Sentencing in NSW is governed by the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’). Under CSPA, the Court has several options when determining a sentence for an offence. Non-custodial alternatives are frequently used for less serious offences where the threshold for imprisonment has not been crossed.
Non-custodial sentences include, but are not limited to:
- No Conviction Order, with or without conditions;
- Community Corrections Order;
- Conditional Release Order.
What is a Conditional Release Order?
Conditional release orders were introduced in 2018 to replace good behaviour bonds. In the second reading speech, introducing the amending Bill, the Hon. Mark Speakman (former Attorney-General) outlined that a conditional release order (CRO) is a community-based sentencing option intended for the “lowest level of offending”. The aim of the CRO is to target the causes of crime by implementing various conditions to address the circumstances of offending.
Courts can decide whether to order a CRO and may do so with or without a conviction. Section 9 (2) of the CSPA, indicates that when considering whether to convict an offender, the Court must have regard to:
- The person’s character, antecedents, age, health and mental condition;
- Whether the offence is of a trivial nature;
- Any extenuating circumstances in which the offence was committed;
- Any other matter that the court thinks property consider.
If the seriousness of the offence and the circumstances of the offending outweighs any mitigating factors, the Court would likely impose a criminal conviction (see TC v R  NSWCCA 3, at ).
What conditions can be implemented?
A CRO can be in place for a maximum of two years, however the Court can decide to implement certain conditions for a shorter period than the duration of the CRO.
Under section 98 of the CSPA there are two mandatory conditions that must be included CRO:
- a condition that the offender must not commit any offence; and
- a condition that the offender must appear before the court if called to do so at any time during the term of the CRO. The Court must then use its discretion to determine whether it is appropriate to impose any other conditions. These conditions are covered in section 99(2) and can include the following:
- A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment;
- Abstention condition requiring abstention from alcohol;
- Non-association condition prohibiting association with particular persons;
- A place restriction condition;
- A supervision condition requiring the offender to submit to supervision (NB. the court must impose supervision for domestic violence related offences).
Conditional release orders are intended for less serious offending. As a result, there are a range of more restrictive conditions that cannot be imposed. These include home detention, electronic monitoring, curfews and community service work. Such conditions can be imposed as part of Intensive Corrections Orders or Community Corrections Orders.
Further obligations relating to the various applicable conditions can be found at Part 10 of the Crimes (Administration of Sentences) Regulation 2014.
Variation of a CRO condition
Throughout the duration of the CRO, community corrections or the offender may make an application under sections 99 or 99A of the CSPA to vary, add or revoke conditions of the order. If both parties consent to the variation, a decision can be made in the parties absence.
An application for variation of conditions must be made in writing to the Court. If the Court is satisfied that the application is without merit the Court may refuse to consider it.
What happens if the CRO is breached?
The administration of a CRO is governed by part 4C of the Crimes (Administration of Sentences) Act 1999. Under section 108C if the Court has reasonable suspicion that there has been a breach of a CRO, it may order that the offender appear before the Court. If the offender fails to appear before the Court a warrant may be issued for their arrest.
Breaches most commonly occur when a new offence has been committed during the period of the CRO but can also occur when a particular condition of the CRO has not been complied with.
If the Court is satisfied that the offender has failed to comply with a condition of the CRO, it may revoke any conditions of the order, impose further conditions, revoke the order or decide to take no further action.
Ultimately, if the Court decides to revoke the order, it may resentence the offender for the original offence that the CRO relates to.