Perth Sentencing, WA

Sentencing encompasses various forms of punishment and rehabilitation, depending on the nature and severity of the offence committed. Offenders may receive a probation sentence, allowing them to serve their sentence in the community under supervision, with specific conditions to adhere to. Alternatively, a sentence handed down by the court may involve fines, community-based orders, suspended imprisonment orders, or immediate imprisonment. Furthermore, parole plays a significant role for those serving sentences of imprisonment, providing eligible offenders with the opportunity for early release into the community under supervision, subject to meeting certain criteria and adhering to parole conditions.

Our specialist criminal lawyers can be with you throughout the sentencing process.

When sentencing, the nature and severity of the offence committed, the offender’s criminal history, personal circumstances, and the offence’s impact on victims and the community must be considered. The diverse range of sentencing options available to the courts include:

Reduction for Plea of Guilty – s 9AA

If an offender pleads guilty to an offence, instead of contesting a matter at hearing or trial, the Court may reduce the sentence to recognise the benefits to the Court, prosecution and any witnesses/victims.

The earlier the plea, the greater the reduction. If the guilty plea was indicated or entered at the first reasonable opportunity, the fixed term may be reduced by 25%. The head term may not be reduced by more than 25% for a guilty plea although it can still be reduced based on other mitigating factors.

No sentence

A “No Sentence Order” is only made by courts where no penalty is considered necessary. In practice, it is very rare for courts to impose no sentence.

Conditional Release Order (CRO)

A CRO is similar to a Good Behaviour Bond. This order requires the offender to avoid re-offending and comply with other conditions. It does not require supervision from Corrective Services. The Court may order that the offender sign a written undertaking to pay certain amounts.

Fines

Fines must be paid within twenty-eight days of a sentencing date. Failure to do so may result in fines enforcement action being taken against you. If you cannot pay this amount within twenty-eight days, please contact the Court Registry to arrange for time to pay.

Suspended fines

Where a court considers a fine of a certain amount is appropriate in all the circumstances at the time of sentence, the court may suspend it for up to 24 months. It does not have to be paid unless the offender commits an offence during the suspension period and the Court orders that the fine be paid.

Community Based Order (CBO)

A community-based order means offenders are given the opportunity to address their criminal behaviour and may involve a requirement to perform community service.

The court fixes the length of the order, which must be at least 6 months and no longer than 24 months.

Whenever a community-based order is issued, the offender must:

• Report to the nominated community corrections officer within 72 hours of the sentence being ordered
• Notify the community corrections officer of any change of address or employment
• Not leave the State without the prior permission of the Community Corrections Centre
• Comply with the court order

There are three basic requirements of a community-based order, and the court will include at least one of them. The three requirements are:

1. Supervision: the offender must meet frequently with their community corrections officer. In some instances the Court may choose to include Electronic Monitoring on specific Court Orders.

1. Program: the offender is to participate in a program or intervention to manage treatment for alcohol and substance abuse, behavioural issues such as anger and violence, or provide education and training opportunities. Offenders may also be required to undertake urinalysis testing for illicit substances.

1. Community Work: the offender may be required to do unpaid work for a set number of hours.

Intensive Supervision Order (ISO)

An intensive supervision order is a stricter form of a community-based order. A supervision condition is mandatory, whilst the other primary requirements may be imposed by the Court as it sees necessary:

1. Program
2. Community Service
3. Curfew (for up to 6 months).

Suspended Imprisonment Order (SIO)

The suspension of a term of imprisonment is only available under s 76(1) of the Sentencing Act where, the Court determines:

1. a sentence to a term of imprisonment is warranted; and
2. the term of the sentence or the aggregate of two or more terms, is not more than 5 years.

The same considerations relevant to the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that all the matters relevant to the circumstances of the offence, as well as those personal to the offender, must be considered again. Talk to us for expert guidance and support.

Conditional Suspended Imprisonment (CSIO)

A Court may impose a term of imprisonment of up to 5 years, but can conditionally suspend that term for 2 years and order the offender to comply with obligations and requirements. It must not be imposed if the offence to which the offender is being sentenced for, was committed when the offender was subject to parole or is serving/yet to serve immediate imprisonment.

The effect of a sentencing order is that you cannot commit any offence that carries with it a term of imprisonment as an available penalty during the period of the order. If you are convicted of such an offence or fail to comply with the terms of the order, you will be liable to be resentenced for the offence/s which the order was imposed.

Common obligations of a Court ordered sentencing outcome:

1. must report to a community corrections centre within 72 hours after being released by the court, or as otherwise ordered by a speciality court or a CCO;
2. must notify a CCO of any change of address or place of employment within 2 clear working days after the change, or as otherwise ordered by a speciality court;
3. must not leave Western Australia except with, and in accordance with, the permission of a speciality court or Community Correction
4. Must comply with all lawful orders or directions of a CCO.
5. a supervision requirement
6. a programme requirement
7. a curfew requirement

Breach of court orders

Offenders who fail to abide by set conditions or who commit another offence, will be returned to court to be dealt with. If the order is successfully completed with no breaches, the offender will have a record but will not have to serve time in prison.

Pre-Sentence Order (PSO)

A PSO is not a sentence. It is an order that an offender appear before the court on a specific day to be sentenced for the offences to which the PSO applies.

The purpose of a PSO is to give an offender facing imprisonment an opportunity to take steps to address their offending behaviour before the court proceeds with sentencing.

The court may make a PSO in respect of the offender if it considers –

(a) that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment;

(b) that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and

(c) that if the offender were to comply with a PSO the court might not impose a term of imprisonment for the offence or offences.

Immediate imprisonment

If the Court is of the opinion that either suspending the sentence or placing an offender on a community order would fail to reflect the seriousness of the offence, the Court may order that the sentence be served immediately.

Spent Conviction Order (SCO)

A spent conviction order (SCO) is a court order that a criminal conviction is spent. You generally do not have to tell anyone about a spent conviction. This can help you with employment, finance, travel and other aspects of life.  Sometimes you will have to disclose or acknowledge a conviction even if you have a spent conviction order. This may include when applying for security clearances or when returning to court for a new offence.

The sentencing Court may make a spent conviction order if it considers the offender unlikely to commit a similar offence again and should be relieved immediately of the adverse effect of the conviction—either because the offence is trivial or because the offender has prior good character.

Lack of prior record and/or character references may help to establish good character or satisfactory completion of a pre-sentence programme may help show that the offender is unlikely to reoffend.

Parole order

When serving a sentence of imprisonment, the Court can grant an offender eligible for parole. It will ultimately be a matter for the Prisoners Review Board as to whether to grant, defer or refuse parole and will take into account several factors.

If made eligible for parole, an offender in Western Australia will be given a date when they can be considered as follows:

1. For a sentence of 4 years or less, the offender must serve half their time in custody.
2. For a sentence over 4 years, they become eligible when they have served all but two years of their sentence.

Consult our experienced criminal defence lawyers for comprehensive legal assistance and guidance regarding parole eligibility and related matters in Western Australia.

1. Lifetime Family/Violence Restraining Order
2. Serial Family Violence Offender declaration
3. Sex Offender Registry – Reportable Offenders
4. Forfeiture Orders
5. Drug Trafficker Orders
6. Reparation Order
7. Disqualification Orders
8. Firearms Licence
9. Driver’s Licence

With the introduction of the Family Violence Legislation Reform Act 2024 (WA), the Sentencing Act 1995 (WA) now contains a mandatory imposition of electronic monitoring on family violence offenders unless there are exceptional circumstances.

The mandatory electronic monitoring requirement must be imposed, unless there are exceptional circumstances, when the court sentences an offender to the following:

1. Pre-Sentence Order (s.33HA)
2. Community Based Order (s.67A)
3. Intensive Supervision Order (s.76A)
4. Conditional Suspended Imprisonment Order (s.84CA)

There are two categories (category A and category B) of family violence offences. Category A relates only to the Criminal Code (WA) offences in the table below. Category B relates to both the Criminal Code offences and the Restraining Order Act offences in the table below, where the offender and the victim are in a designated family relationship with each other at the time of the offence and the offence is one of the following:

Restraining Order Act 1997 (WA)
61(1)	Breach of a Family Violence Restraining Order
61(1A)	Breach of a Violence Restraining Order
Criminal Code (WA)
221BD	Distribution of an Intimate Image
279	Murder
280	Manslaughter
281	Unlawful assault causing death
283	Attempt to unlawfully kill
292	Disabling in order to commit indictable offence
293	Stupefying in order to commit indictable offence
294	Act intended to cause grievous bodily harm or prevent arrest
297	Grievous bodily harm
298	Suffocation and strangulation
300	Persistent family violence
301	Wounding or similar acts
304	Act or omission causing bodily harm or danger
313	Common assault
317	Assault causing bodily harm
317A	Assault with intent
323	Indecent Assault
324	Aggravated indecent assault
325	Sexual Penetration without Consent
326	Aggravated sexual penetration without Consent
328	Aggravated sexual coercion
332	Kidnapping
333	Deprivation of liberty
338A	Threats with intent to gain
338B	Threats
338C	Statement or act creating false apprehension as to existence of threat or danger
338E	Stalking
444	Criminal Damage

Where an offender commits a category A offence, is bound by a family violence restraining order, and the category A offence is committed against the person protected the court must impose a requirement for electronic monitoring unless they are satisfied there are exceptional circumstances.

When an offender commits a category B offence, and the offender is declared, either by the sentencing court or another court, a serial family violence offender the court must impose a requirement for electronic monitoring unless they are satisfied there are exceptional circumstances.

When ordering a pre-sentence order, community-based order or intensive supervision order, the term of the electronic monitoring requirement must be set by the court when imposing the requirement. An electronic monitoring requirement ceases to be in force when its term ends, or when the order ceases to be in force, whichever happens first.

In relation to a Conditional Suspended Imprisonment Order, the electronic monitoring requirement ceases to be in force when the suspension period ends.

FAMILY RELATIONSHIP

Designated Family Relationship

A designated family relationship means a relationship between 2 persons as follows:

1. who are, or were, married to each other; or
2. who are, or were, in a de facto relationship with each other; or
3. who have, or had, an intimate personal relationship with each other; or
4. one of whom is a child who —
   1. ordinarily resides, or resided, with the other person; or
   2. regularly resides or stays, or resided or stayed, with the other person; or
5. one of whom is, or was, a child of whom the other person is a guardian.

Intimate Personal Relationship

An intimate personal relationship exists between 2 persons (including persons of the same sex) if:

1. the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition; or
2. the persons date each other, or have a romantic involvement with each other, whether or not a sexual relationship is involved.

In deciding whether an intimate personal relationship exists under subsection (1A)(b), the following may be taken into account:

1. the circumstances of the relationship, including, for example, the level of trust and commitment;
2. the length of time the relationship has existed;
3. the frequency of contact between the persons;
4. the level of intimacy between the persons.

Family Violence Restraining Order

Family violence restraining order means an order made under the Restraining Order Act 1997 (WA) imposing restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent:

1. committing family violence against the person seeking to be protected; or
2. if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
3. behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.

SERIAL FAMILY VIOLENCE OFFENDER

An offender convicted of a family violence offence (category B) is declared by a court to be a serial family violence offender under s.124E of the Sentencing Act 1995 (WA) if:

1. the offender has, on that conviction, been convicted of at least 2 prescribed offences which may only be tried on indictment, with at least 2 of those prescribed offences having been committed on different days; or
2. the offender has, on conviction, been convicted of at least 3 prescribed offences, with at least 3 of those prescribed offences having been committed on different days.

For the purposes of the offences:

1. the victim of each offence may, but need not be, the same person.
2. The offences need not be the same offences.
3. The offences need not to have occurred in the State as long as 1 of them did.
4. 1 or more of the convictions may have been convictions by a court outside the State.
5. It is immaterial in which order the offences were committed.
6. An offence will not be taken into account if the offence was committed by a person who, at the time of the commission of the offence, was under 18 years of age.
7. Each of the offences taken into account must have been committed within a period of 10 years of each other unless the court is satisfied that exceptional circumstances exist that make it appropriate to make a declaration under this section.

The court must have regard to:

1. the level of risk that the offender may commit another family violence offence (category B);
2. the offender’s criminal record;
3. the nature of the prescribed offences for which the offender has been convicted.

The court in deciding whether to make the declaration may order an assessment of the offender by an approved expert which may indicate the risk of the offender committing another family violence offence (category B) and the reasons for this assessment.

For the purposes of imposing an electronic monitoring requirement, an offender is considered a serial family violence offender whether they were declared by the sentencing court at the time of the offender’s conviction for the family violence offence (category B) or by another court.

FAMILY VIOLENCE OFFENCES

Family violence offences are split into two categories which are each defined under s.4 of the Sentencing Act:

1. Family Violence Offence (category A)
2. Family Violence Offence (category B)

Family Violence Offence (category A)

Category A means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following:

Criminal Code (WA)
221BD	Distribution of an Intimate Image
279	Murder
280	Manslaughter
281	Unlawful assault causing death
283	Attempt to unlawfully kill
292	Disabling in order to commit indictable offence
293	Stupefying in order to commit indictable offence
294	Act intended to cause grievous bodily harm or prevent arrest
297	Grievous bodily harm
298	Suffocation and strangulation
300	Persistent family violence
301	Wounding or similar acts
304	Act or omission causing bodily harm or danger
313	Common assault
317	Assault causing bodily harm
317A	Assault with intent
323	Indecent Assault
324	Aggravated indecent assault
325	Sexual Penetration without Consent
326	Aggravated sexual penetration without Consent
328	Aggravated sexual coercion
332	Kidnapping
333	Deprivation of liberty
338A	Threats with intent to gain
338B	Threats
338C	Statement or act creating false apprehension as to existence of threat or danger
338E	Stalking
444	Criminal Damage

Family Violence Offence (category B)

Category B means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is one of the following:

Restraining Order Act 1997 (WA)
61(1)	Breach of a Family Violence Restraining Order
61(1A)	Breach of a Violence Restraining Order
Criminal Code (WA)
221BD	Distribution of an Intimate Image
279	Murder
280	Manslaughter
281	Unlawful assault causing death
283	Attempt to unlawfully kill
292	Disabling in order to commit indictable offence
293	Stupefying in order to commit indictable offence
294	Act intended to cause grievous bodily harm or prevent arrest
297	Grievous bodily harm
298	Suffocation and strangulation
300	Persistent family violence
301	Wounding or similar acts
304	Act or omission causing bodily harm or danger
313	Common assault
317	Assault causing bodily harm
317A	Assault with intent
323	Indecent Assault
324	Aggravated indecent assault
325	Sexual Penetration without Consent
326	Aggravated sexual penetration without Consent
328	Aggravated sexual coercion
332	Kidnapping
333	Deprivation of liberty
338A	Threats with intent to gain
338B	Threats
338C	Statement or act creating false apprehension as to existence of threat or danger
338E	Stalking
444	Criminal Damage

SENTENCING AND ELECTRONIC MONITORING REQUIREMENT

If a person commits a family violence offence (category A); and:

1. the offender is bound by a family violence restraining order; and
2. the person against who the family violence offence (category A) was committed is protected by the family violence restraining order;

and the Court makes one of the following orders, then the court must impose a requirement for electronic monitoring in respect of the offender unless the court is satisfied there are exceptional circumstances:

1. Pre-Sentence Order (s.33HA)
2. Community Based Order (s.67A)
3. Intensive Supervision Order (s.76A)
4. Conditional Suspended Imprisonment Order (s.84CA)

If a person commits a family violence offence (category B); and the offender is a serial family violence offender, and the Court makes one of the following orders then the court must impose a requirement (an electronic monitoring requirement) for electronic monitoring in respect of the offender unless the court is satisfied there are exceptional circumstances:

1. Pre-Sentence Order (s.33HA)
2. Community Based Order (s.67A)
3. Intensive Supervision Order (s.76A)
4. Conditional Suspended Imprisonment Order (s.84CA)

The purpose of electronic monitoring of an offender subject is to enable the location of the offender to be monitored.

In relation to an Intensive Supervision Order or a Conditional Suspended Imprisonment Order, the purpose of electronic monitoring of an offender is to enable the location of the offender to be monitored where they present a high risk to a person, group of persons or the community more generally.

This does not apply to an offender who at the time of being sentenced to an Intensive Supervision Order is under 18 years of age.

If the electronic monitoring requirement is imposed, a Community Corrections Officer (‘CCO’) may:

1. direct the offender to wear an approved electronic monitoring device;
2. direct the offender to permit the installation of an approved electronic monitoring device at the place where the offender resides or, if the offender does not have a place of residence, at any other place specified by the CCO;
3. direct the offender to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
4. direct the offender to not enter 1 or more areas of the State stated in a written notice given to the offender by the CCO unless the offender has a reasonable excuse.

A person must comply with any of these directions given by the CCO and failure to do so is a criminal offence which carries a maximum penalty imprisonment for 3 years and a fine of $36,000.

When ordering a pre-sentence order, community-based order or intensive supervision order, the term of the electronic monitoring requirement must be set by the court when imposing the requirement. An electronic monitoring requirement ceases to be in force when its term ends, or when the order ceases to be in force, whichever happens first.

In relation to a Conditional Suspended Imprisonment Order, the electronic monitoring requirement ceases to be in force when the suspension period ends.

Suspension of Electronic Monitoring

A CCO may give any reasonable direction to an offender as is necessary for the proper administration of a requirement imposed on the offender in relation to an electronic monitoring device.

A CCO may suspend the electronic monitoring of an offender:

1. while satisfied that it is not practicable to subject the offender to electronic monitoring; or
2. while satisfied that it is not necessary for the person to be subject to electronic monitoring.

Should you or someone you know be charged with a family violence offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Perth on 08 6255 6909 to make an appointment to speak to one of our lawyers.

Callum Parker
Lawyer
Hugo Law Group
Perth