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7. Alternative outcomes to prison sentencing (NSW)

In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the sentencing options. On 24 September 2019, major reforms were introduced. In addition to full-time imprisonment, the court may also impose: Community Release orders, Community Corrections orders and Intensive Corrections orders. The sentencing options in NSW from most lenient to most severe are as follows:

Options (i) to (ii) do not involve a criminal conviction

i.               Section 10(1)(a): unconditional dismissal of charges

ii.              Section 10(1)(b)/Section 9(1)(b): discharging the person under a conditional release order (CRO)

iii.             Section 10(1)(c): discharging the person on condition that the person participate in an intervention program

All other options which follow include the recording of a conviction

 

iv.             Section 10A: conviction with no other penalty: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec10a

v.              Fines: Section 15: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div4/sec15

vi.             Community release order (CRO) (with a conviction): Section 9(1)(a):  https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec9

vii.           Community Corrections Order (CCO): Section 8: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec8

 

The following options (viii) and (ix) are terms of imprisonment:

 

viii.         Intensive Corrections order (ICO): Section 7: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div2/sec7

 

[an ICO is a term of imprisonment served in the community – subject to certain conditions, such as engaging in particular programs, being supervised by community corrections]

 

ix.            Full time Imprisonment

NSW Legal Aid Commission has put together a package of information which carefully explains the sentencing options in NSW: https://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/sentencing-reforms

Offenders who are put on a CCO or an ICO are typically required to adhere to a number of "conditions," which may include:

  • to be of good behaviour, not commit any further offences
  • supervision by the community corrections
  • abstain from the use of alcohol or other drugs
  • engage in treatment programs
  • community service
  • home detention (ICO only).

If a CRO, CCO or ICO is breached, the order may be revoked, and the person re-sentenced to a more severe penalty.

 

Circle Sentencing

The Circle Court is available to some Aboriginal and Torres Strait Islander offenders, depending on the nature of their offence and aims to enhance their respect for, and thus their compliance with, the law through the self-determined process.

In towns where Circle Courts operate, Indigenous offenders may be referred to the Circle Court for sentence following a plea of guilty. The court comprises a magistrate, police prosecutor, the victim and local Aboriginal Elders, all of whom have a voice in relation to the sentencing of the offender. The court must operate within normal sentencing guidelines prescribed by legislation.

Further resources relating to circle sentencing:

·      NSW Judicial Commission: https://www.judcom.nsw.gov.au/education/education-dvds/circle-sentencing-in-nsw/

·      Creative Spirits: https://www.creativespirits.info/aboriginalculture/law/circle-sentencing

·      ABC News February 2019: https://www.abc.net.au/news/2018-09-04/circle-sentencing-to-be-reviewed-for-first-time-in-10-years/10198802

 

Restorative Justice

The term ‘restorative justice’ implies the notion of the offender making amends to the victim. It refers to approaches to sentencing and punishment which aim to get the offender to take responsibility for their crime through the process of direct interaction with the victim via a conference. This objective facilitates the victim being given a voice and also hearing the offender express remorse and apologise for their actions. Examples of sentencing processes which embody the notion of restorative justice are:

  • Youth Justice Conferencing
  • Circle Sentencing of Indigenous offenders

 

Mental Health Diversion (NSW)

In addition to the sentencing options at law in the Local Court, clients must also be advised in appropriate cases about the possibility of making an application in relation to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This section allows for a person who is mentally ill or suffering from a mental health condition or cognitive impairment to be diverted from being dealt with at law. The court may discharge the person (with or without conditions) if it determines that it would be more appropriate to deal with the defendant in accordance with section 32 than in accordance with law. There are also other diversionary options available for mentally ill persons (section 33).

Section 32: https://www.legislation.nsw.gov.au/#/view/act/1990/10/part3/sec32

Section 33: https://www.legislation.nsw.gov.au/#/view/act/1990/10/part3/sec33

The Intellectual Disability Rights Service has developed a helpful step-by-step guide for making a section 32 application: https://idrs.org.au/resources/section-32/


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