When
sentencing a defendant, the courts are guided by Parliament made law (commonly
known as the ‘Act’) and Court made
Law/Precedent (Commonly known as ‘Case Law’ or ‘Common Law’). These 2 types of
law help guide the Magistrate/Judge in the sentencing exercise.
As previously
discussed, once a person pleads guilty to a Criminal offence, there exists a
range of penalties, which are available to the Sentencing Court.
The
sentencing Court must make a decision as to which
penalty is appropriate in the scheme of things by looking at the relevant laws,
length of the penalty, the factors which are to be taken into account on
sentence, the Maximum Penalty made by parliament in relation to that particular
offence, the subjective circumstances of the defendant, the attitude of the
defendant and many other factors, to name a few.
The
following are the penalties available to the sentencing Court in NSW pursuant
to the Crimes (Sentencing Procedure) Act 1999 (NSW) and they include:
1.
Section
10(1)(a): A sentencing
Court may deal with a matter by way of a s10 (1)(a) by completely dismissing the charge(s) which means
that there will be no Criminal
Conviction recorded, no fine
imposed, no Good
behaviour bond(s) imposed etc.
2.
Conditional
Release Order (Without recording of
a conviction)– This
is a sentencing option available whereby the Judge/Magistrate deals with a
matter by way of NOT recording a Conviction on the condition that the defendant
enters into a bond, where the defendant agrees to be of Good behaviour, agrees not commit any offences for the entire
duration of the bond (Court can include any other condition(s) as the court may
deem fit) and this Good behaviour bond is usually for
a period of 1 to 2 years (Maximum length for this type of Bond is 2 years).
It should be noted that in all Criminal
matters, it is the court’s discretion only
to NOT record a conviction and this will usually depend on the defendant’s
personal/subjective circumstances, circumstances of the offence, defendant’s
prospects of rehabilitation, whether the defendant has any prior criminal
record, whether the defendant has entered a plea of guilty early in the
proceedings, whether the defendant has expressed remorse & contrition,
whether the defendant cooperated with the police at the time of the offence, to
name a few.
In some instances
however, the court may choose to deal with a matter by way of a Conditional
Release Order (With Conviction) and
this will occur in circumstances where the court choses
not to exercise it’s
vested discretion.
2. Section 10A: This type of penalty entails the recording of
a conviction only with no other penalty.
3.
Fines: This type of penalty is imposed after the
Magistrate or judge considers the defendant’s financial position and the
defendant’s ability to pay a fine.
4.
Community
Correction Order (CCO)– This
penalty is essentially a good behaviour bond, with a criminal conviction recorded and
the maximum length of this type of penalty can be as long as
3 years.
The sentencing
Judge/Magistrate can impose other conditions as part of this order in addition
to being of Good Behaviour, this includes either
undertaking unpaid work in the community at a location chosen by Probation and
Parole or Undertaking to follow a Mental Health plan or imposition of a Curfew,
Drug & Alcohol Abstention, place restrictions etc.
If a Judge or Magistrate
deals with your matter by way of a Community Corrections Order and imposes a
Community Service component, the maximum amount of
hours (if assessed as eligible/suitable for community service work) is 500
Hours.
5.
Intensive
Corrections Order (ICO)– The
‘ICO’ is a gaol sentence, which is served in the community. This is an
alternative to Full Time Custody and the sentencing Judge/Magistrate can impose
any of the following conditions such as Home
detention, Electronic Monitoring, Curfews, Community Service Work (Only if
Suitable), Alcohol/Drug Abstention/ Non association orders, Place restrictions,
enrollment into program(s)/treatment.
It should be noted that the maximum amount of hours (if assessed as eligible/suitable for
Community Service Work) is 750 Hours under this type of penalty.
6.
Full
Time imprisonment– This
penalty is a last resort as the court must
be satisfied that the section 5 Threshold
under the Crimes Sentencing Procedure Act 1999 has been crossed and particularly that no penalty other than
full time imprisonment in the circumstances is appropriate. As you already
know, this penalty is the most severe form of punishment in Australia.
Our team
of experienced solicitors are there for you and can help you answer all your
questions, so be sure to contact
Nicopoulos Sabbagh Lawyers.
*Please note that this page or any other pages
on our website (including any other social media platforms for Nicopoulos
Sabbagh Lawyers) are not to
be considered as a substitute for legal advice or even other professional
advice. It should also be noted that accessing of this information from this
website does not create a
client-lawyer relationship.