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Legal Information Access Centre (LIAC) - Hot Topics |
When most people think about sentencing, the first thing that comes to mind is imprisonment. However, imprisonment is only one of a wide range of sentencing options available to the courts. As a general concept, imprisonment is regarded as an option of last resort, to be used only when no lesser form of punishment would be appropriate: Crimes (Sentencing Procedure) Act, s 5 (1). As many minor offences do not even allow for imprisonment as an option, it is only used in a small proportion of criminal cases.
Generally, any particular offence will have a maximum penalty specified by legislation. There is no minimum penalty specified, therefore the discretion remains to impose any sentence that does not exceed the maximum. So, a major element of the discretionary system of sentencing is the choice of sentencing options. An offence may, for example, specify a maximum penalty of two years imprisonment but be dealt with by the imposition of a fine or a community service order rather than imprisonment.
The Crimes (Sentencing Procedure) Act 1999 sets out the range of penalties that may be imposed. These can be divided into two classes: custodial and non-custodial.
Custodial penalties require the offender to be deprived of liberty in some way. The Crimes (Sentencing Procedure) Act 1999 states in section 5 (1) that ‘a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate’. The forms of custodial penalties are imprisonment, periodic detention and home detention.
When a court sentences an offender to a term of imprisonment, the sentence is generally divided into two components. The first of these is the non-parole period which is the minimum period for which the offender must be kept in detention. Where a non-parole period is set, the Court must also nominate the balance of the term of the sentence, which commences when the non-parole period expires. These two terms form the total term of sentence.
A court that sentences an offender to a term of imprisonment for less than three years with a non-parole period must order that the offender is to be released on parole at the end of the non-parole period. If the offender is sentenced to a term of imprisonment for more than three years with a non-parole period, the offender is eligible to apply for parole after he or she has served the non-parole part of the sentence.
If parole is granted, the period of the parole will expire when the balance of the term expires. Where parole is denied, the prisoner will continue to be imprisoned, with the right to apply for parole again in 12 months. This process continues until either the prisoner is paroled, or the balance of the term expires, in which case the prisoner has an absolute right to be released.
There are exceptions to these procedures, for example a Court may decline to set a non-parole period (and so require the offender to serve the whole term in prison) if it appears this is appropriate. There is also no power to impose a non-parole period where a life sentence is imposed, and no power to set a non-parole period where the total term of imprisonment is less than six months. Sentences without a non-parole period are known as ‘fixed’ terms of imprisonment.
This is the period of a sentence of imprisonment which can be served outside prison. Strict conditions are attached to release on parole, such as supervision by a parole officer. Parole is part of the custodial sanction, but is also designed to assist the offender to re-integrate into mainstream society. If the offender breaches any conditions of parole, the parole can be revoked and the offender returned to prison to serve the remainder of the sentence. Parole is not strictly a type of punishment but rather a variation of custody. In deciding whether to grant parole, the State Parole Authority takes into account a number of factors, but must have regard for the principle that the public interest is of primary importance.
Different parole provisions apply to offenders who are classified as a ‘serious offender’. The State Parole Authority receives reports and advice from the Serious Offenders Review Council about the release on parole of a serious offender. The Parole Board must notify any victims of the offender who are listed in the Victims’ Register of a preliminary intention to grant parole to the offender. The victims may make submissions to the Parole Board about whether parole should be granted.
If the offender receives sentences for more than one offence, the sentences may be ordered to be served concurrently (that is, the sentences are served at the same time) or consecutively (each sentence commencing at the termination of the preceding sentence) or partly consecutively (by use of staggered commencement dates).
Where an offender is sentenced for more than one offence, the guiding principles are that the sentence for each individual offence must be appropriate for that offence, and the aggregate sentence (that is the accumulated weight of all the sentences) must not be excessive or crushing. This is known as the principle of totality.
A court that has sentenced an offender to a term of imprisonment of three years or less, may order that the sentence be served by way of periodic detention. Periodic detention generally involves the offender being detained in a detention centre for weekly two-day detention periods (such as weekends), and being at liberty the rest of the time. An offender on periodic detention may be required to carry out community service work or to participate in any activity that is conducive to the offender’s welfare or training.
A court that has sentenced an offender to imprisonment for 18 months or less may direct that the sentence be served by way of home detention. Home detention involves the offender being required to stay inside his or her residence at specified times (for example, from 7pm to 7am). The detention may be monitored by an electronic device attached to the offender, or by random visits and calls to the residence.
There are a number of precautions to prevent violent (or potentially violent) offenders being allowed to serve a sentence by way of home detention, in order to protect both members of the community and those likely to share the residence where the offender is detained. Home detention is only available for a limited range of offences, and it may not be ordered for offenders with a certain criminal history (such as a person who has at any time been convicted of sexual assault; or who has, within the last five years, been convicted of a domestic violence offence against any person with whom the offender is likely to live if a home detention order were made).
The non-custodial penalties available under the Crimes (Sentencing Procedure) Act 1999 are community service orders, good behaviour bonds, dismissal of the charge, conditional discharge of the offender, deferral of sentencing, suspended sentences and fines.
A court may sentence an offender to community service work if the offender undertakes to comply with the order and if the offender is assessed as suitable for community service work by the Probation and Parole Service. The maximum number of hours of community service that may be ordered is 500.
The kind of community service work to be performed is determined by the probation and parole officer supervising the offender. The court making the community service order may recommend that the community service work to be performed should include the removal or obliteration of graffiti and the restoration of buildings, vehicles etc following the removal or obliteration of graffiti.
A court may make an order directing an offender to enter into a good behaviour bond for a term of up to five years. A person under a good behaviour bond must comply with the conditions of the bond imposed by the court, must be of good behaviour and must keep the court informed of any changes in the person’s residential address. If the person doesn’t enter into the bond as required, the court may re-sentence the offender for the original offence.
In certain circumstances a court may find a person guilty, but opt to dismiss the charge without recording a conviction. Dismissal of charge is generally used by the courts for trivial offences, or where the age, character, prior criminal record or mental condition of the offender indicates that only a nominal sentence should be imposed. It is seen as a way of giving people who make a mistake or error of judgement a second chance without being burdened by gaining a criminal record.
A court may also make a similar order for conditional discharge of the offence, in which case no conviction is recorded but the offender is required to be of good behaviour for a period of up to two years. If this bond is breached the court may convict and sentence the offender for the original offence.
A court that convicts an offender may adjourn the case and grant conditional bail to the offender for the purpose of assessing the offender’s capacity to undergo rehabilitation (such as a drug or alcohol program or finding employment). The case can be adjourned for up to 12 months. When the proceedings are recommenced, the court can, taking into account the outcome of the rehabilitation, impose no sentence or sentence the offender for the original offence.
A court that imposes a sentence of up to two years imprisonment on an offender may make an order suspending execution of the sentence for up to two years, and directing that the offender be released from custody on condition that the offender enters into a good behaviour bond. If the offender breaches the good behaviour bond, the court may revoke the bond and the offender must serve the sentence of imprisonment originally imposed.
Theoretically, this is actually a form of custodial sentence, as the judge or magistrate is first required to impose the term of imprisonment before proceeding to consider whether the sentence ought to be suspended.
A court may impose a monetary penalty on an offender instead of, or in addition to any other penalty. The maximum fine that can be imposed for an offence is generally set out in the legislation creating the offence, and is usually expressed in ‘penalty units’. The amount of a penalty unit is set by section 17 of the Crimes (Sentencing Procedure) Act 1999; currently it is $110. For example, if the maximum penalty for an offence is 1000 penalty units, the heaviest sentence that may be imposed is a fine of $110 000.
The court is required to take into account the offender’s ability to pay when determining the amount of a fine (Fines Act 1996 s 6). If a fine is not paid, the driver’s licence and vehicle registration of the fine defaulter can be cancelled. If the fine remains unpaid (or the fine defaulter does not have a driver’s licence or motor vehicle), the fine defaulter’s property can be seized, or payment of the fine from the defaulter’s wages or salary can be arranged without the defaulter’s consent. If the fine still remains unpaid, a community service order can be imposed on the defaulter. If the defaulter does not comply with the community service order, the defaulter can be imprisoned (but may be able to serve the sentence by way of periodic detention).
The process of convicting and sentencing offenders through the courts is time-consuming and expensive for governments as well as defendants.
In some cases, it is thought that the best long-term solution for dealing with certain offenders is through means other than traditional sentencing. A range of diversionary schemes and ‘restorative justice’ programs exist in New South Wales which aim to address the causes of offending behaviour and provide offenders with a pathway to rehabilitation so that they can avoid further contact with the criminal justice system.
These schemes often are designed to meet the needs of a particular group of people (such as young persons or Aboriginals), address certain types of offending (eg drug and traffic offences) or provide assistance in overcome certain conditions that are thought to lead to offending (eg drug and alcohol dependency).
The Young Offenders Act 1997 (NSW) establishes a scheme of police warnings, cautions and youth justice conferences for certain offences committed by children aged 10 to 18 years. Offences that cause the death of a person, sexual assault offences, traffic offences where the child is old enough to hold a permit or a licence, breaches of apprehended violence orders, and most drug offences are all excluded from the scheme.
Police apprehending a young offender may apply a given set of criteria before deciding whether this child should be cautioned, referred to a youth justice conference, or charged. The criteria include:
➢ seriousness of the offence,
➢ degree of violence involved,
➢ harm caused to any victim,
➢ the child’s previous offending history,
➢ number of times the child has previously been cautioned or participated in a youth justice conference.
Families, extended families, victims and their supporters, police, and the child’s lawyer are all entitled to attend a youth justice conference. Others, such as respected community elders, interpreters and skilled professionals may be invited to attend where appropriate.
The object of the conference is to agree on an ‘outcome plan’ for the young offender. The plan is designed to reflect the interests of the victim, the offender and the community. The outcome plan encourages the offender to take responsibility for his or her actions, and provide means of education and rehabilitation designed to divert the child from further criminal behaviour.
See: http://www.djj.nsw.gov.au/conferencing_scheme. htm
Circle Sentencing is a restorative justice initiative established to meet the needs of Aboriginal offenders: see also Sentencing Aboriginal offenders, p 24. The scheme was introduced in February 2002 at Nowra Local Court and has now been extended to selected other areas of the state. Offenders are brought before a ‘circle’ which includes the victim and the victim’s family, community elders and other affected community members as well as the offender’s lawyer, a prosecutor and a presiding magistrate. While the program is designed to meet the needs of Aboriginal offenders and the procedures are different to those of a usual Local Court sitting, it must be remembered that Circle Sentencing is still a court procedure, and any punishment handed down has the same effect as a sentence imposed by traditional court means.
A ‘circle discussion’ occurs in which the prosecutor, offender, victim and community representatives are all provided with an opportunity to speak. The discussion covers matters such as the offence itself and its impact on the victim and the community, how the damage or harm done may be redressed, and what measures can be taken to assist the victim and the offender in the future. The circle seeks consensus on a range of issues, but is guided by the magistrate who must ensure that the outcome (sentence) is within an acceptable range.
Circle Sentencing aims to[1]:
➢ reduce the cultural barriers between courts and Aboriginal people,
➢ improve the level of support for Aboriginal offenders,
➢ incorporate support for victims,
➢ promote healing and reconciliation,
➢ increase Aboriginal people’s confidence in the legal system,
➢ promote the empowerment of Aboriginal people in the community,
➢ introduce more relevant and meaningful sentencing options for Aboriginal offenders, with the help of respected community members,
➢ help break the cycle of ‘recidivism’ or repeat offending.
A report published after the first twelve month trial of Circle Sentencing in Nowra showed that the penalties imposed by the circle are no less severe than those imposed for similar offences in conventional courts. But importantly, since the circle procedure is less formal, the offender is more likely to recognise and appreciate the harm caused to the victim. It is hoped that this acceptance of responsibility will form a good basis for rehabilitation of offenders. The report also included a survey which found a ‘high level of satisfaction with circle sentencing’ among those involved including offenders, victims, lawyers, community representatives and support persons.
See Circle Sentencing in NSW, a review and evaluation, by the Judicial Commission of NSW and the NSW Aboriginal Justice Advisory Council, 2003. Available at http://www.lawlink.nsw.gov.au/ajac.nsf/pages/reports click on the link to open the report.
The Magistrates Early Referral into Treatment Program (MERIT) is a court-controlled program which aims to reduce drug-related crime by providing treatment and rehabilitation services to eligible adult drug offenders. MERIT is different to the other programs discussed here because it operates before an offender enters a plea and can be sentenced. A person who successfully completes the program will have that fact taken into account when he or she returns to court. Successful completion of the program will show the magistrate that the offender is willing to take responsibility for his or her actions and is making positive steps towards rehabilitation. However, because the program is voluntary, failure to complete the program does not incur any additional punishment.
See: http://www.judcom.nsw.gov.au/monograph24/screenmerit.pdf
The Drug Court of NSW was instituted in 1999 as an alternative to traditional criminal justice approaches to provide long-term solutions to the cycle of drug use and crime. Drug Courts aim to assist drug-dependent offenders to overcome both their drug dependence and their criminal offending. The program diverts offenders into programs designed to eliminate, or at least reduce, their dependency on drugs.
An offender who is eligible is assessed, and if accepted into the program, will appear before the Drug Court where he or she enters a guilty plea. An initial sentence is imposed but suspended to allow the offender to undergo a treatment program which may involve entry to a residential rehabilitation centre and other treatment such as methadone, buprenorphine and naltrexone programs, psychiatric treatment and counselling.
A program will last for at least twelve months unless it is terminated sooner, for instance if the Court decides that the participant has substantially complied with the program or if the offender applies to have the program terminated.
When a program is terminated or completed, the Court reconsiders the initial sentence. If the offender has complied with the treatment program, a non-custodial sentence is often substituted for the original sentence. The Court also awards certificates of graduation and of achievement to successful participants. Where an offender fails to successfully complete the treatment program, the initial sentence cannot be increased. Appeals against a final sentence imposed after a sentence is terminated can be made to the Court of Criminal Appeal.
See: An evaluation by the Bureau of Crime Statistics and Research, published in 2002: www.lawlink.nsw.gov.au/bocsar
This court deals with eligible young offenders, and has a similar aim of giving young offenders an opportunity to participate in an intensive program of rehabilitation before being sentenced. A program lasts six months and involves detoxification and rehabilitation, educational and vocational courses, and regular appearances throughout that period before the Youth Drug and Alcohol Court. The Court is established under the Children’s (Criminal Proceedings) Act 1987.
For more information see http://www.lawlink.nsw.gov.au/lawlink/drug_court/ll_drugcourt.nsf/pages/ ydrgcrt_aboutus
Other diversionary schemes include the cannabis cautioning scheme, the Traffic Offenders Program (TOPS) and the Sober Driver Program.
[1] See Circle Sentencing in NSW, a review and evaluation, by the Judicial Commission of NSW, and the NSW Aboriginal Justice Advisory Council, 2003.