Going to Court 4 - What’s the Worst that can Happen? Penalties

So you’ve pleaded ‘guilty’ or been found ‘guilty’, and are about to be sentenced. What can you expect?

1. General Sentencing principles
The Crimes (Sentencing Procedure) Act 1999 (or ‘the Act’) sets down the rules and procedures for sentencing offenders in NSW. Section 21A of the Act says that when sentencing a convicted person (ie a ‘guilty’ person) the Judge must take into account the following things:

1. The ‘nature and circumstances of the case’ (ss(2)(a)):more serious offences will, of course, be punished more severely;

2. If the offence was one of many such offences committed by the offender, the ‘that course of conduct’ (ss(2)(b)): eg if an Accused committed several serious armed robberies over a short period of time, the Defence would argue that any prison sentence should cover all of the offences. This could result in a shorter prison sentence than if each offence were punished separately;

3. The ‘personal circumstances of any victim’ (ss(2)(c)): crimes against very old, very young or disabled people etc will be treated more seriously;

4. Any ‘injury, loss or damage resulting from the offence’ (ss(2)(d)): the offence will, of course, be considered more serious id serious injury, loss or damage has occurred;

5. The ‘degree to which the offender has shown contrition’ (ss(2)(e)); in other words, how genuinely sorry the offender is. Such ‘contrition’ may be shown by paying back stolen moneys, returning stolen property or apologising to and helping an injured victim;

6. The ‘need to deter the offender or other persons from committing an offence of the same or similar nature’ (ss(2)(f)): in other words, to send a message to the offender (often called ‘specific deterrence’) and to the community generally (called ‘general deterrence’) that such crimes will be severely punished, and thereby deterring (or putting-off, discouraging, scaring) people from engaging in such behaviour. Judges often consider this principle to be very important.

7. The ‘need to protect the community from the offender’ (often called ‘protection’) (ss(2)(g): the desire to keep particularly violent or serious offenders ‘off the streets’ and ‘away from our kids’ is normally one of the reasons for imposing a prison sentence;

8. The ‘need to ensure that the offender is adequately punished for the offence’ (often called ‘restitution’) (ss(2)(h));             

9. The ‘character, antecedents, cultural background, age, means and physical or mental condition’ (ss(2)(i)): any such personal factors must be considered by the Judge, provided that they are relevant to the particular offence.

10. The ‘prospect of rehabilitation’ (ss(2)(j)): in other words, the likelihood that the offender will change his or her offending ways.

Discount for pleas of ‘guilty’
Under section 22 of the Act, the Judge must also take into account the fact that the offender pleaded ‘guilty’, and may reduce the penalty accordingly. For instance, if a 2 year prison sentence would have been imposed if the offender had pleaded ‘not guilty’ and later been found ‘guilty’, the Judge may instead impose, for example, an 18 or 20 month sentence. The amount of the reduction will depend on a number of things, including when the plea was entered (a ‘guilty’ plea entered very early in the prosecution will usually be ‘worth more’ than one entered later), the strength of the Prosecution case (if the Defence can show that the Prosecution’s case was very weak, the ‘guilty’ plea will usually be worth more), any benefits to the community (eg the time and money saved by averting a very long trial), and any human suffering averted (eg where a sexual assault victim would have faced the trauma of giving evidence at trial).

Other discounts
The Judge may also consider a discount where the Defence disclosed some or all of their case to the Prosecution before trial (section 22A), or where the offender assisted police or other law enforcement officials (eg customs officers) in their investigations; for example, where a ‘drug dealer’ gave information or evidence against others involved in the drug syndicate (s23).

The total of discounts may range from 5% up to around 25-30%, depending on the circumstances.

Other Principles
Apart from the rules contained in the Act, the following general principles may be considered:

 ‘Totality’ of sentence
The principle of ‘totality’ says that when sentencing an offender, the Judge should deal with all of the offender’s criminal behaviour. For example, if an offender robbed a bank (= armed robbery) and, while doing so, assaulted the bank teller (= the offence of assault) and caused great fear to the people at the bank (= the offence of ‘affray’) the Judge should deal with all of those offences at once, imposing a single sentence (whatever the penalties comprising that sentence may be) which takes into account all three of those offences (ie armed robbery, assault and affray). Equally, if an offender is convicted of several crimes occurring over a relatively short period (eg 10 armed robberies over 2 weeks), a single sentence should be imposed for all of the crimes.

In NSW, a document called a ‘Form 1’ is often used to ensure ‘totality’; that is, to ensure that all of an offender’s outstanding crimes are dealt with at the one sentencing. To explain, if a person is to be sentenced for the above three offences (ie armed robbery, assault and affray) but the police intend to later charge and prosecute the offender for several other minor offences (eg minor thefts, break enter & steals etc), then the Prosecution may suggest that the offender admit to those additional offences at this stage rather than be prosecuted for them later. If the offender accepts that offer, those additional offences are written down on a document called a ‘Form 1’, and the Judge takes them into account when imposing a sentence for the three mentioned offences (ie the armed robbery, assault and affray). The Judge then imposes a single sentence for all of the offences (ie for the armed robbery, assault, affray + the minor thefts & break enter & steals). This procedure saves the offender from the uncertainty, stress and anxiety of a future prosecution, thereby letting him or her ‘get on with life’. It also saves police-time, Court-time, and community funds.

‘Parity’ of sentence
The principle of ‘parity’ (or uniformity, equality) says that similar offences should be punished similarly. For example, if a person is sentenced to 3 years for the crime described above (ie armed robbery + assault + affray), then others who commit the same sort of crime should get roughly the same penalty. Similarly, if 3 co-accused are involved a crime - each having similar backgrounds, ages, and an equal involvement in the crime – their sentences should also be roughly the same.

The Supreme Court of NSW has now handed-down ‘Guideline Judgements’ which basically establish the penalties that should be imposed for certain offences. Those ‘Judgments’ are an attempt to create greater ‘parity’ in sentencing; in other words, to reduce the incidence of similar offenders getting very different penalties. Similarly, ‘minimum and maximum licence disqualification periods’ for driving offences aim to prevent the situation where one person ‘gets off’ for an offence and another person gets a lengthy disqualification period for the same offence.

2. Types of Penalties
The types of penalties in NSW are as follows:

1.  Full-Time Prison Custody
‘Full-time custody’ (also called ‘imprisonment’) means going to gaol without release for a certain period of time (eg 2 years).

Under the Act, a Judge should not sentence an offender to full-time prison custody unless – after considering all other alternatives – no other penalty is appropriate in the circumstances (section 5(1)).

When sentencing an offender to full-time custody, the Judge should set a full-term of the sentence (eg 8 years) and also a separate ‘non-parole period’ (which is the minimum term the offender must serve before being eligible for release; eg 6 years) (s44(1)). The ‘non-parole period’ should not be less than three-quarters of the full-term of the sentence unless the Judge finds that there are ‘special circumstances’ justifying a reduction (s44(2)).

Despite what was just said, the Judge can refuse altogether to set a ‘non-parole period’ for any reason he or she considers ‘sufficient’ eg if the offence is especially serious, if the offender has a particularly bad criminal record, and so on (s45(1)). In such cases, the Judge must record his or her reasons for not setting a ‘non-parole period’.

The Judge must not set a ‘non-parole period’ if the term of imprisonment is 6 months or less (s46). In such cases, the Judge must explain the reasons for not imposing a penalty other than imprisonment (s5(2)).

2.  Periodic Detention
Periodic detention was first introduced in NSW in 1970 and is regarded as the final step before a full-time custodial sentence. It is where an offender is required to report to a periodic detention centre and stay there for a certain period each week (usually 7pm Friday to 4.30pm Sunday). Periodic detention is only available where:

• the offender is over 18 (s66(1)(a));

• the offender is judged ‘suitable’ by the Court (ss(b));

• such a sentence is ‘appropriate in all of the circumstances’ (ss(c))’;

• there is room for the offender in a periodic detention centre (ss(d));

• transport is available to and from the periodic detention centre (ss(e)); and

• the offender has signed an undertaking to comply with the periodic detention order (ss(f)).

Also, periodic detention can only be ordered where the Judge sentences the prisoner to 3 years or less in prison. In such cases, the Judge can order that the sentence be served by way of periodic detention rather than full time custody. In effect, this means that the maximum term of periodic detention is 3 years (s6(1)).

In deciding whether or not to make a periodic detention order, the Judge must consider:

• the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s66(2)(a)); and

• any evidence given by a probation and parole officer (ss(b)).

When imposing a periodic detention order, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s71(1)(a)) and the consequences of breaching the order (ss(b)).

3.  Home Detention
In general terms, home detention is where an offender is required to remain inside a specific private residence (eg their home or their parents’ home) at such times and under such conditions as may be imposed by the Court.

Under section 76 of the Act, a Judge cannot order home detention for the following offences:

• murder, attempted murder or manslaughter (ss(a));

• sexual assault (ss(b));

• armed robbery (ss(c));

• any offence using a firearm (ss(d));

• any assault involving actual bodily harm or more serious harm (ss(e));

• any offence under s562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(f));

• domestic violence against a person who the offender would likely reside if a home detention order were made (ss(g);

• drug offences under ss23(2) & (3), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited substance (ss(h)); or

• any offence under the regulations of the Act.

 In addition, the Judge cannot order home detention if the offender:

• has previously been convicted of murder, attempted murder, manslaughter or sexual assault (s77(a));

• has previously been convicted under section 562AB of the Crimes Act 1900 of stalking or intimidating a person with intent to cause fear or personal injury (ss(b));

• has been convicted within the previous 5 years of domestic violence against a person who the offender would likely reside if a home detention order were made (ss(c));

• has been convicted of any offence under the regulations of the Act (ss(d)); or

• is or has within the last 5 years been subject to an apprehended violence order made to protect a person with whom the offender would likely reside if the home detention order were made (ss(e)).

 If the offender is not excluded by the above rules, the Judge can make a home detention order if ‘satisfied’ that:

• the offender is a ‘suitable person’ (s78(1)(a);

• such a sentence is ‘appropriate in all the circumstances’ (ss(b));

• the persons with whom the offender will reside have consented in writing (ss(c));

• the offender has signed an undertaking to comply with the home detention order (ss(d)).

In deciding whether or not to make such an order, the Judge must consider: 

• the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s78(2)(a)); and

• any evidence given by a probation and parole officer (ss(b))

The Judge can ‘impose such conditions as… [he or she] considers appropriate on any home detention order’ except conditions requiring the offender to pay money (s82(1)). Such conditions may include requirements relating to employment (eg that the offender can only work outside the home within certain hours etc; ss(2)(a)), requirements to perform community service (ss(b), and so on.

When imposing a home detention order, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s83(1)(a)) and the consequences of breaching the order (ss(b)). 

4.  Community Service
Community service is where an offender is required to perform a specific number of hours of work for the community; up to a maximum of 500 hours (section 8).

Under section 86 of the Act, a community service order can only be made if the Judge is ‘satisfied’ that: 

• the offender is a ‘suitable person’ (s86(1)(a));

• such a sentence is ‘appropriate in all the circumstances’ (ss(b));

• arrangements exist, and work community service work is available, in the offender’s area (ss(c) & (d));

• the offender has signed an undertaking to comply with the home detention order (ss(e)).

In deciding whether or not to make such an order, the Judge must consider: 

• the contents of any assessment report on the offender (eg a ‘pre-sentence report’)(s86(2)(a)); and

• any evidence given by a probation and parole officer (ss(b)).

Before the Judge sentences the offender to community service, he or she may refer the offender to the Probation and Parole Service (the ‘PPS’) for assessment of the offender’s suitability for such a sentence (s88). If the Judge does this, the PPS must investigate the offender’s suitability and prepare a report for the Judge (s89).

The Judge can ‘impose such conditions as… [he or she] considers appropriate on any community service order’ except conditions requiring the offender to pay money (s90(1)). Such conditions may require that the offender ‘participate in development programs’ (eg drug & alcohol program) (ss(2)(a), ‘undergo testing or assessment for alcohol or drug use’ (ss(b)), and so on.

Any order for a ‘development program’ cannot, however, require the offender to attend more than 3 times a week (ss(3)(a)), or for more than 15 hours per week (ss(b)), or for a total of more than 20 hours (ss(c)). A community service order may recommend the removal of graffiti from, or restoration of, buildings, vehicles, vessels or places (s91).

When imposing a community service order, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s90(1)(a)) and the consequences of breaching the order (ss(b)).

Soon after imposing a community service order, the Court must send the offender details of the order eg where and when he or she must report for service (eg to the Probation and Parole Service within 7 days) (s93).

5.  Good Behaviour Bond
A good behaviour bond is where an offender is ordered to be of ‘good behaviour’ for a specific period of time; up to a maximum of 5 years (section 9).

Under section 95 of the Act, a good behaviour bond:

• must require the offender to appear before the Court if called to do so during the term of the bond (ss(a));

• must require the offender to be of ‘good behaviour’ (ss(b)); and

• may contain other conditions, but must not require the offender to perform community service or to pay money (ss(c)).

Such conditions may prevent the offender from associating with specific persons (other than close family members) (s100A(a); 100A(3)) or from going to certain  places  or districts (except for the offender’s place of residence, the offender’s close family’s place of residence, the offender’s workplace, the offender’s educational institution or the offender’s place of worship) (s100A(2)).

Any breach of a good behaviour bond may result in the offender being brought before a Court (s98(1)) and the bond being varied or revoked (cancelled) (ss(2) & (3)). If that occurs, the Judge may re-sentence the offender to a term of imprisonment or another penalty eg periodic detention or home detention (s99). If the offender breaches an order not to associate with specific persons or go to certain places, he or she may get up to an additional 6 months in gaol and/or be fined 10 penalty points.

When imposing a good behaviour bond, the Judge should take ‘all reasonable steps’ to explain the offender’s obligations (s96(1)(a)) and the consequences of breaching the order (ss(b)).

‘Section 10 Bond’
Section 10 of the Act provides that, where an offender is guilty of an offence (whether pleads guilty or is found guilty), the Judge may nevertheless decide not to convict the offender and, instead, either: 

• dismiss the charges unconditionally (ss(1)(a)), or

• discharge the offender on the condition that he or she enters a good behaviour bond not exceeding 2 years (ss(b)).

Importantly, no conviction is recorded in either case; in other words, the offender does not get a ‘criminal record’ for the offence. Such a lenient order can only be made if:

• it is ‘inexpedient’ to inflict punishment; in other words, there is no real advantage or benefit in punishing the offender (ss(2)(a)); or

• it is ‘expedient’ to release the offender on a good behaviour bond (ss(b)).

In deciding whether to grant a ‘section 10 bond’, the Judge must consider: 

• the offender’s ‘personal character, antecedents… [ie history] age, health and mental condition’ (ss(3)(a));

• ‘the trivial nature of the offence’ (ss(b));

• any ‘extenuating circumstances’; in other words, things that may explain the offence eg speeding to get an injured friend to hospital etc (ss(c)); and

• ‘any other matter that the court thinks proper to consider’ (ss(d)).

An offender given a ‘section 10 bond’ may still, however, be ordered to pay for, deliver or restore stolen property (ss(4)(a) & (c)) and/or to pay compensation to a victim of his or her crime (ss(b)).

Community Service and Good Behaviour Bonds to be alternative penalties only
Section 13 of the Act says that an offender cannot get both community service and a good behaviour bond for the same offence; they are alternative penalties only.

6. Suspended Sentence
Where an offender is sentenced to full-time imprisonment for 2 years or less, the Judge may order that the sentence be ‘suspended’; in other words, that the offender be released from custody and enter a good behaviour bond for the term of the sentence (section 12). For example, if an offender gets 18 months in gaol for ‘malicious wounding’, the Judge may decide not to send the offender to gaol and instead release him or her on an 18 month good behaviour bond. However, if the offender breaches that good behaviour bond, he or she will be brought before the Court and will normally be ordered to serve the remaining time in gaol. Suspended sentences are usually only available where there are several good reasons not to send the offender to gaol eg there is a very good explanation for the offence, the offender has taken steps not to offend again (eg drug addiction was a cause of the crime & the offender has voluntarily entered a drug rehabilitation program), there are kids to looks after, etc etc. 

7.  Fine
Fines can be imposed as an additional penalty to any good behaviour bond except for ‘section 10 bonds’ (section 14). So, for example, an offender may get a 2 year good behaviour bond and ordered to pay a $1000 fine. Fines must usually be paid to the Court Registry within 28 days. However, if the offender is under financial hardship, he or she can ask the Court Registry to extend the payment period.

Fines can also be ordered as an additional or alternative penalty to imprisonment for any offence that is being dealt with on indictment (section 15). In such cases, the fine cannot be more than 1000 penalty units (1 penalty unit is currently $110) (s15(2) & 17). A fine can also be imposed in addition to or instead of any other penalty that may be imposed for an such an offence (eg community service, periodic detention, home detention etc) (s15(3)).

How can a solicitor help me?
If you are facing a criminal charge or a sentencing, you should contact a solicitor (lawyer) who is familiar with the criminal law. He or she can: 

·        advise you of your rights;

·        explain the charges against you;

·        explain your alternatives and likely outcomes (eg possible penalties);

·        make a bail application for you in Court (if you are refused bail by police);

·        represent you in Court.

For personalised advice and/or Court representation: Contact us now