New sentencing options: giving with one hand and taking with the other

Amendments to sentencing law have passed and are scheduled to commence in late September 2018. The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 makes sweeping changes to non-custodial sentences. The changes apply to every matter that is not yet finalised, so if you have a client who will be sentenced after the amendments, the new regime will apply to them even if they were charged before the legislation is proclaimed, and even if they’ve already pleaded guilty. In fact, if you have a client who is already on a bond on the day the legislation is proclaimed, some of the changes will apply to them, too, so the time to learn about the changes is now.

The changes to sentencing, like the rest of the criminal justice reforms in recent times, have been described by Government as being both tough on crime and strong on rehabilitation. The result, you might think, is mixed: giving with one hand, but taking with the other. Depending on the offender, they may be in a much better position than previously: for example, offenders who previously would have been found unsuitable for an Intensive Correction Order (‘ICO’) because they couldn’t do Community Service, might now be suitable, or they may be in a much worse position: particularly, offenders who would have received a non-custodial outcome before, but now find themselves ineligible for an ICO because of their offence type, and are now without a Suspended Sentence to fall back onto.

One note of caution: this article is complicated by changes which are in the pipeline, but which are not subject to public consultation (that is, the legislation has passed, has not yet commenced, but may yet be the subject of amendment before commencement). This article attempts to sidestep those issues. It should be taken to be the law at the time of writing, not at the time the legislation commences.

 Unless otherwise stated, all references in this article are to the Crimes (Sentencing Procedure) Act 1999 (NSW), as it will appear once amended.

Introduction to the scheme

The changes in overview

1. Fines, s 10(1)(a) orders, and s 10A ‘conviction-only’ orders remain unchanged;
2. The following sentencing options are abolished in their current form:
   a. Section 10(1)(b) bonds;
   b. Section 9 bonds;
   c. Community Service Orders; and
   d. Suspended sentences of imprisonment.
3. There are two new sentencing options:
   a. Conditional Release Orders (either with, or without conviction); and
   Community Correction Orders;
4. Intensive Correction Orders are overhauled in a number of ways:
   a. More offence types are excluded from eligibility;
   b. The conditions that can (or must) be imposed have been changed (including the fact that Community Service is no longer a mandatory part of the order);
   c. Aggregate ICO sentences can be for up to three years, compared to the current two years (even though each individual one is still limited to two years); and
   d.  Home Detention has been absorbed as being merely a condition of an ICO, rather than a stand-alone penalty type.

Some terminology

As mentioned, the new sentencing options are the ‘Conditional Release Order’ (‘CRO’) and ‘Community Correction Order’ (‘CCO’). Since the names don’t make it clear, the CRO is said to be the less serious penalty of those two, even if the orders might sometimes be practically identical. Intensive Correction Orders (‘ICO’) will remain, but they get a make-over.

Once you’re on top of those terms, the next concept needing its own glossary includes all the different types of conditions which can be attached to the three bonds: ‘Standard Conditions’, ‘Additional Conditions’ and ‘Further Conditions’.

1. ‘Standard’ Conditions are, unsurprisingly, standard – and mandatory. The court must impose them in every case, although the content depends on which bond type it is;
2. ‘Additional’ Conditions are usually optional, and fall into the categories of things like place restrictions, community service, and electronic monitoring. What is available depends on the type of bond. The exception is for ICOs where, at the time of writing, a court must impose at least one additional condition; and
3. ‘Further’ Conditions are a nebulous type of condition which hasn’t been defined, but which is apparently meant to facilitate the other substantive orders. Presumably, things like ‘report to Bankstown Probation and Parole within seven days’ might fall into this category, although it remains to be seen.

If that doesn’t make much sense, see the ‘Sentencing Options  Table’ (over page), which sets it out a bit more clearly.

The new sentencing options

The full set of procedures for the new sentencing regime are beyond the scope of this article but here’s an overview:

Conditional Release Orders

With section 10 bonds being abolished, a CRO will be a bond which spans the range between the existing non-conviction s 10(1)(b) bond, up to what would currently be a no-frills, supervision-only, s 9 bond. The s 10A ‘rising of the court’ or ‘conviction with no other order’ will continue unchanged.

Importantly, CROs are available in matters where a fine is the only available penalty, as well as where imprisonment is provided for (s 9(1); s 9(3)(b)). A CRO can be without a conviction  (s 9(1)), which will mean that practitioners need to be careful to explain during submissions whether or not they are asking for a CRO with, or without conviction.

The procedures for imposing a CRO are in Part 8. The order can last for up to two years (s 95(2)). Every CRO is subject to two standard conditions: not to commit any offence, and to appear at court if called upon (s 98). In addition, a court can choose to impose ‘Additional Conditions’ relating broadly to rehabilitation, abstention from drugs or alcohol, non-association and place restrictions, and supervision (s 99(2)).

In a CRO, the Additional Conditions are optional, and they can be time limited (for example, a place restriction, but only for the first three months of an order) (s 99(4)). A CRO cannot impose home detention, electronic monitoring, a curfew, or community service (s 99(3)). The court can also impose ‘Further Conditions’, which (as was noted above) are undefined – except that they can’t impose prohibited conditions, or be inconsistent with a Standard or Additional Condition (whether or not actually imposed).

Community Correction Orders

CCOs span the range from what would currently be a s 9 bond up to what would currently be a Community Service Order. Community Service has been abolished as a sentence in its own right; if someone is going to get Community Service, it will have to be as a condition of a CCO or an ICO. A CCO is an alternative to imprisonment – that is, it is not available for fine-only offences (s 8(1)).

The procedures for imposing a CCO are found in Part 7. A CCO lasts for a maximum of three years (s 85(2)). Every CCO is subject to two Standard Conditions: not to commit any offences, and to appear at court if called upon (s 88). The Additional Conditions which may be imposed under a CCO are more punitive than those available under a CRO (and too numerous to list here – see the table). As with CROs, the choice to impose any Additional Conditions is discretionary – that is, it is possible to have a simple CCO which has only the Standard Conditions.

Importantly, as noted, the Additional Conditions for a CCO may include community service for up to 500 hours (s 89(2)(b)), which is the replacement for the existing Community Service Order. Of equal importance, a CCO cannot include home detention or an electronic monitoring condition (s 89(3)). And, whilst they can include a curfew condition, that curfew can only be for up to 12 hours a day (s 89(3)). For more community service, to impose home detention or electronic monitoring, or to impose a longer curfew, a court would need to impose an Intensive Correction Order. Once again, Further Conditions can be imposed to facilitate the order generally as long as they aren’t prohibited or inconsistent.

It should be noted that there will be offenders who are not eligible for an ICO because of their offence type (see below), but for whom the court does not want to impose fulltime custody. Examples might include offences like industrial manslaughter, or very old historical sexual offences committed upon a child, but whilst the offender was also a child. For at least some of those offenders, the court is going to have to consider dropping all the way down to a CCO, probably with very harsh conditions – although some of them, presumably, will go to gaol rather than the non-custodial sentence they would’ve otherwise received.

Intensive Correction Order

ICOs have been around for a while now, although the changes are so significant as to almost amount to an entirely different beast. The biggest differences will be to eligibility. Many new offence types have now been excluded from ICOs. Whereas before it was mostly sex offenders who were prohibited, the categories have now been extended to exclude manslaughter, firearms offences, and other offences (s 67). Moreover, since Suspended Sentences are to be abolished, and Home Detention is being subsumed into the ICO, it leaves the ICO as the only sentence of imprisonment which does not involve fulltime custody.

There are, however, two positive developments. The first, and the one most likely to impact the number of orders, is the removal of the mandatory community service requirement. This has historically been one of the main reasons offenders were assessed as unsuitable for an ICO (whether because of unavailability of work, or because they were otherwise unfit for community service), so the number of people assessed as suitable should increase drastically. The second is the extension of the length of the orders. Although each individual ICO can still only be two years long, they can be accumulated up to three years (s 68). The procedures are found in Part 5.

Another curious new development is that when deciding whether to impose an ICO, community safety must be the ‘paramount consideration’, but in considering community safety, the court can consider whether making the order would facilitate the rehabilitation of the offender and therefore address community safety (s 66). How this will work in practice remains to be seen.

Unsurprisingly, given it is a sentence of imprisonment, ICOs potentially involve the most punitive conditions. The Standard Conditions are not to commit any offence, and to accept supervision (s 73). The list of Additional Conditions is extensive (again, see table), including Home Detention (which requires a particular kind of assessment report for that condition (s 73A(2))) and electronic monitoring. Again, Further Conditions are available.

ICOs will continue to be overseen by the State Parole Authority (‘SPA’). Without meaning to pass comment on the relative merits of supervision by SPA as distinct from supervision by the original sentencing court (which was the case under suspended sentences), clients should probably be advised of the differences in approach upon breaches.

Other significant changes applicable to all bonds

Amendments to conditions after sentence

In a significant shift away from the principle of finality, it will now be possible for both the sentenced offender and the State to subsequently make an application to vary the conditions of the order during its term. The Regulations, when public, will set out relatively specific procedures in relation to how this will work. At least in theory, applications to vary orders are supposed to be limited to remedying problems, like an offender who is suddenly medically unable to complete their community service component, or whose rehabilitation condition has been rendered impossible because there are no providers available in the particular location. However, in theory it would be possible for either party to amend the conditions in any number of ways, and the practical implications of this process (and in particular the workloads of courts) remains to be seen.

Breaches

Although breaches should work roughly the way they’ve always worked, it is important to note that they have been moved from their current location into the Crimes (Administration of Sentences Act 1999 (NSW) – they’ve been spread out through that Act, although breach of each kind of order has its own Part.

Transitional arrangements

The transitional arrangements might be diplomatically described as disappointing. As indicated in the introduction to this article, the new legislation applies to all unsentenced matters, whenever committed, and regardless of when the plea is entered or verdict delivered. The legislation also converts all existing bonds into the new bonds. That means affected offenders fall into two categories: offenders who are yet to be sentenced, and offenders who have already been sentenced – each is dealt with briefly below.

Offenders yet to be sentenced

The effect of the transitional arrangements is that they apply to an offender who is yet to be sentenced, regardless of when they were charged or when they were found guilty. So for example, a client who pleads guilty to an ineligible sexual offence today but is not sentenced until after the changes will not be able to argue for a suspended sentence, and will therefore likely go to gaol unless they can convince a judicial officer that no custodial sentence is warranted at all.

One question which will need to be determined is, if an unsentenced offender can be said to be in a worse position under the new provisions than under the old provisions, what is the effect of s 19 of the Act, which deals with increases in penalties?  That provision provides that where a maximum penalty is increased it applies only to offences committed after commencement, but where the maximum is decreased it applies to any matter not yet sentenced.

Existing orders

Existing orders are converted – technically they are ‘taken to be’ – the new versions of that penalty. There is too much detail involved to set out here how the conversion of each type of order will work – you’ll find the changes in Schedule 2, Part 29. But by way of example, an existing s 9 bond is taken to be a CCO with the standard conditions, the conditions from the original  s 9, and any other conditions prescribed by the regulations. This wholesale conversion was said to be for the sake of avoiding ‘legacy’ bonds in the Community Corrections system, potentially for many years. Significantly, there is no provision in the Act or Regulations for offenders to be notified of the change.

The only genuine exception is existing suspended sentences, which continue as normal unless breached, when they must be dealt with by either imposing fulltime custody or an ICO (cl 76 of Sch 2 to the Act). The last few stragglers with Periodic Detention Orders (abolished in 2010) will fall to have their sentences re-determined (Division 3 of Part 29).

Again, it remains to be seen whether this wholesale conversion of existing court orders is valid – especially if an offender is shown to be worse off after the change – although some provisions (for example item 78 of Schedule 2) are clearly designed to attempt to weather a legal challenge.

Assessment reports (Pre-Sentence Reports)

It is not completely clear how it will work in practice, but there should only be limited differences – all positive. The good news is that you no longer need to wait until the judge has completely heard a matter before seeking a report in relation to an ICO (unless you’re asking for an ICO with Home Detention). At the time of writing, Part 2, Division 4B provides that an ‘assessment report’ can be ordered at any time. In principle, the only time you absolutely must get an assessment report is for any ICO, and for a CCO with a community service component (s 17D). The only time you have to wait until after the sentence is actually imposed is for an ICO with Home Detention. It follows that, if there is any chance you will be seeking an ICO on sentence, you should now seek an assessment report when the matter is set down, rather than waiting until the day of sentence to ask for it (which would have been the practice in the past).

Conclusion

Practitioners should expect there to be an uncomfortable settling-in period for this legislation. Until we are all comfortable with the new regime, sentencing (which is already terribly complicated) will take longer, and at the margins between penalties it is going to be difficult to advise clients of likely outcomes. Aspects of the legislation may provoke appeals, which themselves will lead to more uncertainty, and sentencing statistics will be temporarily rendered much less useful. The legislation does not make exciting bed-time reading, but given the way the transition is being managed, busy practitioners will be well-advised to read it now, well before it starts.

Thomas Spohr is a solicitor, Legal Aid NSW* and a member of the Law Society of NSW Criminal Law and Ethics Committees. * The views expressed in this article are not necessarily those of Legal Aid NSW.