In NSW, the Courts can impose the following penalties:
Section 10 Dismissal
The expression “section 10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction. Because there is no conviction, there is no criminal record.
There are three types of section 10s:
- Section 10 dismissal – Section 10(1)(a)
A section 10 dismissal involves the court dismissing the offence without any conditions. The matter is completely over as soon as you walk out of the Court room.
- Conditional dismissal with a good behaviour bond – Section 10(1)(b)
A Court can dismiss a charge under s10, but at the same time put you on a good behaviour bond for up to 2 years. The bond can have any conditions which the Court wants you to abide by. At a minimum these include:
- That you be of good behaviour (that is, that you do not commit any further offences)
- That you advise the Court of any change of address and
- That you appear before the Court if called upon to do so
If you breach any conditions of the bond, the Court can call you back, revoke the bond and impose a different sentence for the offence. This is the most popular way that a court deals with an offender under section 10.
3. Conditional dismissal with an intervention program – Section 10(1)(c)
This refers to a section 10 which is conditional on you entering an intervention program of some kind (such as the Traffic Offenders program), completing that program successfully and complying with any action plan that results from that program.
By far the most common penalty imposed by the Local Court is a fine. When deciding the amount of any fine the Magistrate or Judge should consider your financial situation and your ability to pay any fine they set.
Typically, the amount of a fine is calculated by reference to a number of penalty units. Currently, section 17 of the Crimes (Sentencing Procedure) Act 1999 stipulates that one penalty unit equals $110.00.
The Magistrate or Judge that sets the fine is likely to tell you that you only have 28 days to pay the fine. This is the maximum time that the Magistrate or Judge can set to repay the fine. However, the court registry is likely to give you more time to pay the fine if you cannot pay it within that time.
To apply for extra time to pay the fine is a simple process. You attend the court registry where the fine was set and ask for an application for time to pay form. You fill out this form and give it to the court registry staff who make a decision. It is our understanding that extra time to pay applications are normally approved.
Good Behaviour Bond
A good behaviour bond is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is 5 years.
Some conditions that may be imposed
- Probation Service Supervision
The court can order that you be Supervised by an officer of the NSW Probation Service. Normally a court will order that the supervision remain in place for as long as the Probation Service deem it necessary
The court can order that you attend for drug or alcohol abuse counselling as a condition of a good behaviour bond.
- Residence at a rehabilitation centre
That you live at a particular rehabilitation centre for a period of time as a condition of the bond.
The court cannot make a condition of a bond that you pay compensation to the victim of a crime.
If you obey the conditions of the good behaviour bond for the time set by the court, there is no further penalty. However, if you do not obey the conditions the court may summons you appear before the court to be re sentenced for the offence.
If you are summonsed to court for a breach of the good behaviour bond the court can do any one of the following:
- decide to take no action;
- vary the conditions of the bond;
- impose further conditions on the bond; or
- revoke the bond and re-sentence you to a tougher penalty.
For most offences the court can impose both a fine and good behaviour bond.
Deferral of Sentence
A court that finds a person guilty can make an order adjourning the proceedings for a maximum of 12 months for a number of specific purposes. The purposes which a court can adjourn the proceedings are set out in section 11(1) of the Crimes (Sentencing Procedure) Act 1999. These purposes are set out below:
- Assessing the offender’s capacity and prospects for rehabilitation; or
- Allowing the offender to demonstrate that rehabilitation has taken place; or
- Assessing the offender’s capacity and prospects for participation in an intervention program, or
- Allowing the offender to participate in an intervention program, or
- For any other purpose the court considers appropriate in the circumstances
Community Service Order
A Community Service Order (CSO) involves either unpaid work in the community at a place specified by Probation and Parole or attendance at a Centre to undertake a course, such as Anger Management. In order to be eligible for a CSO you have to be assessed by an officer of the Probation service as suitable to undertake the order. Certain medical conditions could exclude you from being suitable to undertake a work order. Federal Courts also have the power to impose a community service order for commonwealth offences. (s 20AB Commonwealth Crimes Act 1914).
The maximum number of hours of community service that a court can impose is:
- 100 hours: where the maximum term of imprisonment that can be set by the court does not exceed six months.
- 200 hours: where the maximum term of imprisonment that can be set by the court does not exceed 1 year.
- 500 hours: where the maximum term of imprisonment that can be set by the court exceeds 1 year.
You cannot be directed to perform more than eight hours of community service work in any one day or participate in a development program for more than five hours in any one day, except by agreement with the assigned officer.
A suspended sentence (Section 12 good behaviour bond) is a gaol sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed, the gaol sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to 2 years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is an order of the court requiring you to do 32 hours of community service a month, to comply with certain conditions and to be strictly supervised by Community Corrections.
A court can only impose an ICO if they conclude that the only appropriate penalty is a sentence of ‘imprisonment’. A sentence of imprisonment doesn’t necessarily mean you’ll go to prison, it can be either a suspended prison sentence, an ICO, home detention or full time prison.
If the court is considering an ICO, it must refer you to Corrective Services for assessment to help determine whether an ICO is appropriate. Not everyone is determined to be suitable for an ICO by Corrective Services. Corrective Services may find that you aren’t suitable if you are unable to reside at a specific address or if you can’t complete community service work because of medical reasons. Even if you are deemed suitable the court won’t necessarily impose an ICO and can opt for a different sentence of imprisonment.
Courts cannot impose an ICO for:
- sentences over 2 years;
- certain sex offences; or
- people deemed unsuitable for an ICO by Corrective Services.
Home detention is an alternative to full-time imprisonment. In effect, the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring.
Home detention orders are limited to a maximum period of 18 months. This includes any time that the court may order be spent on parole.
According to section 5 of the Crimes (Sentencing Procedure) Act 1999, 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.
Discharge Without Conviction
Discharge without conviction occurs where the court is satisfied that the charge is proven against the federal offender, but will not record a conviction. In order to benefit from this order, the court must be satisfied of two things. Having regard to the either the:
- character, criminal history, age, health or mental condition of the person charged:
- The trivial nature of the offence, or
- Extenuating circumstances to the commission of the offence
- It would be inappropriate to inflict any punishment on the offender: s. 19B(1)(b) Crimes Act 1914 (Cth).
If the court is satisfied that is inappropriate to inflict any punishment, it will either dismiss the charge unconditionally, or discharge the person without a conviction on condition they enter into a good behaviour bond for up to three years. Remember, even when discharged without conviction, a court may order restitution if appropriate to the charge.
Federal courts have the power to order restitution in all cases, either instead of or additional to another type of sentence.
Examples of a restitution order include payment to a victim who has sustained injury, compensating for loss, or repaying a sum which has been defrauded: 20AB (4)(b) Crimes Act 1914 (Commonwealth).
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