After the accused has been convicted of an offence in New South Wales, the court has the option to impose some different penalties. The court’s power is restricted by the legislature, which sets the kinds of penalties, as well as the maximum penalties, that a court can impose.
The court’s power is also restricted by decisions of higher courts that guide the penalties a court may impose.
A sentence of incarceration is usually reserved for serious crimes or repeat offenders. In NSW, section 5(1) of the Crimes (Sentencing Procedure) Act 1999 requires courts to use incarceration as a punishment of last resort.
A custodial sentence should be imposed only when no lesser punishment will be adequate to protect society or to deter the offender from committing the same crime again.
A sentence to full-time custody consists of two parts. First, the judge sets a “non-parole period” that the offender must serve. The offender must serve the entire non-parole period before being released.
Next, the judge sets the full term of the sentence. If the offender is released at the end of the non-parole period, the rest of the sentence is served on parole supervision in the community.
The law of NSW provides that the full term of the sentence may not be longer than the non-parole period plus one-third of the non-parole period. For example, if the judge imposes a non-parole period of 6 years, the full term cannot be longer than 8 years.
The non-parole period is presumptively 75% of the full-term sentence. However, judges are not required to make the full term longer than the non-parole period. A judge can decide to make the non-parole period equal to the full term of the sentence. However, the judge must explain that decision so that a higher court can review the judge’s reasoning to determine whether the judge acted appropriately.
At the same time, the law gives judges the power to set a shorter non-parole period if the judge finds that “special circumstances” exist. Court s have wide latitude to decide that special circumstances justify allowing the offender to serve more of the full sentence on parole, but they must explain those circumstances so that a reviewing court can consider whether the judge sentenced the offender appropriately.
If the sentence is less than 6 months, there is no non-parole period. A judge cannot impose a sentence of fewer than 6 months without explaining why the judge did not select an alternative, noncustodial penalty.
Judges in NSW have the power to suspend any sentence of full-time custody if the sentence is for 2 years or less. When a sentence is suspended, the offender is allowed to serve a sentence in the community under the conditions set in a good behaviour bond.
If an offender with a suspended sentence breaches the conditions of the good behaviour bond, the judge (after holding a hearing) can revoke the bond. The offender then serves the sentence as if it had not been suspended.
Suspended sentences are used when a judge wants to impress upon an offender the importance of adhering to the conditions of the good behaviour bond. Facing the threat of serving the full sentence, offenders have a strong incentive to meet their bond conditions.
Judges typically do not suspend a sentence unless the offender’s lawyer has persuaded the court that the crime was out of character and unlikely to be repeated. It helps if the offender has taken steps (such as entering drug treatment) to promote rehabilitation.
Home detention substitutes confinement in a home for confinement in a jail. Home detention is not available for most serious offences. It is also unavailable to offenders who have certain serious offences on their criminal record.
Home detention orders impose limits on the offender’s ability to leave home while the sentence is in effect. Typical orders require the offender to remain at home except to go to work, to attend a treatment program, or to perform community service.
An intensive correction order is a sentence of not more than 2 years that permits the offender to remain in the community, subject to certain requirements. Those might include:
The court cannot set a non-parole period if it enters an intensive sanctions order. That means the offender is required to serve the full sentence. If the offender breaches the terms of the order, the offender can be required to serve the sentence in jail.
A good behaviour bond is sometimes referred to as probation. Instead of imposing a term of custody, the court allows the offender to remain in the community, subject to the terms of the bond. The bond will remain in effect for a term selected by the court, which cannot exceed the maximum term allowed by law.
By signing a good behaviour bond, the offender agrees to obey its conditions. Typical conditions require the offender to:
An offender who breaches any term of a good behaviour bond may be returned to court. After holding a hearing and considering evidence of the breach and the offender’s explanation, the judge can allow the bond to continue (without or without a change of terms) or can revoke it and impose any sentence that is authorized for the crime of conviction.
A sentence to community service is an alternative to incarceration in most cases, although judges rarely consider it appropriate punishment for a serious crime. The judge can require an offender to perform up to 500 hours of community service. The sentence ends when the community service has been satisfactorily completed.
Judges have limited authority to attach other conditions to a community service order. For example, an offender can be ordered to attend a treatment program, but not more than 3 times a week, and the total program participation cannot exceed 20 hours.
Fines are required for some offences, such as DUI. For most crimes, a fine can be assessed as the sole punishment, or it can be combined with a good behaviour bond or other punishment.
The maximum fine for an offence is set by the NSW legislature. Fines are expressed as a certain number of penalty units. Current legislation sets one penalty unit at $110.
Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows the judge to dismiss a case, even after the accused enters a guilty plea, without entering a conviction. The judge can also place the accused on a good behaviour bond for not more than two years without entering a conviction.
Judges usually use section 10 for first offenders who commit a crime that causes no real harm. A judge may also be satisfied that the offender had a good reason to commit the offence and is unlikely to repeat it. In some cases, an offender’s age or infirmity might convince the judge that section 10 is an appropriate disposition.