Sentencing

Question 1

Part 2

Name and sections

Answer 1

Part 2: Penalties that may be imposed

Sections 4 - 20

Question 2

Part 3

Name and sections

Answer 2

Part 3: Sentencing procedures generally

Sections 21 - 43

Question 3

Part 4

Name and sections

Answer 3

Part 4: Sentencing procedures for imprisonment

Sections 44 - 63

Question 4

Part 5

Name and sections

Answer 4

Part 5: Sentencing procedures for intensive corrections orders

Sections 64 - 73B

Question 5

Part 6

Name and sections

Answer 5

Repealed

Sections 74 - 83

Question 6

Part 7

Name and sections

Answer 6

Part 7: Sentencing procedures for community corrections orders

Sections 84 - 91

Question 7

Schedule 1 CSPA

Answer 7

Existing life sentences

Question 8

What must a court consider before sentencing an offender to imprisonment?

Answer 8

Under s 5(1) CSP Act, a court must not sentence an offender to imprisonment unless satisfied that, after considering all possible alternatives, that no other sentence is appropriate.

Under s 5(2) CSP Act, if a court sentences an offender to imprisonment for less than 6 months, it must provide reasons why an Intensive Correction Order or other intervention program is not appropriate.

Question 9

What are the non-custodial alternatives to sentencing?

Answer 9

1. A community correction order made under s 8 and in accordance with Part 7 CSPA.
2. A conditional release order made under s 9 and in accordance with Part 8 CSPA.
3. A dismissal of charge and conditional discharge of offender under s 10 of the CSPA; and
4. A conviction of the offender under s 10A CSPA and disposition of the proceedings without imposing any other penalty.
   Probably the following as well:
5. A non-association or place restriction order; and
6. An intervention program order.

Question 10

What factors is a court to have regard to when deciding whether to make a conditional release order?

Answer 10

The factors outlined in s 9(2) CSP Act as follows:

(a) Person’s character, age, antecedents, health and mental condition;
(b) Whether the offence is of a trivial nature;
(c) Extenuating circumstances in which the offence was committed; and
(d) Any other matter the court thinks appropriate to consider.

Also, the court cannot make a conditional release order if it proceeds to conviction or discharges the offender under s 10(1)(b) CSP Act.

A court also cannot impose a fine and a conditional release order in respect of the same offence: s 9(3) CSP Act.

Part 8 applies to the imposition of a conditional release order.

Question 11

What factors must a court have regard to when considering whether to make an order under s 10(1) CSP Act.

Answer 11

The factors outlined in section 10(3)(a) - (d) which are:

• the person’s character, antecedents, age, health and mental condition;
• the trivial nature of the offence;
• the extenuating circumstances in which the offence was committed;
• any other matter the court thinks proper to consider.

Other considerations include those outlined in s 10(2)(a) and (b) which state when an order under s 10(1) CSP Act may be made, which are:

• if the court considers it inexpedient to inflict any punishment (other than nominal punishment) on the defendant; or
• the court considers it expedient to discharge the person on a conditional release order.

Question 12

What are the custodial forms of punishment available to a sentencing court under the CSP Act?
(3 marks)

Answer 12

1. Imprisonment under s 5 CSP Act;
2. Compulsory drug treatment detention under s 6 CSP Act; and
3. Intensive correction order under s 7 CSP Act.

Question 13

Under what circumstances may a sentencing court make a non-association or place restriction order?
( 2 - 3 marks)

Answer 13

A non-association or place restriction order may only be imposed if the offence (or one of the offences in respect of an aggregate sentence) is punishable by imprisonment of 6 months or more - s 17A(1) CSP Act.

A court may make a non-association or place restriction order if reasonably satisfied that it is necessary to ensure that the offender does not commit any further offences.

The order cannot be imposed if the only other penalty for the offence is an order under ss 10 or 11 CSP Act - s 17A(4) CSP Act.

The term of the order is not limited by any term of imprisonment for the offence, but cannot be imposed for a period of more 12 months - s 16(5) CSP Act.

The order is also subject to the provisions of Part 8A CSP Act.

Question 14

Part 8 and sections

Answer 14

Part 8: Sentencing procedures for conditional release orders

Section 94 - 100

Question 15

Part 8A and sections

Answer 15

Part 8A: Non-association and place restriction orders

Sections 100A - 100H

Question 16

Part 8B (don’t worry about sections)

Answer 16

NSW Sentencing Council

Question 17

Part 8C and sections

Answer 17

Sentencing procedures for intervention program orders

100M - 100T.

Question 18

What do sections 17B - 17D CSPA deal with?

Answer 18

Assessment reports

Question 19

What are the principles in relation to assessment reports?

Answer 19

Under s 17(1)(a) and (b), a sentencing court MAY request a sentencing report on an offender but only:

• After finding the offender guilty and before sentencing - s 17(1)(b)(i); or
• When considering or re-considering sentencing as outlined in s 17C(1)(b)(ii) - (vii).

However, a sentencing court MUST obtain a sentencing report if it intends to make an intensive correction order (unless satisfied that there is already sufficient information before it), or is imposing a home detention order or it is imposing a community service work condition on an intensive correction order or community correction order - s 17D(1), (2) and (4).

Question 20

What is the basic principle in relation to s 17F CSP Act?

Answer 20

That only one order may be in force at any one time in respect of a single offence, but if there is more than offence, more than one order can be in place.

If there are any inconsistencies between orders, the hierarchy of what prevails over what in order is:

• Intensive correction order;
• Community correction order; and
• Conditional release order.

s 17I requires that an explanation of the relevant order be given to the offender in a manner that they can understand.

s 17J requires the court to give notice of the order to the offender and Corrective Services NSW.

Question 21

What are the basic principles of s 17H CSP Act?

Answer 21

1. Curfew orders can be imposed in respect of intensive correction orders and community correction orders but not conditional release orders.
2. A curfew condition cannot be longer than 12 hours per day.

s 17I requires that an explanation of the relevant order be given to the offender in a manner that they can understand.

s 17J requires the court to give notice of the order to the offender and Corrective Services NSW.

Question 22

What is the relevant principles in relation to the interpretation of PROVISIONS imposing penalties?

Answer 22

Under s 18(1) CSP Act, if a penalty is specified at the end of the section or sub-section of an act, it is taken to relate to the section or sub-section respectively.

Question 23

What is the effect of the alteration to the penalty for an offence to a person who has been convicted at the time of the alteration but has not yet been sentenced?

Answer 23

Under s 19 CSP Act, if the alteration to the act increases the penalty, it only applies if the person committed the offence after the increase - s 19(1) CSP Act.

If the alteration decreases the penalty, it applies to offences committed before the decrease, provided the offender has not already been sentenced.

Question 24

What is the provision against double jeopardy?

Answer 24

Section 20 CSP Act.

Question 25

Under what section does the sentencing court have the general power to reduce terms of imprisonment or fines and impose sentences of lesser terms?

Answer 25

Section 21(a) and (b) CSP Act.

Question 26

Where are the aggravating and mitigating factors that should be taken into account in sentencing?

Answer 26

Section 21A(2) - Aggravating factors; and
Section 21A(3) - Mitigating factors.

Question 27

When can good character and lack of previous convictions not be taken into account as mitigating factors?

Answer 27

Under s 21A(5) when the offender is convicted of a child sexual offence and the good character or lack of previous convictions was of assistance in committing the offence.

Question 28

What are some factors that the court can take into account to reduce a sentence, other than the specified mitigating factors and the mandatory sentencing discounts under s 25D CSP Act?
(4 marks)

Answer 28

Under s 22(1) CSP Act, if an offender pleads guilty to a matter not being dealt with on indictment, the court is to consider:

• the fact he/she has pleaded guilty;
• timing of the guilty plea; and
• circumstances of the guilty plea.

Further, Under s 22A, court can reduce sentence for facilitating the administration of justice.

Under s 23 CSP Act, court can consider any assistance provided to law enforcement, but must consider the relevant factors outlined at s 23(2)(b) - (i) .

Under s 24 CSP Act, the court can also consider:

• Any time the offender was held in custody for the offence - s 24(a); and
• Any time already served under a community correction order, conditional release order or intervention program 24(b).

Question 29

What section deals with the restrictions on the orders that the Local Court can make if the offender is absent?
(1 mark)

Answer 29

Section 25 Crimes (Sentencing Procedure) Act.

It can barely do anything, it needs to issue a warrant for the offenders arrest to have them brought before the court.

Question 30

Is the court to take into account mandatory requirements for supervision and other prohibitions in sentencing? Why / why not?
(1 - 2 marks)

Answer 30

Section 24A CSP Act states that mandatory requirements for supervision and other prohibitions are to be disregarded in sentencing.

Question 31

Name two other penalties / consequences of conviction that are to be disregarded as mitigating factors of penalties and where they sit?
(2 marks)

Answer 31

1. Confiscation of assets and forfeiture of proceeds of crime are to be disregarded in sentencing under s 24B CSP Act.
2. Loss of parliamentary pension is to be disregarded in sentencing under s 24C of CSP Act.

Question 32

Outline the principles that apply to sentencing an offender for child sexual offences and the relevant sections.

(3 - 5 marks)

Answer 32

Under s 25AA(1) - (4) of the CSP Act:

1) A court is to sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices in place at the time of sentencing and not the time of the offence.
2) However, the standard non-parole period is the non-parole period (if any) that applied at the time of the offence.
3) During sentencing, the court is to have regard to the trauma of child sexual abuse to the victim as understood at the time of sentencing; and
4) Section 25AA does not affect the operation of s 19 CSP Act.

Question 33

Outline 3 types of offenders / offences to which the mandatory sentencing discounts do not apply.
(3 marks)

Answer 33

1) Offences that are not being dealt with on indictment - s 2 25A(1) CSP Act
2) An offence under a law of the Commonwealth, unless the regulations otherwise provide - s 25A(1)(A)
3) An offence committed by a person who was under the age of 18 when the offence was committed and under the age of 21 when charged before the court with the offence - s 25A(1)(b).

Question 34

Outline the mandatory sentencing discounts for early guilty pleas being dealt with on indictment.

Answer 34

As per s 25D(2)(a) - (c) of CSP Act, the mandatory sentencing discounts are as follows:

• A reduction of 25% to the sentence that would have been imposed, if the plea is accepted by a Magistrate in committal proceedings for the offence;
• A reduction of 10% to the sentence that would have been imposed, if the offender was committed for trial and the offender:
  (i) pleaded guilty at least 14 days before the first day of trial; or
  (ii) complied with pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender
  (c) a discount of 5% to the offence that would have otherwise been imposed if the above circumstances do not apply.

Note that section 25D(3) applies discount variations to new count offences.

Question 35

What sections of the Crimes (Sentencing Procedure) Act govern victim impact statements?
(1 mark)

Answer 35

Sections 26 - 30 Crimes (Sentencing Procedure) Act.

Question 36

What should a Victim Impact Statement include?

3 - 5 marks

Answer 36

The contents of a victim impact statement is outlined by s 28 of the CSP Act, and states that a primary victim, or member of the primary victim’s immediate family (as defined) may prepare a statement that contains particulars of harm suffered as a result of the offence in relation to:

(a) any personal harm;
(b) any emotional suffering or distress;
(c) any harm to relationships; or
(d) any economic loss or harm that arises as a result of those things in s 28(1)(a) - (c).

The formal requirements of a victim impact statement, as per s 29(1) - (4) are that:

• Must be in writing;
• Must comply with the requirements imposed by regulation;
• May, subject to regulation, include photographs, drawings / other images;
• may relate to more than one victim;
• Statement is not mandatory.

Question 37

As a defence counsel in criminal proceedings, how would you advise your client who says that he has other offences that he wants taken into account (think s 32 CSP Act)?

Answer 37

I would request that the prosecutor file a list of additional charges in accordance with s 32(1) CSP Act, that the offender has been charged with, but not convicted of.

This is because, under s 35 CSP Act, if a further offence is taken into account under this division, no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.

Under s 32(2), a list of additional charges may be filed at any time after the court finds the offender guilty of the principal offence and before the court deals with the offender for the principal offence.

Question 38

In what circumstances may a court reopen proceedings and change its sentence?

Answer 38

Under s 43(1) CSP Act, the court may reopen criminal proceedings where it has:
(a) imposed a penalty that is contrary to the law; and
(b) failed to impose a penalty that is required to be imposed by law,
regardless of whether the person has been convicted of an offence in the proceedings.

s 43(2) permits the court, after giving the parties a reasonable opportunity to be heard, to:

(a) impose a penalty that is in accordance with the law; and
(b) if necessary, amend any relevant conviction or order.

Question 39

Under what section of the CSP Act is the discretion of the court in relation to sentencing preserved?

Answer 39

Section 40 Crimes (Sentencing Procedure) Act.

Question 40

What are the limitations for a court when setting a non-parole period?

Answer 40

Under s 44(2), the balance of the term of imprisonment must not exceed one-third of the non-parole period, unless there are special circumstances.

Under s 44(2B), the balance of the term of imprisonment for aggregate sentences, must not exceed one-third of the non-parole period, unless there are special circumstances.

Under s 46 CSP Act, the court may not set a non-parole period for a sentence of imprisonment if the term of imprisonment is 6 months or less.

Question 41

Under what circumstances may a court decline to set a non-parole period? What section of the Act applies?

Answer 41

Under s 45(1)(a) - (c) of the CSP Act, a court may decline to set a non-parole period if it appears to the court appropriate to do so:

(a) because of the nature of the offence or antecedent character of the offence;
(b) because of any other penalty previously imposed on the offender; or
(c) for any other reason that the court considers sufficient.

Under s 45(2) CSP Act, if a court declines to set a non-parole period for a sentence of imprisonment, it must make a record of its reasons for doing so.

Question 42

When does a sentence commence?

Answer 42

Under s 47(1) CSP Act, a sentence of imprisonment commences on the day on which the sentence is imposed. This is subject to the court directing otherwise under s 47(2) and subject to the operation of any intensive correction order under s 71.

Question 43

What is the limit that the Local Court can impose for an aggregate sentence?

Answer 43

5 years on aggregate as per s 53B CSP Act.

Question 44

What sections govern the standard non-parole periods?

Answer 44

Sections 54A - 54C of the CSP Act.

Question 45

What are the principles that apply to concurrent sentencing?

Answer 45

Under s 55(1) CSP Act, in the absence of a direction otherwise, an offender being sentenced to a further sentence when already incarcerated, or where multiple sentences of imprisonment are being imposed, are to be served concurrently.

But the court may direct that the sentences be served consecutively - s 55(2) CSP Act.

Under s 55(5)(a), (b) and (c), this section doesn’t apply to offences committed while a convicted inmate of a correctional facility (and further outlined in s 56 CSP Act), assault on a juvenile justice officer, or escape from lawful custody (and further outlined in s 57 CSP Act).

Question 46

What are the restrictions on the Local Court’s power to impose concurrent or consecutive sentences?

Answer 46

Under s 58(1) CSP Act, the Local Court cannot impose a new sentence of imprisonment to be served consecutively (or partly consecutively, partly concurrently) if the date on which it will end is more than 5 years after the date on which the existing sentence began.

Question 47

Under what circumstances may a court impose a provisional sentence?

Answer 47

Provisional sentences relate to child offenders convicted of murder.

Under s 60B(1) CSP Act, a court may impose a provision sentence for murder if:

(a) Offender is less than 16 years old at time of offence; AND
(b) Offender is less than 18 years old when the provisional sentence is imposed;
(c) Proposed sentence includes a term of imprisonment; AND
(d) Court does not consider it appropriate to impose an ordinary sentence on the offender because, the information available does not permit a satisfactory assessment of the offender is likely to develop a serious personality or psychiatric disorder or serious cognitive impairment so that the court cannot adequately assess:
(i) Whether the offender is likely to re-offend; and
(ii) The offender’s prospects of rehabilitation.

Question 48

Outline the procedure involved in provisional sentencing?

Answer 48

Under sections 60C - 60I of the Crimes (Sentencing Procedure) Act, the following is to occur:

• a court may request and consider a case place - s 60C CSP Act;
• Provisional sentence is subject to review and re-determination - s 60D CSP Act;
• A court must review an offender’s provisional case plan from time to time and at least every 2 years to obtain progress reports - s 60E;
• Under s 60HA final sentence must be imposed within / before:
  (a) 5 years after the date the provisional sentence was first imposed; or
  (b) 1 year before the date on which the non-parole period (if any) for the provisional sentence ends.
• A provisional sentence may be appealed under s 60I and the appellate court has the power to vary the provisional sentence or substitute a new provisional, or new final sentence. The requirement to conduct progress reviews falls back on the original court, even if the provisional sentence is varied by an appellate court.

Question 49

What are the offences for which the court may impose mandatory life sentences?
What sections govern this?

Answer 49

Murder and serious heroin or cocaine trafficking offence.
s 61(1) and (2) of CSP Act.

Question 50

What are the circumstances under which the court ought to impose a mandatory life sentence?

Answer 50

Under s 61(1) CSP Act, the court is to impose a mandatory life sentence for murder if satisfied that the level of culpability in the commission of the offence is so extreme so that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of that sentence.

Under s 61(2) CSP Act, the court is to impose a mandatory life sentence for a serious heroin or cocaine trafficking offence f satisfied that the level of culpability in the commission of the offence is so extreme so that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of that sentence AND

• the offence involved:
• a high degree of planning; and
• the use of other people directed by the offender in the commission of the offence; and
• the offender was solely or principally responsible for planning, organising and financing the offence; and
• the heroin or cocaine was of a high degree of purity; and
• the person committed the offence solely for financial reward; and
• the person is not under 18 years old (this last on is at s 61(6) CSP Act).

Question 51

What is the paramount consideration for the court when determining whether to make an Intensive Correction Order?
What is the court also to consider?

Answer 51

Community safety, as per section s 66(1) CSP Act.

The court is also to assess whether making the order or serving the sentence by way of full time detention is more likely to address the offender’s risk of re-offending - as per s 66(2) CSP Act.

The court is also to consider s 3A CSP ACt, purposes of sentencing and any common law sentencing principles - as per s 66(3) CSP Act.

Question 52

What sentences are an ICO not available for?

Under what section?

Answer 52

As per section s 67 CSP Act, ICO’s are not available for the offences listed at s 67(1)(a) - (h) or (2), which includes:

• Murder;
• Prescribed sexual offences;
• Terrorism offences;
• A number of others as listed.

ICO’s are also not available if the duration of the term of imprisonment exceeds:

• 2 years for a single offence, as per s 68(1) CSP Act; or
• 3 years for an aggregate sentence, as per s 68(2) CSP Act.

ICOs cannot be made in respect of an offender who resides, or intends to reside in another state, unless the state or territory is declared by the regulations as an approved jurisdiction.

Question 53

What are the conditions that are to be imposed for an Intensive Correction Order?

Answer 53

As per s 72 CSP Act, an ICO is subject to:

(a) standard conditions imposed under s 73 CSP Act;
(b) any additional conditions imposed under s 73A CSP Act;
(c) any further conditions imposed under s 73B CSP Act; and
(d) any conditions imposed by the parole authority.

Question 54

What are the standard conditions for ICO?

Answer 54

The standard conditions that must be imposed for an ICO under s 73(1) and (2) of the CSP Act are:

• That the offender must not commit any offence; and
• That the offender must submit to supervision by a community corrections officer.

Question 55

Does the sentencing court have to impose any additional conditions when sentencing an offender to an ICO?
What are the additional conditions for an ICO?

Answer 55

Under s 73A(1), the sentencing court must impose at least one additional condition when sentencing an offender under an ICO, unless satisfied that there are exceptional circumstances as per s 73A(2), in which case the court must make a record of its reasons for not imposing an additional condition.

The additional conditions available to a sentencing court are set out at s 73A(2)(a) - (h) and include:

• Home detention condition;
• Electronic monitoring condition;
• Curfew condition;
• Community service work condition;
• Rehab or treatment condition;
• Abstention condition requiring abstention from alcohol or drugs;
• Non- association order;
• Place restriction order.

Question 56

What process is a sentencing court likely to take when considering whether to impose an ICO?

Answer 56

They are likely to:

1) Confirm that the offence is one for which an ICO can be made, as per s 67 CSP Act
2) Confirm that the sentence doesn’t exceed 2 years or 3 years for aggregate sentence as per s 68 CSP Act;
2) Review the assessment report;
3) Impose an ICO if satisfied that there are no community safety concerns, full time detention is not more likely to address concerns about re-offending;
4) Impose:
a) The standard conditions as per s 73 CSP Act;
b) At least one additional condition as per s 73A, unless there are exceptional circumstances; and
c) Any further conditions it considers appropriate in the circumstances.

Question 57

Outline the types of conditions that may be imposed for a community correction order? Reference the sections that apply

Answer 57

As per s 87 CSP Act, a sentencing court is to impose the following conditions under a community correction order as follows:

(1) Must impose the standard conditions as per s 88 CSP Act;
(2) May impose any of the additional conditions at s 89(2) CSP Act;
(3) May impose any further conditions under s 90 CSP Act, provided the further conditions are not inconsistent with the terms of the additional conditions.

Question 58

Identify 5 additional conditions that a sentencing cannot impose in relation to a community correction order.

Answer 58

As per s 89(3) CSP Act, additional conditions of the following kind cannot be made in respect of a community correction order:

(a) Home detention condition;
(b) Electronic monitoring condition;
(c) Curfew condition exceeding 12 hours per day.

Then there are more specific restrictions based on the contents of an assessment report etc.

Question 59

Outline the types of conditions that may be imposed for a conditional release order? Reference the sections that apply

Answer 59

As per s 97(a) - (c) CSP Act, the conditions that are to be imposed in respect of a conditional release order are:

(a) Standard conditions as per s 98 CSP Act;
(b) May impose any of the additional conditions as per s 99(1) and (2) CSP Act, but not those identified at s 99(3) CSP Act; and
(c) May impose any further conditions as per s 99A, provided they are not inconsistent with the additional conditions imposed.

Question 60

Can a sentencing court impose a non-association order that applies to an offender’s family? Explain

Answer 60

Under s 100A(1) CSP Act, a non-association order may not extend to include any member of the offender’s close family (as defined in s 100A(3) CSP Act.

However, s 100A(1A) provides an exception to that rule if the court considers that exceptional circumstances exist because there is reasonable cause to believe that the offender may be involved in conduct that could involve the commission of a further offence if they associate with that family member.

Question 61

What Parts/Sections of the CSP Act need to be considered when answering a question on non-association orders?

Answer 61

s 17A CSP Act and Part 8A CSP Act.

Question 62

What Part of the CSP Act relate to the sentencing procedure for Intervention Program Orders?

Answer 62

Part 8C