Wednesday, 8 November 2017

Sentencing Options

For the majority of people, their first exposure to the Criminal justice system occurs when they are charged with offences that are dealt with at the Local Court. This is because most offences committed each year are summary in nature, and as such are not serious enough to warrant appearances before the District Courts or the Supreme Court. Therefore, it is important that defendants (i.e. those charged with an offence) understand the broad range of penalties that are available to Magistrates at the Local Courts, when they sentence someone on the basis of various sentencing principles. The sentencing options available to the Local Courts Magistrates are:

Fines
Fines are the most commonly imposed in addition to Good Behaviour Bonds. The defendant’s current financial circumstances and other relevant considerations may be taken into account by the Local Court when determining the size of the fine. Once a defendant has been ordered to pay a fine, they are given a maximum of 28 days to pay the amount in full, but the court registry can extend this if the offender is not able to pay within the time period. However, if a defendant refuses to pay a court-ordered fine, it may possibly result in the seizure of assets, wage deductions, an order of community service, or in relation to traffic fines, suspension or cancellation of their driver’s licence or vehicle registration.

Good Bonds
These bonds obligate defendants to be of good behaviour, and the court may also impose further conditions that must be complied with for the duration of the bond. These include a condition that the defendant be supervised by an officer of the Community Corrections Office, for as long as the Service deems it appropriate. The court may also include a condition that defendants attend counselling to help treat their alcohol or drug-abuse problem, or defendants may be ordered to reside at a rehabilitation centre to receive more intensive treatment.

There are a wide variety of bonds available in the Local Court, such as the bond stated in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows Magistrates to direct offenders to enter into a good behaviour bond for less than five years, after convicting them of an offence. If the conditions of the section 9 bond are breached or the defendant commits another offence, then the Magistrate may cancel the bond and impose a sentence. There are also section 11 bonds, which allow Magistrates to find an offender guilty of an offence, but suspend the sentence for a period of 12 months, in order to assess their capacity and prospects for rehabilitation, to demonstrate that rehabilitation has taken place or for any other reason the court considers appropriate in the circumstances.

Dismissal and conditional discharge under Section 10
Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nonetheless discharge that person without proceeding to conviction. Because there is no conviction recorded, a major benefit of section 10 is that it means that the defendant will not have a criminal record. The court will take into account the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any other extenuating circumstances when determining whether to grant an outright dismissal.

Intensive Correction Orders (ICOs)
ICOs are an alternative to a sentence of imprisonment that can be made when a court is satisfied that no sentence other than full time imprisonment is appropriate for an offender, and that the sentence is likely to be for a period of 2 years or less.

Instead of entering full time custody, offenders subject to ICOs are managed in the community by the Community Corrections division of Corrective Services NSW. The two major components of ICOs are:
· supervision by a Community Corrections Officer, whereby the offender's behaviour is monitored and their rehabilitative needs are addressed; and
· community service work, whereby the offender undertakes 32 hours of unpaid work in the community each month.

Suspended sentences under Section 12
A Local Court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court can then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed- it is only the execution of the sentence that is suspended. However, suspended sentences are not available to offenders where they are also subject to another sentence of imprisonment. Also, if the Local Court decides to later revoke the sentence for any reason, it may choose to re-impose the original sentence of imprisonment on the offender, which can be served full-time, part-time or through home-detention. The court is obligated to revoke the order if there is a breach of the bond under section 98(3), unless it is satisfied the offender’s failure to comply with the conditions of the bond was “trivial in nature”, or the offender had a valid reason.

Full-time Imprisonment /Home Detention
Full-time imprisonment should always be the sentence of last resort for courts, with the maximum available term of imprisonment that can be sentenced in Local Courts being two years. Home detention may also be an option.

If you have questions on sentencing options or anything else, please contact any of our Solicitors at Matthews Williams.

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Sentencing Options

For the majority of people, their first exposure to the Criminal justice system occurs when they are charged with offences that are dealt w...