By law, 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.
As such, there are a variety of more moderate penalties that the court can impose as an alternative to a custodial sentence.
Substantial sentencing reforms came into effect in September 2018. The new legislation affected many of these alternative penalties.
The sentencing amendments
The new legislation abolished good behaviour bonds, community service orders, suspended sentences and home detention orders.
These penalties were replaced by conditional release orders, community correction orders and strengthened intensive correction orders.
The new legislation also contains provisions that are specific to individuals who have committed a domestic violence offence.
Conditional release orders in sentencing
Condition release orders (CROs) replaced section 10 bonds. Upon finding an individual guilty of an offence, section 10 bonds allowed the court to dismiss charges without a conviction being recorded.
CROs still facilitate this, however, courts now have the added benefit of being able to impose specific conditions.
Conditions may include supervision by a Community Correction Officer or non-association requirements.
CROs can be imposed for a maximum of two years. The Court also has the discretion to record a conviction if it deems this an appropriate course of action.
CROs act as a warning to individuals who have committed a less serious offence, the object of which is to divert them out of the criminal justice system.
They may be imposed on first-time offenders who have committed less serious offences and who are unlikely to present a risk to the community.
In determining whether the imposition of a conditional release order is appropriate, the court will have regard to a number of factors, including:
- The person’s character, antecedents, age, health and mental condition
- Whether the offence is of a trivial nature
- The extenuating circumstances in which the offence was committed
- Any other matter that the court thinks proper to consider.
The types of offences that may attract a CRO include driving whilst disqualified, first-time drink driving or low-level drug possession.
Community correction orders in sentencing
Community correction orders (CCOs) replaced community service orders and good behaviour bonds.
They may be imposed for offences that do not warrant a custodial sentence or an intensive correction order yet are deemed too serious to attract a lower level penalty.
CCOs allow the court to deliver flexible sentences which are reflective of the nature of the offence that has been committed, as well as the nature of the individual responsible for committing the offence.
When imposing a CCO, the court has the ability to choose from a range of conditions to ensure the penalty is adequate. These conditions may include curfews, supervision by Community Corrections Officers and community service work. CCOs can be imposed for a maximum of three years.
Offences which may attract the imposition of a CCO include property damage, drug possession, theft or common assault.
Intensive correction orders in sentencing
Intensive correction orders (ICOs) were strengthened under the new legislation. They replaced home detention orders and suspended sentences, as well as existing intensive correction orders.
An ICO may be imposed as an alternative to a sentence of imprisonment. If an offender is being sentenced for a single offence, an ICO can only be imposed as an alternative to imprisonment if the term does not exceed two years. However, if the sentence is made in respect of an aggregate sentence of imprisonment, the duration of the term must not exceed three years.
Individuals who receive an ICO are subject to mandatory supervision alongside various other conditions that the court deems appropriate such as electronic monitoring, alcohol/drug bans, participating in rehabilitation programs, non-association requirements and community service work.
The safety of the community is the court’s primary concern when deciding whether to impose an ICO. The legislation specifically outlines that ICOs will not be available for a number of offences including
- A prescribed sexual offence,
- A terrorism offence; or
- Offences involving the discharge of a firearm.
The legislation also states that a domestic violence offender will not be sentenced to an ICO unless the court is satisfied that the victim or co-residents can be adequately protected.
Our lawyers have extensive experience appearing in sentencing proceedings and our team are dedicated to getting you the best result.