within the community.
An Intensive Correctional Order requires strict supervision by Corrective Services NSW and imposes both mandatory and additional restrictions upon a person’s movements and behaviour during the course of the Intensive Correctional Order.
In determining whether or not a sentence of imprisonment is to be served by way of an Intensive Corrective Order, court must consider an assessment report on the offender. The matters to be addressed are the same as that of a Home Detention Order.
Under section 5(1) of the Crimes (Sentencing Procedure) Act 1999, if the court is satisfied that no other possible alternative exists, then the court will sentence the person to a term of imprisonment. Each particular offence carries a limit as to the length of imprisonment that can be imposed by the court.
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