By Paul Gregoire and Ugur Nedim
With the recent rise in climate defenders taking nonviolent direct action in NSW, there are increasing numbers of otherwise law-abiding citizens coming into contact with the criminal justice system, who are most often being sentenced to community-based orders.
The imposition of such penalties can be somewhat confusing, especially as the current community sentencing regime has only been in play since 24 September 2018, and with it, still familiar sentencing terms, such as good behaviour bonds and suspended sentences, were abolished.
Passed in October 2017, the Berejiklian government’s Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 provided an overhaul of the system of community-based sentencing outcomes set out in the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
As NSW attorney general Mark Speakman explained, during his second reading speech, the reforms were needed as the community sentencing options then operating were resulting in large numbers serving their community orders without any supervision, which had been assessed as less effective.
Three main community sentencing options are now available. This article provides an outline of how each apply. And it should be noted that the orders operate like a prison sentence, and it’s not necessary for the subject of one to agree with its imposition in order for it to take effect.
Intensive correction orders
Section 7 of the Act sets out that a court can sentence an offender to an intensive correction order to be served in the community in relation to one or more offences. The most severe community sentencing option, ICOs can apply for up to 2 years for one offence or up to 3 for multiple crimes.
ICOs are still considered custodial in nature although they’re served outside of prison. And section 67 of the Act stipulates that these orders are not available for a range of serious crimes, including murder, manslaughter, prescribed sexual offences, and terrorism-related convictions.
In making an assessment as to whether an ICO is the appropriate sentence, judicial officers should consider community safety, and whether this form of sentencing would be better suited to addressing the risk of reoffending.
ICOs involve mandatory supervision via a community corrections officer, the subject of an order must not reoffend whilst under its imposition, and supervising officers have the authority to deal with any order breaches.
Section 73A of the Act provides judicial officers with a range of further conditions that can be applied to an ICO for part or the whole of its duration, which include home detention, electronic monitoring, a curfew, community service work of up to 750 hours and non-association orders.
The State Parole Authority, under the provisions of section 81A of the Crimes (Administration of Sentences) Act 1999 (NSW), is permitted to impose, vary or revoke conditions pertaining to an ICO, following an application from the community corrections officer or the offender.
On a breach of an ICO, the State Parole Authority can order the suspension of it under section 91 of the Administration Act, with the offender then being taken into custody.
Community correction orders
Of the three community-based sentencing options, community correction orders are the main type that magistrates have been applying in terms of climate defenders.
CCOs are designed to deal with offences too serious to be dealt with via a fine, but don’t warrant an ICO or time in prison.
Section 8 of the Act allows for the imposition of a CCO, which can apply for up to 3 years, and carries the stipulations that the subject must not commit any offence during the order’s imposition, and that they must turn up to court at any time they’re called upon to do so.
There are a number of additional conditions that a court may apply to a particular CCO. Set out in section 89 of the Act, these include a curfew, community service work of up to 500 hours, rehabilitation, alcohol or drug bans, non-association orders, and supervision conditions.
A supervision condition can involve being supervised by a community corrections officer, or a juvenile justice officer if the subject of the order is under 18 years old. A CCO cannot involve home detention, electronic monitoring or a curfew exceeding 12 hours within a 24 hour period.
Conditional release orders
Of the community sentencing options available to the courts these days, conditional release orders are the most lenient. Contained in section 9 of the Act, CROs are used to deal with first time and less serious offences, where there’s no danger posed to the public.
A CRO can be handed down in the place of a fine. However, these two penalties cannot be applied to the same offence. And the imposition of a CRO can happen when a conviction is to be recorded against the name of the offender or in cases where no conviction will apply.
Under subsection 10(1)(b) of the Act, a court can find a person guilty of an offence, without proceeding to conviction, and order that the individual be discharged under the terms of a CRO if the court is satisfied that this is the most expedient action to take.
As with CCOs, a CRO subject shouldn’t reoffend and must turn up in court on request. Additional conditions that can be applied include rehabilitation and treatment, a prohibition on drugs and alcohol, non-association orders, supervision orders and restrictions on visiting certain places.
CROs cannot involve home detention, electronic monitoring, a curfew or community service.
The overhaul of NSW community sentencing options saw the abolishing of suspended sentences, home detention, community services orders and good behaviour bonds, along with the restructuring of ICOs, as prior to the reforms, supervision and engagement with programs was limited.
On introduction, Speakman explained the orders would be better at reducing reoffending compared to the current options that had provided no supervision, support or programs, and he added that penalties such as the new orders had been shown to be more effective than short prison sentences.
Indeed, section 5 of the Act provides that “a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”, and reasons must be given for imposing 6 months or less prison time.