Sentencing & Pleading
Sentencing
1. Sentencing Discount
The discount should generally be assessed in the range of 10-25%. The primary consideration is the timing of the plea [R v Thomson & Houlton at 419].
It is at the Court’s discretion whether to impose a lesser penalty and they may not always do so. The sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Guilty and not guilty pleas are discussed in more detail in the pleadings section.
2. Procedure
A Magistrate may at any time order the issue of an arrest warrant for an accused person [CPA s109].
A pre-sentence report may be obtained prior to hearing, however it is not compulsory. The report is prepared by a government agency, usually the Probation and Parole Service, which outlines the alternatives available to an offender other than imprisonment.
3. Imprisonment
The Court will set a non-parole period, unless the term of imprisonment is under six months [CSPA s44]. The Court may decline to set a non-parole period given the nature of the offence or previous convictions [CSPA s45].
When a court imposes a sentence of imprisonment on an offender for more than one offence the court must impose a separate sentence in relation to each offence, unless imposing an aggregate sentence of imprisonment [CSPA s53].
Sentences can either be served consecutively or concurrently [CSPA s55].
4. Intensive Corrections Orders
5. Home Detention Order
The making of a HDO is subject to the written consent of the persons with whom the offender would likely reside. An assessment of the offender’s suitability for a HDO would need to be undertaken. HDO suitability reports are prepared by the Probation and Parole Service [CSPA s78].
The Court may impose additional conditions on a Home Detention Order relating to employment or performing community service work [CSPA s82].
HDOs are not available for certain offences
- Murder, attempted murder or manslaughter
- Sexual assault
- Sexual offences involving children
- Armed robbery
- Any offence involving use of a firearm
- Assault occasioning actual bodily harm or any more serious assault Certain domestic violence offences
- Certain drug offences involving commercial quantities
[CSPA s76]
HDOs are not available for offenders who have previously been convicted of:
- Murder, attempted murder or manslaughter
- Sexual assault
- Sexual offences involving children
- Certain domestic violence offences
- Or who is subject to an AVO, being an order made for the protection of the person with whom it is likely the offender would reside
[CSPA s77]
A Court may revoke an HDO if:
- The offender fails to comply with the order;
- The offender fails to appear before the parole board; or
- A person with whom the offender resides withdraws consent
Once an HDO is revoked the offender must serve the rest of their sentence in full time custody. The offender can apply for a reinstatement where at least 3 months of the offender’s sentence has been served in full-time custody.
6. Compulsory Drug Treatment Program
There are two drug court programs operating in NSW; the Western Sydney Drug Court and the Hunter Drug Court. To be eligible for a Drug Court program there is a requirement that an applicant to the Court be over 18 years of age and have no mental condition that would prohibit participation in the program. Further, the defendant must be dependant on the use of illicit drugs, be pleading guilty and highly likely to be given a prison sentence.
7. Intervention programs
An offender needs to be referred by the court for an assessment of their suitability to participate in an intervention program [s100O].
An order may be made if the court is satisfied that it would reduce the likelihood of the person reoffending. Not all offenders will qualify for a participation in a program [CSPA s10].
If the Court suspects the offender has failed to comply with a program intervention order the court may call on the offender to appear before it. If the Court is satisfied that the Offender has failed to comply with the program they may revoke the order [CSPR s100R].
If the Court revokes an intervention order they may convict and sentence the offender for the original offence [100S].
8. Community Service Order
A new community service order cannot be made in addition to a previous order if the sum of the hours exceeds 500 [CSPA s87].
A Court may impose additional conditions on a community service order including a fine, compensation, participation in development programs and testing for alcohol or drug use [CSPA s90].
A pre-sentence report will need to be obtained from the Probation and Parole Service if an offender is to be sentenced to a community service order. There needs to be arrangements existing in the area in which the offender resides to perform community service work [CSPA s86].
9. Good Behaviour Bond
Alternately, a Court may impose a criminal conviction and sentence the offender to a good behaviour bond for a specified term not to exceed five years [CSPA s9].
Conditions of good behaviour bonds:
- Must contain a condition that the offender will appear before the court if called on at any time during the term of the bond
- Must contain a condition that during the term of the bond the person will be of good behaviour
- May contain a condition to perform community service work
- May contain a condition to pay a fine or compensation
- May contain a condition to participate in an intervention program, undergo counselling or submit to medical treatme
[CSPA s95]
If the Court suspects that an offender may have failed to comply with the conditions of a good behaviour bond the Court may call on the offender to appear. If the offender fails to appear the court may issue a warrant for the offender’s arrest. If the Court is satisfied that the offender has failed to comply with the conditions of the bond a court may vary the conditions of the bond or otherwise revoke it [CSPA s98].
If a court revokes a good behaviour bond they may:
- Re-sentence the offender;
- Convict and sentence the offender; or
- Make an order directing that the sentence of imprisonment to which the bond relates be served by way of an intensive correction order or home detention.
[CSPA s99]
10. Fines
Fines can otherwise be imposed as an additional or alternative penalty to a sentence including imprisonment for any indictable offence [CSPA s15].
One penalty unit accounts for $110 i.e. a fine of 50 penalty units will amount to $5,500 [CSPA s17].
11. Suspended Sentence
If an offender breaches a suspended sentence order the Magistrate must revoke the order.
12. Dismissal of Charges
13. Non-Association and Place Restriction Orders
A Place restriction order prohibits an offender from frequenting or visiting a specified place or district for a specified term. Such an order may be limited to certain times and circumstances [CSPA s17A].
Contravention of a non-association or place restriction order will result in a maximum penalty of 10 penalty units or six months imprisonment, or both [CSPA s100E].
A Local Court may vary or revoke an order, regardless of whether the order was made by the Local Court or another Court [CSPA s100G].
14. Orders pursuant to Mental Health Act 1990
Pleading
15. Pleading Guilty
Depending on the charge, an accused person served with a court attendance notice may lodge with the Registrar notice in writing that they will plead guilty or not guilty. If the notice is lodged no later than 7 days before the person is required to attend court then they are not required to attend. This does not apply to a person who has been granted or refused bail [Criminal Procedure Act 1986 s182].
A guilty plea may be accompanied by additional written material detailing mitigating factors [CPA s182].
If attending court, the Court will state the substance of the offence and ask the accused to enter a plea. An accused person may at any time during committal proceedings plead guilty to an offence [CPA s99].
A guilty plea may either be accepted or rejected [CPA s100].
16. Rejection of a Guilty Plea
A judge of the District or Supreme Court may order committal proceedings be continued before a Magistrate in respect of a person who has plead guilty if:
a) It appears that the facts represented in the court attendance notice do not support the offence to which the person plead guilty;
b) If the prosecutor requests the order be made; or
c) For any other reason the Judge thinks fit to do so.
[CPA s104]
On the resumption of committal proceedings, the proceedings continue as if the person had plead not guilty [CPA s101].
Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in proceedings [CPA s99].
The Attorney General or Director of Public Prosecutions may alternately direct that no further action be taken in respect of an offence, at their discretion [CPA s107].
17. Pleading Not Guilty
If an accused person pleads not guilty, they are taken to have committed themselves for trial [CPA s154].
A court is not permitted to penalise an offender for pleading not guilty if the person is ultimately found guilty of the offence. The imposition
of a penalty more serious than would otherwise be imposed is not allowed [Siganto v The Queen at 663].
18. Refusal to Plead
19. Guilty plea to Offence Not charged
The Crown may elect to accept the plea of guilty or proceed on the original charge [CPA s153].
20. Guilty Plea Where Certain Facts Disputed
21. Sentencing Discount
The discount should generally be assessed in the range of 10-25%. The primary consideration is the timing of the plea [R v Thomson & Houlton at 419] When passing sentence for an offender who has plead guilty the court must take into account:
- The fact that the offender has plead guilty; and
- When the offender plead guilty or indicated an intention to plead guilty; and
- The circumstances in which the offender indicated an intention to plead guilty.
[Crimes Sentencing Procedure Act 1999 s22]
It is at the Court’s discretion whether to impose a lesser penalty and they may not always do so. The sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Circumstances the Court may take into account include the number and types of charges, the measure of remorse evident and the offender’s assistance to authorities.
22. Changing Your Plea
If the accused is brought before a higher court after having plead guilty and changes their plea to not guilty the Judge is to commit them for trial [CPA s106].
23. Setting Aside a Guilty Plea
- The appellant did not appreciate the nature of the charge to which the plea was entered
- The plea was not free and voluntary
- The plea was not attributable to a genuine consciousness of guilt
- The plea was induced by threats or other impropriety.
[Johnston v R]
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