An Overview of Sentencing in New South Wales and Victoria

In Australia, criminal matters and sentencing are dealt with differently between states. Each state has their own legislation that governs sentencing. As our firm provides legal services in both New South Wales and Victoria, we will look at sentencing in these two prominent states.

New South Wales

In New South Wales, the main legislation for sentencing is the Crimes (Sentencing Procedure) Act 1999 (NSW). This Act is the starting point for the court and outlines a range of available sentencing orders that the court may impose on adult offenders. The Act sets out:

• The purposes of sentencing
• Penalties that the court may be imposed
• Sentencing procedures

In New South Wales, most serious offences (otherwise known as indictable offences) are generally contained in the Crimes Act 1900 (NSW). Less serious offences (otherwise known as summary offences) are typically found in the Summary Offences Act 1988 (NSW). Other pieces of New South Wales’ legislation that sets out criminal offences include the Drug, Misuse and Trafficking Act 1985 (NSW), the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and the Road Transport Act 2013 (NSW).

Some sentencing outcomes an adults may receive from the commission of an offence, includes:

• Imprisonment
• Compulsory Drug Treatment Detention
• Intensive Corrections Order
• Community Corrections Order
• Fine
• Conditional Release Order
• Dismissal
• Discharge

Imprisonment

In New South Wales, the most severe sentencing outcome the court can impose is a term of imprisonment. Imprisonment involves the restriction of an offender’s freedom by requiring the person to serve their sentence in prison.

The court typically will set a non-parole period, this being the minimum amount of time that the person must serve in prison before they may be eligible for parole. If the court does not set a non-parole period, the offender will be required to serve their entire sentence in prison.

Compulsory Drug Treatment Detention

The Drug Court may make an order that an eligible offender serves a sentence of imprisonment by way of compulsory drug treatment detention. An eligible person must:

1. Be sentenced to a term of imprisonment that is no less than 18 months and no more than three years.
2. Convicted of at least 2 offences, 5 years preceding the sentence.
3. Has a long-term drug dependency.
4. Charge must be related to drug dependency.
5. Not convicted of murder, attempted murder, sexual assault, an offence involving serious violence or an offence involving the use of a firearm.
6. Not suffering a mental illness or disorder that is serious or leads to the person being violent.

A compulsory drug treatment program involves three stages:

1. Closed Detention – minimum of six months.
2. Semi-closed detention – minimum of six months.
3. Community custody – minimum of 6 months.

Intensive Corrections Order

The court may impose an Intensive Corrections Order (ICO) which involves a conviction and sentence of imprisonment. The term of imprisonment is served by way of ICO in the community. This may be for a term of up to three years, depending on how many offences the person has committed.

A person on an ICO must abide by standard conditions such as:

• no reoffending while on ICO; and
• supervision by a community corrections officer.

Further conditions the court can also impose include:

• home detention;
• electronic monitoring;
• curfew; and
• community service.

Community Corrections Order

A Community Corrections Order (CCO) may be imposed by the court to allow a person to serve their sentence in the community. The court may impose a CCO for a period of up to three years. It is a less severe sentence than imprisonment or ICO but more severe than a fine.

A CCO is a flexible sentencing outcome which can be tailored to the offender and their circumstances. Conditions that the court may impose include:

• supervision by community corrections officers;
• community service (up to 500 hours); and
• curfews.

Conditional Release Order

A Conditional Release Order (CRO) may be imposed by the court for a period of up to two years. A CRO involves a person being convicted for the offence without further penalties being imposed.

A person who is granted a CRO must abide by standard conditions such as:

• no reoffending while in CRO; and
• must appear before the court if called on to do so at any time in the duration of the CRO.

The court may also impose additional conditions to the CRO.

Fine

A fine requires a person to pay a monetary sum for the offence. The court may only impose a fine of up to the maximum number of penalty units that the offence carries. The value of one penalty unit in New South Wales is currently equal to $110.00.

Discharge

This sentencing outcome involves the court recording a criminal conviction is recorded but no further penalty is imposed.

Dismissal

The court has the discretion to make a finding of guilty but dismissing the charges without recording a conviction and imposing no further penalty.

Ancillary Orders

Ancillary orders may be imposed by the court on offenders in addition to the sentence they receive. These orders are not treated as independent sentencing options in NSW. Ancillary orders may be imposed for a variety of reasons and are made at the discretion of the court, dependent on the circumstances of the offence. Some ancillary orders the court may impose includes:

• compensation orders;
• driver licence disqualification; and
• non-association and place restriction orders.

Victoria

Victoria has a similar piece of legislation to New South Wales. In Victoria, the Sentencing Act 1991 (Vic) is the primary piece of legislation that affects sentencing for adult offenders. This Act sets out:

• The purposes and principles of sentencing
• The factors a court must consider in sentencing
• The hierarchy of sentencing options for adults

In Victoria, most indictable offences are contained in the Crimes Act 1958 (Vic). Most summary offences are contained in the Summary Offences Act 1966 (Vic). Some offences pieces of Victorian legislation that contains criminal offences include the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Road Safety Act 1986 (Vic).

In Victoria, some sentencing options that are available to an adult offender include:

• Imprisonment
• Drug and Alcohol Treatment Order
• Community Correction Order
• Fine
• Adjourned Undertaking
• Dismissal or Discharge
• Diversion

Imprisonment

Like New South Wales, imprisonment is the most severe sentencing outcome a Victorian court can impose. Imprisonment involves the restriction of an offender’s freedom by requiring the person to serve their sentence in prison.

The court typically will set a non-parole period, this being the minimum amount of time that the person must serve in prison before they may be eligible for parole. If the court does not set a non-parole period, the offender will be required to serve their entire sentence in prison.

Drug and Alcohol Treatment Order

A Drug and Alcohol Treatment Order (DATO) consists of a custodial sentence to be served in the community (not exceeding two years) and drug treatment with supervision.

Only the Victorian Drug Court can impose a DATO. This sentencing option cannot be granted to offenders who have committed sexual or violent crimes.

Participants of a DATO are required to:

• undergo drug and/or alcohol treatment;
• have regular meetings with the Drug Court;
• routinely submit to supervised drug and/or alcohol testing;
• attend educational, vocational, employment or other programs; and
• comply with DATO conditions such as residential and curfew conditions.

The successful completion of a DATO allows for a person to not have to serve any prison sentence.

Community Correction Order

A Community Correction Order (CCO) allows a person to serve their sentence in the community. It is a flexible sentencing outcome that can be imposed on its own or in combination with a term of imprisonment or a fine. A CCO may be for a term of up to five years, depending on how many offences the person has committed.

Those sentenced to a CCO are required to abide by standard conditions, such as:

• no reoffending whilst on a CCO;
• no leaving the state without permission;
• regular reporting to a community corrections centre; and
• compliance with any written directions instructed by the Secretary to the Department of Justice and Community Safety.

 A CCO must also contain at least one additional condition imposed at the discretion of the court. This additional condition may be imposed for all or part of the duration of the CCO.

Fine

A fine requires a person to pay a monetary sum for the offence. The court may impose a fine with or without recording a conviction. This differs to NSW where the court must also record a criminal conviction when imposing a fine.

Fines may also be imposed in addition to other sentencing orders, such as imprisonment (unless the offence is a Level 1 offence which carries a maximum penalty of life imprisonment). The court may only impose a fine of up to the maximum number of penalty units that the offence carries. In Victoria, the value of a penalty unit is currently set at $165.22.

Adjourned Undertaking

An adjourned undertaking may be granted by the court following a finding of guilty. This sentencing outcome allows a person to be released into the community unsupervised for up to five years. The court has the discretion to record or not record a conviction.

A person must agree to the undertaking and the conditions associated with it. This includes a promise to be of good behaviour and not to commit any further offences for the duration of the undertaking. The court may also add other conditions such as:

• A promise to get alcohol or drug treatment; or
• Participation in anger management counselling.

Dismissal or Discharge

Dismissal refers to the court proving the charge against a person but dismissing it without recording a conviction or imposing a penalty.

Discharge refers to the court proving the charge and making a find of guilty and recording a conviction, however imposing no further penalty.

Diversion

A person charged with an offence may be eligible for the Criminal Justice Diversion Program (Diversion). Diversion is not governed by the Sentencing Act 1991 (Vic). It is not a sentence that the court can impose but an option that allows a person to deal with their matter out of the court system and avoid a criminal record. It is the best outcome for an offender.

It is generally for less serious offences and is typically aimed at first time offenders, however a person with prior convictions may still be eligible. Diversion aims to reduce the likelihood of reoffending as those completing a diversion participates in counselling and/or treatment.

To be eligible for Diversion, both the prosecution and the person who committed the offence must agree to a diversion. The offender must also acknowledge and take responsibility for the offence. Before a judicial officer makes the decision to grant a diversion in court, the offender must fill out a questionnaire and participate in an interview.

If a judicial officer grants a diversion, they will create a diversion plan which may include conditions such as:

• Issuing an apology to the victim;
• Paying compensation to the victim;
• Attending counselling and/or treatment; and
• Donating a monetary sum to a charitable organisation.

No finding of guilt or criminal record will be recorded once the conditions of the diversion plan are complete.

Ancillary Orders

Similarly to NSW, Victorian courts can also impose additional orders to the sentence given to an adult offender. These additional orders are known as ancillary orders. The type of ancillary order that may be imposed in addition to the sentence depends on what type of offence a person has committed.  Some ancillary orders the court may impose includes:

• Restitution orders;
• Compensation orders;
• Confiscation and forfeiture of property;
• Disqualification and suspension from driving;
• Interlock devices; and
• Sex offender registration.

So what happens when you need help with your Criminal Law matter?

You call us at Banga Legal.