Recommendation 2
Legislation should provide that written pre-sentence reports ordered by the court, for which sentencing has been deferred, be made available to the prosecution and defence at least the day before the sentencing hearing.

Recommendation 3
Except in death cases, VIS should be admissible at sentencing hearings, in the discretion of the court and at the victim’s option, as an indication of the seriousness of the offence. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) should be repealed.

Recommendation 4
For the purpose of VIS, the “victim” of an offence should be the person against whom the offence was committed or who was a witness to the act of actual or threatened violence and who has suffered personal harm as a direct result of the offence.

Recommendation 5
The definitions of “family victim”, “member of the immediate family” and “primary victim” in s 23A of the Criminal Procedure Act 1986 (NSW) should be repealed, together with s 23B(b) of the Criminal Procedure Act 1986 (NSW).

Recommendation 6
VIS should be signed, or otherwise acknowledged as accurate, by their authors before they are received by the sentencing court.

Recommendation 7
VIS must be tendered in writing and verified on oath.

Recommendation 8
VIS should address the physical, psychological, social and financial consequences of the offence on the victim.

Recommendation 9
Authors of VIS should, in principle, always be subject to cross-examination on their contents.

Recommendation 10
In appropriate cases, the court should mark VIS as confidential exhibits or order their non-publication.

Recommendation 11
The Fines Act 1996 (NSW) should be amended so as to retain sentencing courts’ discretion to order time to pay.

Recommendation 12
Fine option orders should be available in New South Wales.

Recommendation 13
The Fines Act 1996 (NSW) should provide that cancellation of the defaulter’s driver’s licence or vehicle registration should be a sanction for fine default in all cases, subject to the defaulter being allowed to regain his or her licence or registration upon part-payment of the fine on condition that he or she continue to pay off the fine by instalments.

Recommendation 14
Provision should be made for a charge to be placed on a fine defaulter’s property where there is a refined system for registration of interests in the property.

Recommendation 15
Legislation should regulate the use of infringement notices in New South Wales.

Recommendation 16
The term “bond” should replace the term “recognizance” in legislation.

Recommendation 17
The power to impose bonds at common law should be abolished in order that bonds may only be imposed pursuant to a statutory power. An additional statutory power should be created to allow the sentencing court to defer passing a sentence for a period of time in order to assess the offender.

Recommendation 18
The maximum time limit for which a bond can be imposed should be five years.

Recommendation 19
Where a sentencing court attaches an order for compensation or restitution as a condition of a bond, the court should be required to give reasons why this is an appropriate condition in the circumstances of the case, and must be satisfied that the offender will be able to comply with the condition.

Recommendation 20
Suspended sentences should be reintroduced in New South Wales. Appropriate safeguards should be implemented to ensure that injustice does not arise in an individual case where an offender’s sentence has been suspended.

Recommendation 21
Sections 24 and 25 of the Community Service Orders Act 1979 (NSW) should be amended to provide that any court of equal jurisdiction to the supervising court should be able to hear breach proceedings.

Recommendation 22
Breach of a CSO should not constitute a separate offence. Where breach of a CSO has been established and the court chooses to revoke the CSO, the court should re-sentence the offender for the original offence having regard to the work already performed under the CSO.

Recommendation 23
An assigned probation officer should be able to extend the length of a CSO by a maximum of 10 hours for a minor infringement of the order. There should be a right to seek leave to appeal against administrative extension to the court that originally imposed the CSO.

Recommendation 24
Section 5(1) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make periodic detention generally available for terms of imprisonment of three months or less.

Recommendation 25
Section 5A(1)(c) of the Periodic Detention of Prisoners Act 1981 (NSW) should be repealed to remove the exception for domestic violence offences for orders of periodic detention of three months or less.

Recommendation 26

Section 25(1) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make it clear that the court may cancel an order for periodic detention, with or without application, if it appears to the court that there is good reason for doing so.

Recommendation 27

Section 25A(2) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to make it clear that the court may cancel a cumulative order for periodic detention, with or without application, if it appears to the court that there is good reason for doing so.

Recommendation 28

Section 24(1) of the Periodic Detention of Prisoners Act 1981 (NSW) should be amended to give the court a discretion not to cancel an order for periodic detention upon conviction for another offence if, in the circumstances of the case, the court considers this to be appropriate.

Recommendation 29

Before a court cancels an order for periodic detention, it should be satisfied that proper notice of the proceedings for cancellation has been served on the offender. Time for appeal against cancellation of an order for periodic detention should not begin to run until notice of the proceedings for cancellation has been properly served on the offender.

Recommendation 30

A court should not be able to re-sentence an offender following cancellation of an order for periodic detention unless the offender is present before the court.

Recommendation 31

When revoking an order for periodic detention, a court should have the discretion to impose a term of imprisonment which is less than the unexpired portion of the periodic detention order where the court considers this to be appropriate in the circumstances of the case.

Recommendation 32

When imposing a separate sentence of imprisonment of six months or less following revocation of a periodic detention order, a court should have the discretion to set a minimum term.

Recommendation 33

The Justices Act 1902 (NSW) and the Criminal Appeal Act 1912 (NSW) should be amended to confer an express right to seek leave to appeal against cancellation of an order for periodic detention, and against the separate order imposed following cancellation. Where a periodic detention order is cancelled by the Local Court, the defendant should have a right to seek leave to appeal to the District Court. Where a periodic detention order is cancelled by the District Court or by the Supreme Court, the defendant should have a right to seek leave to appeal to the Court of Criminal Appeal.

Recommendation 34

Where an appeal against cancellation of an order for periodic detention is successful, the court upholding the appeal should have a discretion to remould the original sentence of periodic detention where it considers this to be appropriate, taking into account any time served by the periodic detainee in full-time custody following cancellation of the order.

Recommendation 35

The practice of allowing a prisoner serving periodic detention to proceed to Stage II should be discontinued.

Recommendation 36

The Home Detention Act 1996 (NSW) should be amended to remove constraints on eligibility for home detention beyond the requirement of imprisonment for a term of 18 months or less.

Recommendation 37

The Home Detention Act 1996 (NSW) should permit the co-residents of a home detainee to withdraw their consent to an order for home detention.

Recommendation 38

The Home Detention Act 1996 (NSW) should allow an order for home detention to be revoked where there has been a material change in circumstances since the date of imposition of the order. The home detainee, the home detainee’s co-residents, or the Probation and Parole Service should be able to make an application to revoke the order.

Recommendation 39

Proceedings for breach of a home detention order or for revocation of an order where there has been a material change in circumstances should be heard by the court which imposed the order. Where the order was imposed by a Local Court, any Local Court should be able to hear the proceedings.

Recommendation 40

Courts should provide reasons for any decision to impose a sentence of imprisonment of six months duration or less, including reasons why a non-custodial sentence is not appropriate.

Recommendation 41

Section 5(2) and (3) of the Sentencing Act 1989 (NSW) should be repealed.

Recommendation 42

Section 5(1) of the Sentencing Act 1989 (NSW) should be amended to require the Court to set a sentence, and then to set a minimum term as the period during which the prisoner is not eligible for release on parole.

Recommendation 43

There should be a general legislative presumption in favour of concurrent sentences.

Recommendation 44

When imposing a further sentence during the currency of an existing sentence (or sentences) the court should have the power to specify that the further sentence commence:

• at any time before the time the further sentence is imposed;
• at the time the further sentence is imposed; or
• at any time up to the end of the last expiring minimum term or fixed term of the previous sentence(s),

Recommendation 45

Provisions dealing with multiple sentences should incorporate the provisions in s 26B and 34(2) of the Correctional Centres Act 1952 (NSW) and in s 447A of the Crimes Act 1900 (NSW), which should, in turn, be consistent with the procedures set out in the proposed amendments to s 9(3) of the Sentencing Act 1989 (NSW).

Recommendation 46

Section 444(4)(a) and (b) of the Crimes Act 1900 (NSW) should be amended to include sentences of imprisonment to be served partly consecutively and partly concurrently.

Recommendation 47

When imposing a life sentence, the court should have the discretion to determine the sentence with a minimum term at the end of which the offender will be eligible to be considered for release on parole.

Recommendation 48

Section 431B of the Crimes Act 1900 (NSW) should be repealed.

Recommendation 49

Section 13A(9)(a) of the Sentencing Act 1989 (NSW) should be repealed.

Recommendation 50

Section 13A(5) of the Sentencing Act 1989 (NSW) should be amended to provide that a minimum term set under the section is to commence on the date which the court, in its discretion, determines, according to the justice of the case.

Recommendation 51

Section 13A(8)(a) of the Sentencing Act 1989 (NSW) should be repealed, and s 13A(8)(b) should be amended to allow the Supreme Court to direct that an applicant may not re-apply for a period of up to five years from the making of the instant application.

Recommendation 52

The Habitual Criminals Act 1957 (NSW) should be repealed.

Recommendation 53

Sections 115 and 443 of the Crimes Act 1900 (NSW) should be repealed.

Recommendation 54

So much of the Inebriates Act 1912 (NSW) as relates to sentencing should be repealed.

Recommendation 55

The Parole Board should continue to be chaired by a Judge of the Supreme or District Court, either serving, or retired and still eligible to be appointed as an Acting Judge.

Recommendation 56

No more than eight community members should be appointed to the Parole Board.

Recommendation 57

Members of the Parole Board should be appointed for a fixed term of three years.

Recommendation 58

The Government should institute an inquiry into the composition, role and funding of the Serious Offenders Review Council, with particular reference to co-ordination of its role in relation to the Parole Board.

Recommendation 59

The Serious Offenders Review Council should be chaired by a Judge of the Supreme or District Court, either serving, or retired and still eligible to be appointed as an Acting Judge.

Recommendation 60

A decision of the Parole Board should be a decision supported by a majority of members present at a meeting or review hearing, including that of the Chairperson, unless all other members voting are unanimous. The Chairperson should not be entitled to exercise a casting vote.

Recommendation 61

Submissions from victims to the Parole Board addressing the statutory criteria on which a decision to grant parole is based should be sworn, in writing, and at the Board’s discretion, subject to cross-examination.

Recommendation 62

Section 17 of the Sentencing Act 1989 (NSW) should provide that:

(1) (a) In the case of offenders with a sentence of less than eight years, the Board must make a parole order unless the Board is of the opinion that the prisoner, if released from custody, would be unable to remain law abiding, bearing in mind the protection of the public which is paramount.

(b) In the case of a serious offender or a prisoner with a sentence of eight years or more, the Board must not make a parole order unless the Board is of the opinion that the prisoner, if released from custody, would be able to remain law abiding, bearing in mind the protection of the public which is paramount.

(2) In reaching a decision under (1) (a) or (b) the Board must have regard to:

(a) relevant comments (if any) made by the court when sentencing the prisoner;

(b) the antecedents of the prisoner and any special circumstances of the case;

(c) the position of and consequences to the victim, including the victim’s family;

(d) any report prepared for the purpose by or on behalf of the Crown;

(e) other reports as are prescribed by regulations to be furnished to it;

(f) the conduct of the prisoner while in custody, including conduct during previous imprisonment if applicable;

(g) the attitude of the prisoner;

(h) the prisoner’s access to rehabilitation programs while in prison;

(i) the prospects for rehabilitation of the prisoner and the re-entry of the person into the community as a law abiding citizen;

(j) the availability of family, departmental and other support; and

(k) any other matter.

Recommendation 63

Except in the case of serious offenders or offenders with a sentence longer than eight years, there should be a presumption in favour of parole.

Recommendation 64

The criteria on which the Parole Board should determine parole should be the ability of the prisoner, if released from custody, to remain law abiding, bearing in mind the protection of the public which is paramount.

Recommendation 65

The Sentencing Act 1989 (NSW) should specify a comprehensive list of matters to which the Parole Board should have regard when determining whether to make a parole order.

Recommendation 66

The Parole Board should be required to provide a full statement of its reasons for refusing to make a parole order. The Chairperson should deliver the Board’s decision, and any member of the Board should also be permitted to deliver his or her reasons when the Board’s decision is given.

Recommendation 67

Section 25A(6) of the Sentencing Act 1989 (NSW) should be repealed.

Recommendation 68

Sections 23 and 41 of the Sentencing Act 1989 (NSW) should be repealed.

Recommendation 69

Sections 34A and 41A of the Sentencing Act 1989 (NSW) should be repealed.

Recommendation 70

There should be a right to seek administrative review of a decision of the Parole Board by way of an appeal to the Administrative Law Division of the Supreme Court. Rules of Court should be drawn up to facilitate expeditious and inexpensive access to offenders seeking such review.

Recommendation 71

The Parole Board should be empowered to defer consideration of parole for a period of two years after a refusal to make a parole order. The Board should be required to give reasons for any deferral.

Recommendation 72

Regulations should permit the Parole Board to order a period of supervision longer than three years.

Recommendation 73

Legislation should give courts the discretion to defer determining a sentence pending the referral of the matter to a conference.

Recommendation 74

Where participation of a victim is a component of a conference, the victim must freely consent to taking part in the proceedings, although refusal to take part need not prevent the proceedings taking place.

Recommendation 75

An offender must freely consent to taking part in any conference.

Recommendation 76

An offender must have the opportunity to seek and receive proper legal advice before consenting to take part in a conference.

Recommendation 77

An offender must admit guilt before being able to take part in a conference.

Recommendation 78

There should be a prohibition on the publication of proceedings of any conference, and any disclosures made during such proceedings should be inadmissible in any judicial or quasi-judicial proceedings other than the sentencing hearing to which it relates.

Recommendation 79

Section 438 of the Crimes Act 1900 (NSW) should be amended to clarify the power of Local Courts to make restitution orders.

Recommendation 80

Section 438 of the Crimes Act 1900 (NSW) should be amended to give the courts power to order the return of property to its rightful owner at the completion of the proceedings regardless of conviction.

Recommendation 81

The Confiscation of Proceeds of Crime Act 1989 (NSW) should be amended to allow for partial forfeiture.

Recommendation 82

Statutory provisions relating to sentencing should be consolidated.

Recommendation 83

Statutory provisions relating to sentencing should be consolidated in two separate statutes, a Sentencing Act and a Sentencing Administration Act.

Recommendation 84

Procedural provisions should be removed from the Crimes Act 1900 (NSW) and placed in the Criminal Procedure Act 1986 (NSW).

Recommendation 85

Consolidated sentencing legislation should expressly provide a statement of the purposes for which a court may impose a sentence.

Recommendation 86

The terms “penal servitude”, “hard labour” and “light labour” should be abolished and legislation should provide only that a “term of imprisonment” be imposed.

Recommendation 87

All distinctions between felonies and misdemeanours should be abolished.