Table of Contents
Terms of Reference
Participants
Summary of recommendations
1. INTRODUCTION
THE COURSE OF THE REFERENCE
Developments since DP 33
THE COMMISSION'S APPROACH TO REFORM OF SENTENCING LAW
The necessity for wide judicial discretion in sentencing
The incidence of imprisonment in New South Wales
THE PRACTICAL IMPLICATIONS
2. SOME PROCEDURAL ASPECTS OF THE SENTENCING HEARING
PRE-SENTENCE REPORTS
Description
Availability of pre-sentence reports
Legislative base
Accessibility and resources
Contents of pre-sentence reports
VICTIM IMPACT STATEMENTS
Admissibility of VIS
Generally
The definition of "victim"
Death cases
The court's discretion
The victim's option
Matters otherwise before the court
Procedural considerations
Form of VIS
Authentication of VIS
Contents of VIS
Cross-examination
Confidentiality
3. FINES
Inequities in court-imposed fines
The day fine
Fine option orders
Fine enforcement and Penalties for fine default
Fine enforcement under the Fines Act 1996 (NSW)
Imprisonment as a final sanction for fine default
Alternative sanctions to imprisonment for fine default
Cancellation of driver's licence or vehicle registration
Placing a charge on the defaulter's property
Use of home detention
Other issues in relation to penalties for fine default
Retrospective cutting out of a fine while in custody
Issuing warrants for traffic offence fine default
Infringement or penalty notices
Infringement notices and consolidated sentencing legislation
4. PROBATION
Terminology
Consolidation of probation orders
Common law bonds
Legislative limitations on conditions
Time limits on bonds
Restitution and compensation
Reintroduction of suspended sentences
5. COMMUNITY SERVICE
AVAILABILITY
Offences attracting CSOs
Mandatory suitability assessments
Breach procedures
The supervising court
A separate offence for breach of a CSO
Intermediate strategies for dealing with breach of a CSO
Standard of proof to determine breach
6. PERIODIC DETENTION
Availability
Access to periodic detention centres
Periodic detention for sentences of three months or less
Short term orders for domestic violence offences
NON-ATTENDANCE
Assessing suitability
Administrative action in response to non-attendance
Powers of revocation
Revocation powers under s 25
Revocation powers under s 24
Notice to cancel
Re-sentencing to full-time imprisonment following revocation
Rights of appeal from cancellation of a periodic detention order
Consequences of successful appeals from cancellation
STAGE II
Arguments in favour of Stage II
Arguments against Stage II
Alternative models for Stage II
Setting minimum terms
Discretion to exclude Stage II
Legislative regulation of Stage II
Discontinuation of Stage II
7. HOME DETENTION
The Home detention act 1996
Availability of front-end home detention
An alternative to imprisonment
Legislative constraints on eligibility
Assessing suitability
Suitability of proposed residence
Impact of home detention on an offender's family
Revocation of an order for home detention
Power to revoke an order where there has been a material change in circumstances
Hearing of revocation proceedings
Notice of revocation
Back-end home detention
8. SENTENCES OF IMPRISONMENT
SENTENCES OF IMPRISONMENT OF SIX MONTHS OR LESS
REMISSIONS
DETERMINING SENTENCES
Special circumstances
Sentencing methodology
MULTIPLE SENTENCES
Concurrent and cumulative sentences
Imposition of further sentences
Deficiencies in the current scheme
Proposals for reform
Cumulative sentences, escape from lawful custody and prison offences
Restrictions on imposing cumulative sentences
Cumulative sentences and a right to be released on parole
9. LIFE SENTENCES
Life sentences with minimum terms
Mandatory life sentences
RE-DETERMINATIONS under section 13A
Matters to be taken into account when considering applications
Section 13A(9)(a)
Section 13A(9)(d)
Commencement of minimum terms
Restrictions upon application for re-determination of life sentences
10. PROTECTIVE SENTENCES
INDEFINITE SENTENCES
ADDITIONAL SENTENCES
Habitual Criminals Act 1957
Additional sentences upon second or third convictions
Crimes Act 1900 (NSW) s 443
Crimes Act 1900 (NSW) s 115
Inebriates Act 1912
The Commission's views
PREVENTIVE DETENTION
11. PAROLE
RETENTION OF PAROLE
RESPONSIBILITY FOR DETERMINING RELEASE TO PAROLE
Automatic release to parole
Setting the limit of automatic parole
THE INSTITUTIONAL STRUCTURE OF PAROLE
Parole Board
Membership of the Parole Board
Judicial members
Community members
Term of appointment
Professional development for Parole Board members
Serious Offenders Review Council
PAROLE BOARD PROCEDURES
Powers of the Chairperson
Submissions from victims
Section 49 certificates - withholding information from an offender
Revocation procedures
THE PAROLE DECISION
Duty of the Parole Board
Presumptions regarding grant of parole
Applicable criteria
Matters to be considered by the Board
Reasons for refusing parole
Release under exceptional circumstances
REVIEW OF PAROLE BOARD DECISIONS
Appeal on the merits
Sentencing Act 1989 (NSW) s 23 and 41
Administrative review
RECONSIDERATION AFTER REFUSAL OF PAROLE
Supervision in excess of three years
12. CONFERENCING
THE NATURE OF CONFERENCING
RESPONSE TO DP 33
LEGISLATIVE RECOGNITION OF CONFERENCING
Legislative safeguards
Consent of participants
Legal advice for offenders
Admission of guilt
Prohibition on publication of proceedings
13. MATTERS ANCILLARY TO SENTENCING
Reparation orders
Restitution
Compensation
Offender's ability to pay
CONFISCATION ORDERS
Relationship to sentencing
Partial forfeiture
14. CONSOLIDATION OF SENTENCING LEGISLATION
Consolidation of SENTENCING law
The rationale of sentencing
Incorporation of common law principles
Abolition of archaic concepts and TERMINOLOGY
Penal sentences
Felonies and misdemeanours
APPENDIX A: Submissions received
APPENDIX B: Consultations
Table of legislation
Table of cases
Select bibliography
Index
