Penalties for criminal offences

Section 10

There are different type of section 10's including: 

• section 10(1)(a) – dismissing the charges
• section 10(1)(c) - discharging you on the condition that you participate in an intervention program
• section 10A – convicting you but imposing no penalty.

If the Magistrate makes this order, they may also make:

• a compensation order – requiring you to pay compensation for injury or loss caused by the offence
• an order for restitution – for you to return property to the victim.

Section 10(1)(a) or section 10 dismissal

If the Magistrate finds you guilty of an offence, they can dismiss the charge and not record a conviction against you. 

When deciding whether to make this order, the Magistrate must consider:

• your character, age, health and mental condition
• whether the offence is trivial in nature – this relates to the offending behaviour and the circumstances in which the offence was committed
• the extenuating circumstances in which the offence was committed
• any other matter, for example, how a conviction will affect your job.

The Magistrate can consider your mental condition at the time of the offence and after you have been found guilty. You don’t have to show the Magistrate that your mental condition caused you to offend.

The Magistrate will usually only make this order where:

• it is your first offence, and you have a clear criminal and/or driving record
• your offending behaviour is minor 
• there is little chance of you offending again
• there were mitigating factors that led to the offence.

Even if the above factors apply to your case, there is no guarantee that your charge will be dismissed.

If your charge is dismissed, you can’t be given any other penalty.

If you have been found guilty of a driving offence and the Magistrate makes this order, you will not get any demerit points added to your driving record.

If the Magistrate makes this order, they may also make:

• a compensation order – requiring you to pay compensation for injury or loss caused by the offence
• an order for restitution – for you to return property to the victim.

Section 10(1)(c)

If the Magistrate finds you guilty of an offence, they can refer you to an intervention program without convicting you.

The Magistrate can make this order if they are satisfied that this would reduce the likelihood of you committing further offences, by promoting your treatment and rehabilitation.

When deciding whether to make this order, the Magistrate must consider:

• your character, age, health and mental condition
• whether the offence is trivial in nature – this relates to the offending behaviour and the circumstances in which the offence was committed
• the extenuating circumstances in which the offence was committed
• any other matter, for example, how a conviction will affect your job.

The Magistrate can consider your mental condition at the time of the offence and after you have been found guilty. You don’t have to show the Magistrate that your mental condition caused you to offend.

If you have been found guilty of a driving offence and the Magistrate makes this order, you will not get any demerit points added to your driving record.

If the Magistrate makes this order, they may also make:

• a compensation order – requiring you to pay compensation for injury or loss caused by the offence
• an order for restitution – for you to return property to the victim.

Section 10A

If the Magistrate can find you guilty of an offence, they can convict you of the offence but not impose any other penalty. This is also called a section 10A penalty.

Unlike a section 10 dismissal, the conviction will be recorded on your criminal record and/or driving record.

If the offence is a traffic offence, you will also get demerit points for the offence.

Even though the Magistrate doesn’t impose any other penalty, your driver licence may still be disqualified if the offence carries an automatic period of disqualification. 

Fine

If the Magistrate finds you guilty and convicts you of an offence, they may give you a fine, if it is one of the specified penalties for the offence. For many minor offences this is the most common penalty.

The maximum amount you can be fined for an offence is usually the amount provided by law. However, the Magistrate has the discretion to give you a smaller fine, unless the amount of the fine is mandatory.

When determining the amount of a fine, the Magistrate must consider:

• your financial circumstance and ability to pay the fine, and
• any other matters they think are relevant, such as the seriousness of the offence, the prevalence of the offence and the need for deterrence.

In some cases, the law states that a fine, or sentence of imprisonment, or both, can be imposed for an offence.

If you get a fine, you must pay it within 28 days.

If you can’t afford to pay the fine in one go, you can apply for time to pay.

If you don’t pay your fine or arrange for time to pay, the Court can send the fine to Revenue NSW, who can then take enforcement action against you to recover the fine.

For more information, see Paying your court fine.

Offences dealt with on indictment

If you have been convicted of an offence on indictment, the Magistrate may give you a fine instead of, or in addition to, another penalty, including:

• imprisonment
• an Intensive Correction Order (ICO)
• a Community Correction Order (CCO).

The Magistrate may decide to give you fine and sentence of imprisonment if you have financially benefited from the offence.

You can’t get a fine in addition to the Conditional Release Order (CRO) for the same offence.

You can’t get a fine instead of, or in addition to, the above penalties if a fine is one of the specified penalties for the offence.

Conditional Release Order (CRO)

A Conditional Release Order (CRO) is a sentence where you remain in the community but are supervised by Community Corrections (part of Corrective Services). It may be used as an alternative to a sentence of imprisonment or a fine. You can’t be given a fine and a CRO for the same offence.

Making an order

If the Magistrate finds you guilty of an offence, they can make a CRO discharging you:

• after you have been convicted, or
• without convicting you.

When deciding whether to convict you of an offence and make a CRO, the Magistrate must consider:

• your character, age, health and mental condition
• whether the offence is trivial in nature – this relates to the offending behaviour and the circumstances in which the offence was committed
• the extenuating circumstances in which the offence was committed
• any other matter, for example, how a conviction will affect your job.

The Magistrate can consider your mental condition at the time of the offence and after you have been found guilty. You don’t have to show the Magistrate that your mental condition caused you to offend.

The Magistrate can make a CRO without convicting you if they are satisfied that:

• it is inexpedient to punish you for the offence, or
• it is expedient to discharge you under a CRO.

The Magistrate can make an CRO without first obtaining an assessment report.

When deciding whether to give you a CRO for a domestic violence offence, the Magistrate must consider the safety of the victim. The CRO must include a supervision order, unless the Magistrate is satisfied that a different sentencing option is more appropriate in the circumstances, and gives their reasons for reaching this view. 

The CRO will commence on the day it is made.

It will be for a maximum of two years.

Conditions of CRO

Every CRO has two standard conditions that you will have to follow:

• you must not commit any offence, and
• you must attend any court date.

There are also additional conditions that can be imposed, including:

• a rehabilitation or treatment condition – requiring you to participate in a rehabilitation or treatment program
• a prohibition on the use alcohol, drugs, or both
• a non-association condition - banning you from communicating/seeing certain people 
• a place restriction condition - banning you from going certain places
• a supervision condition - that you be supervised by a community corrections officer.

The Magistrate has the power to also include further conditions that you have to follow. These conditions must not be inconsistent with the standard conditions or additional conditions, whether or not the additional conditions are imposed. The Magistrate can limit the period that a further condition is in force.

The Magistrate can’t impose a supervision condition if you live, or intend to live, in another State or Territory.

The Magistrate also can’t impose:

• a home detention condition
• an electronic monitoring condition
• a curfew condition
• a community service work condition.

The conditions that are imposed in a CRO shouldn’t be used to further punish you.

Before 24 September 2018, you could be sentenced to a section 10 bond. This was often referred to as a "good behaviour bond" because a condition was to be of good behaviour. The court no longer has the power to give a section 10 bond. If you are on a section 10 bond, you must continue to follow the conditions of that bond. This is now referred to as a CRO. If you are on a section 10 bond and you are convicted of another offence the court can re-consider the penalty for the offence you committed to get the section 10. This means they can re-open your previous matter to decide on a new penalty.

Community Correction Order (CCO)

A Community Correction Order (CCO) is a type of sentence where you remain in the community but are supervised by Community Corrections. A CCO is a harsher penalty than a CRO.

Making an ICO

If you have been convicted of an offence, the Magistrate can give you a CCO instead of a sentence of imprisonment.

If you are given a CCO, it begins on the date that it is made.

When deciding whether to give you a CCO for a domestic violence offence, the Magistrate must consider the safety of the victim. The CCO must include a supervision order, unless the Magistrate is satisfied that a different sentencing option is more appropriate in the circumstances, and gives their reasons for reaching this view.  

The maximum time of a CCO is three years. 

You must be in court for the Magistrate to give you a CCO.

Once an order has been made, the Magistrate must ensure that reasonable steps are taken to explain to you, your obligations under the CCO and the consequences of breaching the conditions of the CCO.

Conditions of an ICO

Every CCO has two standard conditions:

1. you must not commit any offence, and
2. you must attend any court date.

In addition to the standard conditions, the Magistrate can also impose additional conditions in a CCO, including:

• a curfew, no longer than 12 hours
• a community service work condition
• a rehabilitation or treatment condition – requiring you to participate in a rehabilitation or treatment program
• a prohibition on the use alcohol, drugs, or both
• a non-association condition - banning you from communicating/seeing certain people 
• a place restriction condition - banning you from going certain places
• a condition that you be supervised by a community corrections officer.

The Magistrate must obtain an assessment report before they can impose a community service work condition. The report must state that you are suitable for community service work.

If you live, or intend to live in another State or Territory, the Magistrate can’t impose a community service work order unless they are satisfied that you are able and willing to travel back to NSW to complete the work.

The Magistrate can’t impose a supervision condition if you live, or intend to live, in another State or Territory.

The Magistrate has the power to also include other conditions that you have to follow. These conditions can’t be inconsistent with the standard conditions or additional conditions, whether or not the additional conditions are included in the CCO. The Magistrate can limit the time that any further conditions are in force.

The Magistrate can’t impose:

• home detention
• electronic monitoring
• a curfew of longer than 12 hours.

If you receive a CCO a conviction will be recorded on your criminal record.

If you think you have breached the conditions of your community correction order, you should get legal advice.

Intensive Correction Order (ICO)

If the Magistrate sentences you to a term of imprisonment, they can make an Intensive Correction Order (ICO) directing you to serve your sentence in the community. An ICO is an alternative to a short prison sentence.

Under an ICO, you are subject to intensive supervision and must comply with the standard and additional conditions ordered by the Magistrate.

Eligibility

To be eligible for an ICO, you must:

• be 18 years or older
• live in NSW – the Magistrate can’t make an ICO for someone who lives in another State or Territory
• have committed an eligible offence
• have a short enough sentence.

The Magistrate can only make an ICO if:

• you are being sentenced to a term of imprisonment of less than two years for a single offence, or
• you are being sentenced to a term of imprisonment of less than three years for multiple offences.

You can be given two or more ICOs if you are being sentenced for multiple offences. The Magistrate can only make multiple ICOs if:

• each term of imprisonment that you receive is less than two years, and
• the total term of imprisonment for all the offences is less than three years.

When deciding whether to make an ICO, community safety must be the Magistrate’s paramount consideration. The Magistrate must consider whether an ICO or a prison sentence is more likely to address the risk of you re-offending. It will obtain evidence about this risk from an assessment report.

An assessment report must address:

• your risk of re-offending
• the factors related to your offending behaviour
• the factors that may affect your ability to change your behaviour
• how these factors would be addressed by supervision, and the availability of resources to provide such supervision
• the conditions that would facilitate your supervision in the community
• your suitability for community service work
• a summary of your response to any previous community supervision
• any other matters the Magistrate asks to be addressed.

An assessment report prepared for a home detention condition must address:

• your suitability for home detention
• any risks associated with home detention, including strategies to manage these risks
• any other relevant matters.

An assessment report prepared for a home detention condition can’t be finalised until you have suitable accommodation.

The Magistrate must refer you for an assessment report before they make an ICO. They can do this:

• after you have been found guilty and sentenced
• during sentencing proceedings, after you have been sentenced to prison
• during proceedings to correct a sentencing error.

If you have been sentenced to prison and the Magistrate then refers you for an assessment report, your sentence is stayed. The Magistrate must then decide whether to remand you into custody or grant you bail. If you are granted bail, you must attend court when required. If you don’t, a warrant may be issued for your arrest.

Standard and additional conditions

In addition to an assessment report, the Magistrate will also look at what conditions they can impose to address the risk of you re-offending.

There are two standard conditions that the Magistrate can impose and that you must comply with:

• you must not commit any offence, and
• you must submit to supervision by a community corrections officer.

The Magistrate must also impose at least one of the following additional conditions, unless there are exceptional circumstances:

• home detention
• electronic monitoring condition
• curfew condition
• community service work condition
• rehabilitation or treatment condition
• banning you from drinking alcohol or taking drugs
• non-association condition - banning you from communicating/seeing certain people 
• place restriction condition - banning you from going certain places.

The Magistrate can also include other conditions on your order if they think it is appropriate. The Magistrate can also limit the time that these further conditions are in force. These conditions can’t be inconsistent with the standard conditions or additional conditions, regardless of whether the additional conditions are imposed.

Making an order

When making an ICO, the Magistrate must first sentence you to a term of imprisonment and then direct that you serve your sentence by ICO. The term of the ICO is the same as the prison sentence. The Magistrate can deduct

The Magistrate must impose the standard conditions, additional conditions and any further conditions at the time you are sentenced.

The Magistrate must not set a non-parole period.

The ICO must commence on the day it is made. It can’t be backdated.

You must be present in court for the Magistrate to make an ICO.

Once an order has been made, the Magistrate must ensure that reasonable steps are taken to explain to you, your obligations under the ICO and the consequences of breaching the conditions of the ICO.

Domestic violence offences

The Magistrate can only make an ICO for a domestic violence offence if they are satisfied the victim, and any person that you are likely to live with, will be adequately protected. The Magistrate must not impose a home detention condition if they reasonably believe you will be living with the victim.

ICO not available

An ICO is not available for certain offences, including:

• manslaughter
• murder
• prescribed sexual offences, most of which relate to child victims
• terrorism offences
• breaches of serious crime prevention and public safety orders
• offences involving the discharge of a firearm.

Community service work hours

The maximum number of hours of community service you can be ordered to complete under an ICO or CCO are:

• 100 hours for offences with a maximum prison term of 6 months or less
• 200 hours for offences with a maximum prison term of 6 months to one year
• 750 hours for offences with a maximum prison term of more than one year.

The minimum period that a community service order in an ICO or CCO must be in force is:

• six months for less than 100 hours of community service
• 12 months for 100 to 300 hours of community service
• 18 months for 300 to 500 hours of community service
• two years for more than 500 hours of community service.

Multiple orders

Only one order can be in force for a single offence. However, two or more orders can be in force at the same time for two or more offences.

If you have multiple orders and the conditions in your orders are inconsistent:

• the conditions of an ICO will prevail over the conditions in your CCO, and
• the conditions of a CCO will prevail over the conditions in your CRO.

The standard conditions in any order prevail over additional or further conditions in another order.

Community service work conditions

If you already have a CCO with a community service work condition, and you are given a new order, the new order can’t include a community service work condition if the total number of hours remaining under the existing order and the new order combined is more than 500 hours.

If you already have an ICO with a community service work condition, and you are given a new order, the new order can’t include a community service work condition if the total number of hours remaining under the existing order and the new order combined is more than 750 hours.

Curfew conditions

If you have multiple CCO’s, you don’t have to observe a curfew of more than 12 hours in a 24 hour period. Any more hours are to be disregarded.

You are only required to observe the curfew with the more hours.

If you have an ICO and a CCO, you have to observe:

• the hours set out in the curfew condition in the ICO, or
• a curfew of 12 hours in a 24 hours period.

Any more hours are to be disregarded. 

Imprisonment

Many criminal and driving offences can be punished by imprisonment.

Full time imprisonment is the most serious punishment and should only be given as an option of last resort.

Deciding the penalty

When deciding whether to sentence you to a term of imprisonment, there are three steps that the Magistrate must take.

First, the Magistrate must consider all possible alternative penalties, and be satisfied they are not appropriate.

Second, the Magistrate must determine the term of the sentence. A term of imprisonment usually involves:

• a head sentence, which is the total period of imprisonment imposed for the offence, and
• a non-parole period, which is the minimum time that you must spend in prison before you become eligible for parole, unless the sentence is for six months or less.

The balance of the sentence is the time left after the non-parole period. It can’t be more than one third of the non-parole period, unless the Magistrate decides there are special circumstances for it to be longer.

The length of a prison sentence can range from a few months to many years, depending on the offence.

If you are given a sentence of six months or less, the Magistrate must give their reasons for deciding why:

• no other penalty other than imprisonment was appropriate, and
• they didn’t make an order allowing you to participate in an intervention program, treatment or rehabilitation program.

Third, the Magistrate must determine whether there is an alternative to full-time imprisonment that is available.

Head sentence

The term of imprisonment for a single offence can’t be:

• more than the maximum period that can be imposed for the offence
• less than the shortest period that can be imposed the offence, if any.

The maximum sentence a Local Court Magistrate can impose is:

• two years, for a single offence, or
• five years, for multiple offences.

Commencement of sentence

Your prison sentence will commence on the day it is imposed, unless the Magistrate says otherwise.

When you are sentenced, the Magistrate must specify:

• the day your sentence commences, or is taken to have commenced
• the earliest day on which you will be entitled to be released from custody, or eligible for parole.

If you have been in custody prior being sentenced, the Magistrate may backdate your sentence.

If you are sentenced to consecutive terms of imprisonment, one sentence will commence after the other sentence is finished. The Magistrate can’t order you to serve your sentences consecutively if:

• you are in prison serving a sentence, and
• a non-parole period was set for the sentence you are serving, and
• the non-parole period has expired.

Multiple offences

If you are being sentenced for multiple offences, the Magistrate may impose:

• a separate sentence of imprisonment for each offence, or
• an aggregate sentence for all, or any two or more of the offences.

If you receive an aggregate sentence for two or more offences, the term of an aggregate sentence of imprisonment can’t be:

• more than the sum of the maximum periods of imprisonment that you could have received for each separate offence
• less than the short term of imprisonment that must be imposed for any offence, if any.

The Magistrate may set a non-parole period for all of the offences, after setting the head sentence.

The Magistrate can decline to set a non-parole period for an offence, or aggregate sentence, if it is appropriate to do so because of:

• the nature of the offence, or offences
• your character prior to the offences
• any other penalty you have previously received
• any other reason the Magistrate considers to be sufficient.

Suspended sentences

Before 24 September 2018 a court could give someone a suspended sentence. This meant they were not automatically sent to prison and the sentence was suspended.

If you have previously been given a suspended sentence it will continue for the period imposed by the court. Committing another offence while you on a suspended sentence may mean you are sent to prison.

If you have committed another offence while you are on a suspended sentence, you should get legal advice.  

Licence disqualification

If you are convicted of a driving offence, the court may disqualify you from holding a driver licence for a specified period of time. At the end of the disqualification period, you will need to apply to the Transport for NSW (TfNSW) to get your licence back before you can drive.

There are serious penalties for driving while disqualified, including further disqualification periods, large fines and imprisonment. If your driver licence has been disqualified and you are caught driving, you should get legal advice.

For more information, see Losing your licence.

Recommendation for Transport for NSW to consider your fitness to drive

In some circumstances, the court may make a referral to Transport for NSW (TfNSW) to assess whether you should be driving.

This may happen if some of the material considered by the court raises the question of whether you are medically fit to drive, due to a medical condition, illness or injury.

TfNSW may send you a letter asking you to take a fitness to drive medical assessment. 

For more information, see Getting a medical assessment for Fitness to Drive on the NSW Government website. 

Alcohol Interlock Program

If you have been convicted of a driving offence including alcohol, the court may make an Alcohol Interlock Order. An Alcohol Interlock Order may be made if you have been convicted of:

• a mid-range prescribed concentration of alcohol (PCA) offence 
• a high prescribed concentration of alcohol (PCA) offence,
• a second or subsequent drink driving offence in a 5 year period,
• failing to provide a breath or blood sample when requested by police, or
• other serious driving offence involving alcohol.

An Alcohol Interlock Order means you will have to complete a disqualification period during which you cannot drive. When the disqualification has ended, you may be able to obtain an interlock driver licence. If you have an interlock driver licence, you are only allowed to drive vehicles which are fitted with an approved interlock device. This device requires you to provide a breath sample before the vehicle will start. The device must be installed and regularly maintained by an approved provider. Tampering with the device is an offence.

If you do not obtain the interlock driver licence, you will be disqualified from driving for 5 years from the date of conviction (as at 1 February 2015).

The court can make an exemption order that means you do not have to obtain an interlock driver licence or interlock device at the end of your disqualification period. However, an exemption order can only be made in limited circumstances.

An exemption order can be made if you prove: 

• you do not have access to a vehicle which an interlock device can be installed, or
• you have a medical condition (and evidence) that stops you from being able to provide the interlock device with enough breath to operate.

If you have been convicted of a first offence, mid-range drink driving offence the court may give an exemption order if you prove: 

• you do not have access to a vehicle which an interlock device can be installed, or
• you have a medical condition (and evidence) that stops you from being able to provide the interlock device with enough breath to operate. 

If you have been convicted of a first offence, mid-range drink driving offence the court may give an exemption order if you prove: 

• that the making of a mandatory interlock order would cause severe hardship and 
• that it is more appropriate for the court to make an interlock exemption in all the circumstances than the making of a mandatory interlock order.  

For more information, see Alcohol Interlock Program on the NSW Government website.

Sentence conversion

On 24 September 2018 major sentencing reforms commenced in New South Wales.

Even if you were sentenced before this date, you may be affected by the change.

Some types of sentences, which were given before the commencement date, were automatically converted (changed into) a new type of sentence.

The table below outlines sentence conversion: 

For more information about how your current sentence may be affected, you should get legal advice.