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Homebuyer’s Guide to Conveyancing
Buying your first home can be a confusing process, particularly when it comes to conveyancing. Taking your first step on to the property ladder can be an exciting time. But for those who have never been involved in a property purchase, the conveyancing process can often seem hard to understand. What i...
If you go to Court and the Court says you have broken the law, you will be convicted. The Court will tell you what happens next, whether you go to jail, pay a fine or are placed in probation.
Imprisonment is the sentence of last resort. A Court should only sentence an order to imprisonment if it is satisfied that none of the above penalties are appropriate.
The underlying philosophies driving the development of alternative sentencing are the potential social benefit of community based sentencing, the effective diversion of less serious offenders from prison, the containment of overall correctional spending on full-time custodial inmates, and the need to develop more flexible sentencing systems.
Ahead of handing down your sentence, the Court will look at the following factors:
- The need to punish you for what you have done
- Your age
- What grade you left school and what you have done since school
- Your family background
- Whether you have broken the law before
- How serious what you have done is
- Whether you have done the same sort of thing before
- What sort of punishment will stop you from doing this again
- Whether you need some help to try to make sure you don’t break the law again
The Court can order the offender to pay a fine which will be expressed as a number of ‘penalty units’.
A penalty unit is currently equal to $110.
It is possible for an offender to be fined in addition to receiving anything type of sentence.
The Court usually give you some time to pay the fine, with a period of time to be spent in jail if you do not pay the fine in time (called ‘in default’). If you do not pay the fine on time, you do not go straight to jail: the Court will first send a notice to the State Penalties Enforcement Registry (SPER).
SPER will contact you and you can make arrangements to spay SPER instalments on a weekly, fortnightly or monthly basis. If you do not follow your arrangements with SPER, then there a warrant will be issued to take you to jail.
Please note that if you cannot pay the fine you can apply to SPER to do unpaid work (community service), this is called a ‘fine option order’.
For more information, please refer to the Legal Commission.
GOOD BEHAVIOUR BOND
This is a sentence option under which a person found guilty of an offence promises to be of good behaviour for a stipulated period. The bond may or may not be subject to supervision and is usually sanctioned by forfeiture of a stipulated sum of money.
Good behaviour bond usually last from six months to three years.
A good behaviour bond can be imposed upon a defendant without imposing any further penalty and with or without recording a conviction.
Aside from a condition that the defendant be of good behaviour, the Court may impose other condition such as:
- Payment of a specified sum of money for failure to comply with the bond
- One or more guarantors to guarantee the defendant’s compliance with the conditions of the bond
- Be under the supervision of a community corrections officer
- Reside or not reside with a specific person or at a specific address
- Perform community service
- Undertake an intervention, medical or psychiatric treatment
- Abstain for a specified class of drugs or alcohol
- Restore misappropriated property or pay compensation for injury, loss or damage resulting from the offence
- Attend and complete a specified education program
- Any other condition the Court thinks appropriate
A Court can make orders to vary or revoke and condition of the bond or discharge the bond completely. If the offender fails to enter into the good behaviour bond or if the conditions of the good behaviour bond are breached, the Court can sentence the offender again for the original offence.
For more information, please refer to Legal Aid’s ‘What happens after I have been convicted?’ section.
A Court that finds an offender guilty can decide to adjourn a case for up to 12 months before it decides how to sentence the offender. During those 12 months, the offender will be released on bail.
The purpose of deferring a sentence is usually so an offender can be assessed for rehabilitation and take part in a rehabilitation or intervention program, but the Court can defer sentencing for any purpose it considers appropriate.
The Court will take the offenders progress during the adjournment into account when it sentences the offender.
COMMUNITY SERVICE ORDER
Instead of sentencing an offender to imprisonment, the Court can order that the offender undertake community service work for a specified number of hours.
It provides the Court with an option for managing offenders in the community, in addition to giving them the opportunity to undergo treatment or take part in education, vocational or personal development programs.
If you are on a community service order:
- You will be ordered to do from 40 to 240 hours of unpaid work
- The work must be done for the benefit of the community
- You must finish the hours usually within 12 months of the date the Court made the order
- The Court has the discretion to give you more or less than 12 months to complete your community service
- Your must report to the nominated community corrections officer within 72 hours of the sentence being handed down
- You must notify the community corrections officer of any change of address or employment
- You must not leave the State without permission
- If you don’t do what the order says, you will be breaking the law
- If you breach the community service order, you will have to go back to Court.
Some Magistrates will require the offender to be assessed by a probation and parole officer to confirm whether they are suitable for a community-based order.
Once the term of the order has finished with no breaches, the sentence is complete. If the Court determines that a ‘spent conviction’ order is appropriate, no conviction will be recorded against the offender’s name when the sentence is successfully completed. Otherwise the offender will have a criminal record.
For more information, please refer to the Legal Commission’s ‘Community service’ section.
SUSPENDED SENTENCE ORDER
If a Court imposes a sentence of imprisonment of less than 2 years, the Court can order the offender to enter into a good behaviour bond for up to 2 years. The sentence of imprisonment will only need to be served if the good behaviour bond is breached.
Where the Court is satisfied that the offender has failed to comply with a condition of the suspended sentence bond, the Court must revoke the suspension and order the sentence to be carried out into effect.
Partly suspended sentence order
The Court may also consider suspending part of the period of imprisonment after the offender has served a specified time in prison (not less than one month). The remainder of the sentence of imprisonment is suspended provided the defendant enters a good behaviour bond which takes effect upon their release from prison.
In such scenario, the period of imprisonment the defendant is liable to serve must be more than 3 months but less than one year.
Suspended sentence order with a home detention condition
A Court may consider the suspension of a term of imprisonment due to the defendant’s ill health, disability or frailty. In addition the Court may include a home detention condition along with a supervision condition, compelling the defendant to reside in a specified place.
For more information, please refer to the NSW Sentencing Council’s ‘Sentencing options’ section.
INTENSIVE CORRECTION ORDER (ICO)
In October 2010, periodic detention ceased to be a sentencing option in New South Wales and a new community sentencing option called an Intensive Corrective Order (ICO) became available.
An ICO is an order of imprisonment for no more than 2 years made by a Court, which directs that the sentence is to be served by way of intensive correction in the community, An ICO is served in the community under the strict supervision of Corrective Services NSW rather than in full time custody in a correctional centre.
It enables the offender to maintain contact with family, friends and employment while it avoids the effects of imprisonment.it benefits the community by the performance of community work while retaining a strong element of punishment.
Before making an intensive correction order, the Court must be satisfied that:
- The offender is of or above the age of 18; and
- The offender is a suitable person to serve the sentence by way of intensive correction in the community and that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community; and
- The offender has signed an undertaking to comply with the offender’s obligations under the ICO.
The mandatory conditions of an intensive correction order may include:
- The offender is to be of good behaviour and not commit any offence
- The offender is to reside only at premises approved by a supervisor
- The offender is to submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor
- The offender is to undertake a minimum of 32 hours of community service work per month, as directed by a supervisor from time to time
- The offender is to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report
- The offender is to submit to a medical examination by a specified medical practitioner, in relation to the offender’s capacity to undertake community service work.
The court may also impose any other condition that the Court considers necessary or desirable for reducing the likelihood of the offender re-offending.
Where an offender breaches an ICO, the Commissioner may impose a formal warning or can decide to refer serious breaches to the Parole Authority.
For more information, please refer to the NSW Corrective Services’ ‘ICO’ section.
Offenders sentenced to home detention must remain at an approved residence at all times, unless they engage in activities approved by their supervisor, such as employment. They are electronically monitored and must comply with strict conditions
Home detention is only available as a sentencing option is the sentence is for less than 18 months.
The requirements to be eligible for home detention sentencing include:
- Must not be convicted of the following offences;
- Must not be convicted of a sexual offence or have a history of sexual offending;
- Must not be convicted of domestic violence offences against a person they wish to reside with;
- Must not be convicted of offences involving commercial quantities of illicit drugs;
- Must willingly consent to participate in the scheme.
Once eligibility is determined, a suitability assessment is undertaken. Suitability assessments incorporate an extensive examination of a wide range of factors which may impact on the successful completion of an order.
The suitability factors include:
- The offender’s residence must be in the designated regional areas where the scheme is operational;
- The level of the offender’s drug and alcohol involvement;
- Likelihood of re-offending whilst on home detention;
- Likelihood of the offender committing a violent crime including domestic violence;
- Work opportunities;
- Physical and mental health;
- Personal, family and lifestyle issues;
- Willingness to comply with the conditions of the order.
A home detention order expires at the end of the term of the sentence or when the offender is released on parole, whichever occurs first.
If the offender fails to comply with his/her obligations under the home detention order, the Parole Authority has the power to revoke the order.
RESTITUTION AND COMPENSATION ORDERS
Where an offence for which the defendant was found guilty involves the misappropriation of property, the Court may order that property be restored to the person entitled to possession of property.
A Court may also make an order requiring the defendant to pay compensation for injury, loss or damage resulting from an offence or any other offence taken into account when determining the sentence. The Court will not order compensation if satisfied that the defendant is impecunious and that such an order would unduly prejudice the welfare of his/her dependants.
If a defendant is convicted of a trivial offence or there is some other extenuating circumstance, the Court may discharge the defendant absolutely or place them on a good behaviour bond for up to three years without recording a conviction.
The Court will do this if it considers it appropriate to only impose a nominal punishment.
In considering whether to make a non-conviction order, the Court will take into account a number of factors including:
- Health and mental condition
- The trivial nature and extenuating circumstances of the offence
- Any other factor that the Court thinks proper to consider
The Court may decide to discharge a person, on condition that he or she enters a good behaviour bond if it is satisfied that it is inexpedient to inflict any punishment on that person or that it is expedient to release the person on a good behaviour bond.
Call the experienced team at GMH Legal to assist you in your matter.
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- Outstanding track record with a winning approach
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