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.
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