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When pleading guilty or found guilty of a criminal offence, the court will then have to issue a penalty to you in accordance with the Crimes (Sentencing Procedure Act) 1999 (NSW). The penalty imposed must fit the crime and the court takes many factors into consideration including but not limited to:
To ensure you are adequately punished for the offence
To deter others from committing the same offence
To protect the community
To recognise the harm done to the victim
To promote rehabilitation
Your specific circumstances including mental health issues, specifics surrounding why you offended
Your criminal history
Any rehabilitative steps you’ve taken to ensure you deter yourself from committing the offence again
There are different types of penalties in NSW based on whether you are charged with a state or commonwealth offence. The penalties include both conviction and non-conviction penalties.
A state offence refers to a violation of laws established by the NSW government. These offences are prosecuted within the NSW court system and are subject to penalties outlined in NSW legislation. State offences in NSW range from minor infringements to serious felonies.
NSW state offences are governed by statutes specific to jurisdiction, addressing the legal consideration and societal needs of the state’s residents State offences are distinct from Commonwealth offences which are prosecuted under federal law.
Examples of State offences in NSW include:
Traffic Offences:
Reckless driving
Driving under the influence
Driving while disqualified, unlicensed, or suspended
Criminal Offences
A section 10 dismissal or a section 10 non-conviction is a penalty that can be applied to individuals pleading guilty to a criminal offence. Under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 it states that:
“(1) without proceeding to conviction, a court that finds a person guilty of an offence may make one of the following orders,
a. An order directing that the relevant charge be dismissed”
This is considered one of the most lenient penalties available in NSW. By securing a Section 10 dismissal, no conviction will be recorded against your name and the charges will be dismissed completely. It also means that there will be no fines, good behaviour bonds or licence disqualifications.
This penalty is available to offenders in both criminal and traffic matters. To learn more about this penalty make sure to read out guide on Section 10 Dismissals.
A conditional release order offers you an alternative to more severe punishments such as imprisonment or fines, providing an opportunity for rehabilitation while avoiding criminal conviction. This is a lenient penalty the court may impose for a traffic offence.
Under a Conditional Release Order, you must comply with the specific conditions set by the court. These conditions aim to address issues which originally led to the offence and facilitate rehabilitation. These conditions may include regular reporting to a parole officer.
Being issued with a Conditional Release Order without conviction will mean you will not be fined, you won’t lose demerit points and there won’t be long term negative consequences on your employment and travel.
The court can issue two types of conditional release orders; one without a criminal conviction and the other with a criminal conviction. Generally, a non-conviction conditional release order is more likely to be granted under the following circumstances:
You have demonstrated good character, often supported by compelling character reference letters
You do not have prior criminal convictions
You’re young
You are suffering from mental health conditions such as depression
The impact of a conviction or licensed qualification on you and your dependents.
A fine is a monetary penalty impose by the court as a consequence of certain behaviours. When a fine is imposed, it is recorded as a criminal conviction against your name, marking your legal record.
Fines are applicable in both criminal and traffic offences and can be imposed as an alternative to other penalties such as imprisonment or an intensive correction order.
In NSW, a fine cannot exceed more than 1000 penalty units, 1 penalty unit is equal to $110.00.
When a fine is imposed, you have 28 days to pay it. However, you are also provided with the option to pay it in instalments if you cannot pay the whole amount upfront.
A Community Corrections Order is a legal mandate issues by the court that imposes specific conditions on you within the community as a consequence for the offence. These conditions may include participating in rehabilitation programs, community service, professional appointments or restrictions on behaviour.
A Community Corrections Order is recorded as a criminal conviction against you, and will become a permanent part of your legal record.
This penalty is applicable in both criminal and traffic matters and is often utilised in matters where the court deems community-based rehabilitation and supervision to be more appropriate than imprisonment or other penalties.
Compliance with the conditions of a Community Corrections Order is mandatory. Failure to adhere to these conditions can result in further legal consequences such as additional penalties or in more severe cases, imprisonment.
An Intensive Corrections Order serves as an alternative to full-time imprisonment, providing you with a structured yet community-based option. Despite being an alternative to imprisonment, an ICO is still considered a sentence of imprisonment and is recorded as a criminal conviction.
Under an Intensive Corrections Order, you will remain in the community but are subject to stringent conditions imposed by the court. These conditions may include requirements such as attending rehabilitation programs, community service, curfews and house arrest.
Intensive Corrections Orders are available in both criminal and traffic matter. However, these orders are not available for prescribed sex offences, where alternative sentence options are applied.
Compliance with the conditions of these orders is mandatory. Failure to adhere to these conditions can result in further legal consequences such as revocation of the order and imprisonment.
Full time imprisonment is a sentencing option where you are confined to a correctional facility for a specified period and is recorded as a criminal conviction on your legal record.
This penalty can include a non-parole period, during which you may be eligible for parole and serve part of the sentence in the community under supervision. However, parole eligibility and conditions vary depending on the nature of the offence.
In some cases, the could may impose full time imprisonment via home detention, where you serve your sentence at home under electronic monitoring and strict conditions imposed by the court.
Full-time imprisonment is applicable in both criminal and traffic offences, serving as a significant penalty for serious breaches of the law. The severity and duration of the imprisonment are determined based on factors such as the nature and gravity of the offence, the individual’s criminal history, and any mitigating or aggravating factors.
The penalty you receive will depend on the specific charges and circumstances of your case. It is not always the case that you will receive a full-time imprisonment sentence, regardless of the maximum penalty. Speak with your lawyer who can provide further guidance on how to put yourself in the best possible position to receive a non-conviction penalty when charged with a criminal or traffic offence.
Non-Conviction Order
Conditional release order with conviction
Recognisance Release Order
Community Corrections Order
Intensive Corrections Order
Reparation/Compensation Order
Intensive Corrections Order
A Commonwealth offence, also known as a federal offence refers to a violation of laws enacted by the federal government of Australia. These offences are prosecuted under federal jurisdiction and can usually have different penalties than state offences which are prosecuted under the laws of each state or territory.
Commonwealth Offences encompass a large range of offence including:
Immigration Violation
Tax evasion or fraud
Drug trafficking across state borders
A non-conviction order is outlined in section 19B of the Crimes Act 1914. This penalty refers to a court order where you are found guilty of committing an offence, but no conviction is recorded against you. This means that you are not formally convicted of the offence, and as a result, you do not receive a criminal record. This is also known as a section 10 conditional release order under the NSW Law.
This penalty is given after the court has found the accused guilty or after the accused has pleaded guilty.
A main difference with Commonwealth offences is that the court can provide two non-conviction orders:
Non-conviction discharger with no conditions
Non-conviction discharge with conditions
Conditions on these orders are imposed to ensure that you comply with certain requirements and behave appropriately following the court’s orders.
Potential Conditions which may be attached to a non-conviction order include:
Good behaviour bonds – this bond requires you to maintain good behaviour for a specified time period. Under section 19B of the Crimes Act, this period cannot exceed 3 years. If you commit another offence throughout this period, you will be convicted.
Supervision – This entails compliance with the supervision of a probation officer, including obedience of their reasonable direction. The duration of supervision cannot exceed two years.
Restitution or Compensation Order: This order requires you to reimburse any loss the victim has suffered from your offence.
Section 20(1)(a) of the Crimes Act 1914 governs conditional release orders with conviction for Commonwealth offences. This penalty refers to a sentencing option where you are found guilty of committing an offence and a conviction is recorded against you. This order allows you to be released back into the community under certain conditions, which they must adhere to for a specified period. This period cannot exceed 2 years.
Under s20(1)(a) The conditions of a Conditional Release Order for a Commonwealth offence are:
Be of good behaviour for a period not exceeding 5 years.
Make reparation or restitution, or pay compensation in respect to the offence.
Pay the Commonwealth a pecuniary penalty
You participate in counselling or rehabilitation programs for a specified time period. This cannot exceed 2 years
To be subject to the supervision of a Parole officer and to comply with all reasonable direction of the officer.
Comply with other orders the court has specified for a certain time period. This period cannot exceed 2 years
If it is brought to the attention of the Magistrate or Judge that you may have breached your conditional release order under section 20(1)(A) where there is no reasonable cause or excuse, you may be summoned to attend court.
If it is proven and the court is satisfied that you have breached the Conditional Release Order, the court may:
Impose a pecuniary penalty of up to $2,100 while allowing the original order to stand
Revoke the order and re-sentence you again. The court will likely consider a more serious penalty upon this sentence.
Take no action for the breach.
A sentence of imprisonment where the court can impose one of the following under section 20(1)(b) of the Crimes Act 1914 (Cth):
That you be immediately released upon entering into a ‘recognisance’ requiring you to give the court a monetary security as a promise to comply with certain conditions imposed on you; or
That you be released after having served a portion of the total sentence. You can then be released upon entering into a recognisance requiring you to give the court a monetary security as a promise to comply with certain conditions imposed on you.
The conditions of this penalty are imposed if you are released from imprisonment into the community after having served a portion of your sentence. These conditions may be:
To be of good behaviour for a period not exceeding 5 years.
Make reparation or restitution, or pay compensation in respect to the offence.
Pay the Commonwealth a pecuniary penalty
You participate in counselling or rehabilitation programs for a specified time period. This cannot exceed 2 years
To be subject to the supervision of a Parole officer and to comply with all reasonable direction of the officer.
Comply with other orders the court has specified for a certain time period. This period cannot exceed 2 years
A Recognisance Release Order is applicable only when the total sentence term for a Commonwealth offence does not exceed 3 years. If the total sentence term exceeds 3 years, the Magistrate or Judge is required to establish a non-parole and a ‘parole period’.
If it is brought to the attention of the Magistrate or Judge that you may have breached your conditional release order under section 20(1)(A) where there is no reasonable cause or excuse, you may be summoned to attend court.
If it is proven and the court is satisfied that you have breached the Conditional Release Order, the court may:
Extend the period of the time which you are required to comply with the penalty.
Require you to pay a penalty of up to $1,000 without affecting your current penalty.
Revoke the order and order you to serve the remainder of the sentence in prison.
Revoke the order and impose one of the following penalties on you:
Intensive corrections order: this involves the supervision of a parole officer and orders of community service, rehabilitation, educational programs, home detentions, curfews or place restriction conditions.
Community Corrections Order: This can include good behaviour bond, rehabilitation, curfew, place restrictions, community service or supervision conditions.
Under s20AB(1) of the Crimes Act (Cth) the court can issue you a Community Corrections Order. A Community Corrections Order (CCO) is a penalty issued by the court in New South Wales. It serves as an alternative to serious penalties such as imprisonment and typically involves community-based supervision and rehabilitation.
Community Correction Orders for Commonwealth offences are similar to those for state offences. The only notable difference is if you breach the conditions of this order under section 20AB, the court may impose a penalty of up to $2,100.00. Any security initially provided in recognizance may also be forfeited to the court.
Under Section 20AB of the Crimes Act 1914 (Cwth) an Intensive Correction Order (ICO) is a sentencing option that involves a criminal conviction being recorded against an individual's name without the immediate requirement of full-time imprisonment. Instead of serving time in a correctional facility, the sentence can be served within the community under strict conditions.
This order may include a non-parole period, during which the individual is required to comply with various terms that could include home detention. The ICO is designed to provide a structured and supervised environment that encourages rehabilitation while holding the individual accountable for their actions.
A Reparation/Compensation Order, governed by relevant Commonwealth legislation, refers to a monetary fine imposed by the court to compensate for any loss suffered or expense incurred by the victim as a result of an offence committed.
This order typically imposed in addition to another penalty under Commonwealth Legislation, regardless of whether the offender received a non-conviction penalty. It serves as a means for the court to ensure that victims are appropriately compensates for any harm or losses they have endured due to the offender’s actions.
Under Division 3, s17A(1) of the Crimes Act 1914 (Cwth), a court may impose this type of sentence only when it is convinced that no less restrictive sentencing options are suitable. This determination requires the court to exhaustively consider alternatives such as bonds, community service orders, home detention orders, and intensive correction orders, and deem them inappropriate under the circumstances.
Once a decision for full-time imprisonment is reached, the sentencing includes setting a full term (e.g., 4 years) and a non-parole period or 'minimum term' (e.g., 3 years), which is the minimum duration the individual must serve before eligibility for parole. This non-parole period should generally be at least three-quarters of the full term unless 'special circumstances'—such as youth and good prospects for rehabilitation—justify a shorter minimum term.
However, in cases of particularly heinous crimes or where there is a significant history of reoffending, the court has the discretion to refuse setting a non-parole period, recording its rationale for this decision. For sentences of 6 months or less, the imprisonment will have a single 'fixed term' without parole considerations.
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