Introduction
For the vast majority of people, their first exposure to the New South Wales justice system occurs when they are charged with offences that are dealt with at the Local Court. This is because most offences committed each year are summary in nature, and as such are not serious enough to warrant appearances before the District Courts or the Supreme Court. Therefore, it is important that defendants understand the broad range of penalties that are available to Magistrates at the Local Courts, when they sentence someone on the basis of various sentencing principles. The sentencing options available to the Local Courts are either non-custodial or custodial in nature, with the former usually being given preference where possible.
Non-custodial sentences
- Fines
Fines are the most commonly imposed penalties by Magistrates at Local Courts, and they may be imposed in addition to Good Behaviour Bonds or sentences for imprisonment. The defendant’s current financial circumstances and other relevant considerations may be taken into account by the Local Court when determining the size of the fine. Once a defendant has been ordered to pay a fine, they are given a maximum of 28 days to pay the amount in full, but the court registry can extend this if the offender is not able to pay within the time period. However, if a defendant refuses to pay a court-ordered fine, it may possibly result in the seizure of assets, wage deductions, an order of community service, or in relation to traffic fines, suspension or cancellation of their driver’s licence or vehicle registration.
- Bonds
Rather than imposing a fine or other penalty, a Local Court may elect to make an order directing a person to enter into a good behaviour bond for a specified period of time, not exceeding a maximum duration of five years. These bonds obligate defendants to be of good behaviour, and the court may also impose further conditions that must be complied with for the duration of the bond. These include a condition that the defendant be supervised by an officer of the NSW Probation Service, for as long as the Service deems it appropriate. The court may also include a condition that defendants attend counselling to help treat their alcohol or drug-abuse problem, or defendants may be ordered to reside at a rehabilitation centre to receive more intensive treatment.
There are a wide variety of bonds available in the Local Court, such as the bond stated in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows Magistrates to direct offenders to enter into a good behaviour bond for less than five years, after convicting them of an offence. If the conditions of the section 9 bond are breached or the defendant commits another offence, then the Magistrate may cancel the bond and impose a sentence. There are also section 11 bonds, which allow Magistrates to find an offender guilty of an offence, but suspend the sentence for a period of 12 months, in order to assess their capacity and prospects for rehabilitation, to demonstrate that rehabilitation has taken place or for any other reason the court considers appropriate in the circumstances. Local Courts may also issue section 10 and section 12 bonds, which are explained in the following sections.
- Dismissal and conditional discharge under Section 10
Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nonetheless discharge that person without proceeding to conviction. Because there is no conviction recorded, a major benefit of section 10 is that it means that the defendant will not have a criminal record. The court will take into account the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any other extenuating circumstances when determining whether to grant an outright dismissal. Once a decision has been made to make a section 10 order, as well as dismissing the relevant charges, the Local Court may also require the defendant to be subject to a good behavior bond, or to enter into an intervention program.
- Community Service Orders
Local Courts may also impose a Community Service Order (CSO), as an alternative to the offender serving a sentence of imprisonment. However, it should be noted that the Court cannot impose a good behavior bond and a Community Service Order for the same offence. To be considered eligible for a CSO, offenders must first receive an assessment from the Probation and Parole Service of their suitability. People subject to a CSO are required to perform community service work for a specified number of hours under the supervision of an officer from the Probation and Parole Service. Offenders may also be required by the courts to undergo alcohol or drug-testing, or to attend counseling programs such as Anger Management. All CSOs must be fully completed within 12 months for orders of below 300 hours, or within 18 months for orders consisting of more than 300 hours. If the Local Court is not fully satisfied with the work done, or if the offender fails to attend for community service, the Magistrate may then completely revoke the Community Service Order and resentence the offender for the original offence.
Custodial Sentences
- Suspended sentences under Section 12
A Local Court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court can then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed- it is only the execution of the sentence that is suspended. However, suspended sentences are not available to offenders where they are also subject to another sentence of imprisonment. Also, if the Local Court decides to later revoke the sentence for any reason, it may choose to reimpose the original sentence of imprisonment on the offender, which can be served full-time, part-time or through home-detention. The court is obligated to revoke the order if there is a breach of the bond under section 98(3), unless it is satisfied the offender’s failure to comply with the conditions of the bond was “trivial in nature”, or the offender had a valid reason.
- Home Detention
Local Courts may issue orders for the home detention of offenders, allowing them to serve their sentence in their homes rather than gaol, provided that they have not been sentenced to a period of imprisonment of more than 18 months. An application for home detention should be made immediately after offenders are sentenced to full-time imprisonment. The conditions imposed by Home Detention Orders are generally extremely onerous, with strict supervision through random phone checks, unannounced visits, and regular urinalysis. Offenders are also prohibited from drinking alcohol or using illegal drugs if under a Home Detention Order.
Furthermore, Home Detention Orders do not apply to certain types of offences including sexual assault of adults or children, any offence involving the use of a firearm, assaults occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), stalking or intimidating a person with the intention of causing the person to fear personal injury, and domestic violence offences. In addition, Home Detention Orders cannot be given to those offenders who have the previously mentioned offences on their criminal records. The Parole Board is responsible for home detention, and if the offender is in breach of the conditions of the order, the Board may revoke the Home Detention Order and issue a warrant for their arrest and return to custody.
- Periodic Detention
A Local Court that imposes a sentence of imprisonment on an offender of less than three years, has the option of directing that the sentence be served through periodic detention. Periodic detention, or weekend detention, involves the offender being imprisoned for two days every week at a detention centre, for the duration of the sentence’s term. Before an offender can be considered eligible for this program, their suitability must first be assessed by a presentence report from an officer of the Probation and Parole Service. Furthermore, periodic detention is not available to offenders who have previously served full-time imprisonment for more than six months, or who have been imprisoned for more than three years, or for offenders imprisoned for prescribed sexual offences. The Parole Board is responsible for periodic detention, and if the offender is in breach of the conditions, the Board may revoke their periodic detention order and issue a warrant for their arrest and return to custody.
- Full-time Imprisonment
Full-time imprisonment should always be the sentence of last resort for courts, with the maximum available term of imprisonment that can be sentenced in Local Courts being two years. When the court sentences an offender to a term of imprisonment, it is required to set a non-parole period specifying the minimum period for which the offender must be held in custody, and then set the balance of the sentence. The balance of the sentence cannot exceed one-third of the specified non-parole period, unless the court believes there are special circumstances that justify it.
Getting Help
Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000
Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev