Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 No 92 An Act to consolidate and amend the law with respect to the sentencing of offenders; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Crimes (Sentencing Procedure) Act 1999. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Interpretation (1) In this Act— aggregate sentence of imprisonment—see section 53A. associate with means— (a) to be in company with, or (b) to communicate with by any means (including post, facsimile, telephone and email). authorised officer has the same meaning as it has in the Criminal Procedure Act 1986. Commissioner means the Commissioner of Corrective Services, Department of Justice. community correction order means an order referred to in section 8. community corrections officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. community service work has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. community service work condition—see sections 73A and 89. compulsory drug treatment detention means detention in accordance with Part 4A of the Crimes (Administration of Sentences) Act 1999. conditional release order means an order referred to in section 9. convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. correctional officer has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Corrective Services NSW has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. court means— (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children's Court or any other court that, or person who, exercises the functions of the Children's Court. detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987. domestic violence offence has the same meaning as it has in the Crimes (Domestic and Personal Violence) Act 2007. Drug Court means the Drug Court of New South Wales constituted under the Drug Court Act 1998. exercise a function includes perform a duty. full-time detention means detention in a correctional centre. function includes a power, authority or duty. graffiti offence means an offence under the Graffiti Control Act 2008. home detention means detention in accordance with Part 4 of the Crimes (Administration of Sentences) Act 1999. home detention condition—see section 73A. inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. intensive correction has the same meaning as in the Crimes (Administration of Sentences) Act 1999. intensive correction order means an order referred to in section 7. intervention plan has the same meaning as in the Criminal Procedure Act 1986. intervention program has the same meaning as in the Criminal Procedure Act 1986. intervention program order means an order referred to in section 10 (1) (c). juvenile justice officer has the same meaning as it has in the Children (Detention Centres) Act 1987. juvenile justice officer means a juvenile justice officer employed in the Department of Justice. non-association order means an order referred to in section 17A (2) (a). non-parole period means a non-parole period referred to in section 44 (1). offender means a person whom a court has found guilty of an offence. Parole Authority means the State Parole Authority constituted by section 183 of the Crimes (Administration of Sentences) Act 1999. person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987. place restriction order means an order referred to in section 17A (2) (b). proceed to a conviction includes record a conviction. sentence means— (a) when used as a noun, the penalty imposed for an offence, and (b) when used as a verb, to impose a penalty for an offence. Sentencing Council means the New South Wales Sentencing Council constituted under Part 8B. sentencing court, in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed. supervision condition—see sections 73, 89 and 99. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a sentence of imprisonment to which an offender is subject includes a reference to a sentence that has been imposed but is yet to commence, and (b) a reference to the term of a sentence of imprisonment is, if the term is varied under this or any other Act, a reference to the term as so varied, and (c) a reference to a non-parole period of a sentence of imprisonment is, if the period is varied under this or any other Act, a reference to the period as so varied, and (d) a reference to a court that has sentenced an offender, made an order or given a direction includes a reference to the same court differently constituted, and (e) a reference to a condition that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory, and (f) a reference to an obligation that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory. (3) Notes in the text of this Act do not form part of this Act. 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows— (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. Part 2 Penalties that may be imposed Division 1 General 4 Penalties generally (1) The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law. (2) The penalty to be imposed for a statutory offence for which no penalty is so provided is imprisonment for 5 years. (3) Part 3 applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise. 4A Domestic violence offenders—requirement for full-time detention or supervision (1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either— (a) a sentence of full-time detention, or (b) a supervised order. (2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view. (3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition. 4B Domestic violence offenders—protection and safety of victims (1) An intensive correction order must not be made in respect of— (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason). (2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence. (3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence. Division 2 Custodial sentences 5 Penalties of imprisonment (1) 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. (2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including— (a) its reasons for deciding that no penalty other than imprisonment is appropriate, and (b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender). (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) A sentence of imprisonment is not invalidated by a failure to comply with this section. (5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order. 5A Compulsory drug treatment detention The Drug Court may make an order under Part 2A of the Drug Court Act 1998 directing that an offender, who is an eligible convicted offender within the meaning of that Act, serve a sentence of imprisonment by way of compulsory drug treatment detention. 6 (Repealed) 7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note. Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years. Division 3 Non-custodial alternatives 8 Community correction orders (1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender. (2) A community service work condition must not be imposed on a community correction order made in relation to an offender to whom the Children (Community Service Orders) Act 1987 applies. (3) This section is subject to the provisions of Part 7. 9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if— (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10 (1) (b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors— (a) the person's character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. Note. These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction. (3) To avoid doubt and without limitation— (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. (4) This section is subject to the provisions of Part 8. 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders— (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied— (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors— (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction— (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under the Victims Rights and Support Act 2013, Part 6, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. Note. Certain other Acts and regulations contain provisions to the effect that an order under this section made in respect of an offence is to be treated as a conviction for certain purposes of the legislation concerned. Accordingly, those provisions apply to an order under subsection (1) (b) in respect of the offence and a conditional release order made pursuant to that paragraph. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. Note. The Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 provide for appeals against sentence, including (in some circumstances) by the prosecutor. 11 Deferral of sentencing for rehabilitation, participation in an intervention program or other purposes (1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date— (a) for the purpose of assessing the offender's capacity and prospects for rehabilitation, or (b) for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or (b1) for the purpose of assessing the offender's capacity and prospects for participation in an intervention program, or (b2) for the purpose of allowing the offender to participate in an intervention program, or (c) for any other purpose the court considers appropriate in the circumstances. (1A) Proceedings must not be adjourned under this section unless bail for the offence is or has been granted or dispensed with under the Bail Act 2013. (2) The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt. (2A) An order referred to in subsection (1) (b2) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (3) This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment. (4) Subsection (1) (b1) and (b2) do not limit the kinds of purposes for which an order may be made under subsection (1), so that an order may be made under that subsection for the purpose of allowing an offender to participate in a program for treatment or rehabilitation that is not an intervention program, or to be assessed for participation in such a program. 12, 13 (Repealed) Division 4 Fines 14 (Repealed) 15 Fines as an additional or alternative penalty to imprisonment for offences dealt with on indictment (1) This section applies to all offences dealt with on indictment, other than offences for which the penalty that may be imposed (otherwise than under this section) includes a fine. (2) A court may impose a fine not exceeding 1,000 penalty units on an offender whom it convicts on indictment of an offence to which this section applies. (3) The fine may be imposed in addition to or instead of any other penalty that may be imposed for the offence. 16 Fines for bodies corporate for offences punishable by imprisonment only If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding— (a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or (b) 100 penalty units, in any other case. 17 Penalty units Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units. Division 4A Non-association and place restriction orders 17A Non-association and place restriction orders (1) This section applies to any offence that is punishable by imprisonment for 6 months or more, whether or not the offence is also punishable by fine or to an aggregate sentence of imprisonment in respect of 2 or more offences any one of which is an offence to which this section applies. (2) When sentencing an offender for an offence to which this section applies, a court may make either or both of the following orders in respect of the offender— (a) a non-association order, being an order prohibiting the offender from associating with a specified person for a specified term, or (b) a place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district for a specified term, if it is satisfied that it is reasonably necessary to do so to ensure that the offender does not commit any further offences to which this section applies. (3) An order under subsection (2) (a) is to be one of the following— (a) a limited non-association order, being an order prohibiting the offender from being in company with a specified person except at the times or in such circumstances (if any) as are specified, (b) an unlimited non-association order, being an order prohibiting the offender— (i) from being in company with a specified person, and (ii) from communicating with that person by any means. (3A) An order under subsection (2) (b) is to be one of the following— (a) a limited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district except at the times or in such circumstances (if any) as are specified, (b) an unlimited place restriction order, being an order prohibiting the offender from frequenting or visiting a specified place or district at any time or in any circumstance. (4) An order under this section is to be made in addition to, and not instead of, any other penalty for the offence, but may not be made if the only other penalty for the offence is an order under section 10 or 11. (5) The term of an order under this section is not limited by any term of imprisonment imposed for the offence, but must not exceed 12 months. (6) This section does not limit the kinds of prohibition or restriction that may be imposed on an offender by means of any other order or direction under this or any other Act, so that such an order or direction may include prohibitions of the kind referred to in subsections (2) and (3). (7) This section is subject to the provisions of Part 8A. Division 4B Assessment reports 17B Definition of and provisions relating to "assessment report" (1) In this Division— assessment report means a report made by a community corrections officer or a juvenile justice officer under this Part. (2) The purpose of an assessment report is to assist a sentencing court to determine the appropriate sentence options and conditions to impose on the offender during sentencing proceedings. (3) An assessment report is made by a community corrections officer or a juvenile justice officer. (4) The regulations may make provision for or with respect to matters to be addressed in, and the preparation and furnishing of, an assessment report. 17C Request for assessment report (1) Except as provided by section 17D— (a) the sentencing court may request, but is not obliged to request, an assessment report on an offender, and (b) such a request may be made at the following times only— (i) after finding an offender guilty of an offence and before a sentence is imposed, (ii) during sentencing proceedings after a sentence of imprisonment has been imposed on the offender, (iii) during proceedings to impose, vary or revoke an additional or further condition on a community correction order or conditional release order that has been made in respect of the offender, (iv) during proceedings to correct a sentencing error in accordance with section 43, (v) during proceedings to re-sentence an offender after a court has revoked the offender's community correction order or conditional release order, (vi) during proceedings to determine an appeal against a sentence, (vii) any other times prescribed by the regulations. (2) If a court refers an offender for assessment in relation to a sentence and a sentence of imprisonment has been imposed in respect of the offence concerned— (a) the referral stays the execution of the sentence and the operation of section 48, and (b) the offender is to be remanded in custody, or granted bail in accordance with the Bail Act 2013, until the court decides whether or not to make an intensive correction order. 17D Requirement for assessment report (1) The sentencing court must not make an intensive correction order in respect of an offender unless it has obtained a relevant assessment report in relation to the offender. (1A) However, the sentencing court is not required to obtain an assessment report (except if required under subsection (2) or (4)) if it is satisfied that there is sufficient information before it to justify the making of an intensive correction order without obtaining an assessment report. (2) The sentencing court must not impose a home detention condition on an intensive correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (3) The sentencing court must not request an assessment report relating to the imposition of a home detention condition on an intensive correction order unless it has imposed a sentence of imprisonment on the offender for a specified term. (4) The sentencing court must not impose a community service work condition on an intensive correction order or community correction order unless it has obtained an assessment report relating to the imposition of such a condition in relation to the offender. (5) The assessment reports referred to in this section may be in the 1 report or in more than 1 report. Note. See also sections 73A (3) and 89 (4) regarding the imposition of home detention conditions and community service work conditions. Division 4C Provisions relating to certain orders 17E Definitions In this Division— relevant orders means the following orders (or any combination of 1 or more of them)— (a) intensive correction orders, (b) community correction orders, (c) conditional release orders. 17F Multiple orders (1) Only 1 relevant order can be in force at the same time in respect of the same offence in relation to the same offender. (2) Subject to subsection (1), 2 or more relevant orders can be in force at the same time in respect of 2 or more offences in relation to the same offender. (3) For the purposes of subsection (1), an intensive correction order prevails over a community correction order, and a community correction order prevails over a conditional release order. (4) For the purposes of subsection (2) and subject to sections 17G and 17H, if there is an inconsistency as to how any conditions of the relevant orders operate together, then to the extent of the inconsistency— (a) a condition of an intensive correction order prevails over a condition of a community correction order, and (b) a condition of a community correction order prevails over a condition of a conditional release order, and (c) despite paragraphs (a) and (b), a standard condition prevails over a condition that is not a standard condition. 17G Community service work conditions under multiple orders (1) A relevant order (the new order) may not be made if the sum of— (a) the number of hours of community service work to be performed under the new order, and (b) the number of hours of community service work remaining to be performed under any other relevant order (an existing order), exceeds 750 hours (if any one of the orders is an intensive correction order) or 500 hours (if all the orders are community correction orders). Note. Community service work conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders. (2) In calculating the sum referred to in subsection (1), the hours of community service work to be performed under the new order are to be disregarded to the extent to which they run concurrently with those to be performed under any existing order. (3) The hours of community service work to be performed under the new order are taken to run concurrently with those to be performed under any existing order. 17H Curfew conditions under multiple orders (1) This section applies where 2 or more curfew conditions apply under 2 or more relevant orders in respect of the same period of 24 hours (the period of 24 hours). Note. Curfew conditions can be imposed on intensive correction orders and community correction orders, but cannot be imposed on conditional release orders. (2) If all the relevant orders are intensive correction orders, this section does not affect the curfew conditions. (3) If all the relevant orders are community correction orders, the following provisions apply— (a) The offender cannot be required to observe a curfew in respect of more than 12 hours in the period of 24 hours. Any excess is to be disregarded. (b) The offender is required in the period of 24 hours to observe only the curfew imposed by the 1 curfew condition that specifies more hours than the other or others. (4) If at least 1 of the relevant orders is an intensive correction order and at least 1 is a community correction order, the following provisions apply— (a) This section does not affect any curfew condition imposed on an intensive correction order. (b) The offender cannot be required, as a result of the curfew conditions imposed on the relevant orders, to observe a curfew in respect of more than the greater of— (i) the hours required by curfew conditions imposed on the intensive correction order or intensive correction orders in the period of 24 hours, or (ii) 12 hours in the period of 24 hours. Any excess is to be disregarded. (c) In determining the number of hours under 2 or more curfew conditions imposed on 2 or more community correction orders, regard is to be had only to the 1 curfew condition that specifies more hours than the other or others. (5) The regulations under the Crimes (Administration of Sentences) Act 1999 may make provision for or with respect to the manner of determining numbers of hours for the purposes of this section and any excess to be disregarded under this section. 17I Explanation of relevant order to offender (1) Having made a relevant order in relation to an offender, the sentencing court must ensure that reasonable steps are taken to explain to the offender (in language that the offender can readily understand)— (a) the offender's obligations under the order, and (b) the consequences that may follow if the offender fails to comply with those obligations. (2) A relevant order is not invalidated by a failure to comply with this section. 17J Notice of relevant order to be given (1) As soon as practicable after a relevant order is made, the registrar or another officer of the sentencing court must cause notice of the order to be given to the offender and to Corrective S