Legal Advice On The Amended Sentencing Regime Under The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Can Be Found In The Essay. (70 Characters)

The Crimes (Sentencing Procedure) Act, 1999 and its amendments for community-based sentencing orders

Issue- Legal Advice on the amended sentencing regime under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

The crimes (Sentencing procedure) Act, 1999 authorizes a court to impose a sentence on any person who is found guilty of any criminal offense. The main objective of the court is to punish the offender by the circumstances, to help the offender in providing rehabilitation, etc. Before this act was introduced the courts use to rely upon the principles which were discussed in higher courts, the 1999 act set out the provision for the courts to punish the offender to rehabilitate him and to ensure that the offender is adequately punished, to prevent the crime by deterring offenders and other persons[1].

The Crimes Act (Sentencing Procedure) Act, 2017 has been amended and was passed on 18^th October 2017 to improve the nature and quality of the community-based sentencing orders[2]. It is an amendment of the previous legislation relating to the Crimes (Sentencing Procedure) Act, 1999 to provide sentenced punishment alternatives that can be provided to the courts for those persons who have been placed guilty of offenses and also to abolish the home detention orders, suspended sentences and community service orders, apart from that make certain consequential amendments to the crimes[3]. The new regime aims to protect the community by reducing the crime rates as well as reoffending including the reduction in the number of offenders receiving the sentenced punishment. So there has been an amendment in the following legislation to provide new regulations and reduce the crime sentences. The amended legislation i.e. Crimes Act (Sentencing procedure) Act, 2017 has been replaced by the Crimes (Sentencing procedure) Act, 1999, where three procedures of sentencing were introduced are (Community Correctional Order) CCO, Intensive Correctional order (ICO), and the Conditional release order(CRO) apart from that there have been conversions in the sentences from the old to the new act[4].

 Like there was a Home detention order in the old sentence which has been now varied to intensive correctional order with the home detention condition attached. Under the old sentence, the intensive correction order has been replaced with the new ICO and the same conditions and standards. Besides that, under the old act, section 12 talked about the suspended whereas under the new act the sentence suspended, remains in force unless breached and revoked, includes re-sentence to full-time imprisonment and Re-sentence to the new ICO[5]. The old act talks about the community service orders only whereas under the new act there is the implementation of the community correction orders with the inclusion of the community service conditions. Apart from that under the old act section 9 talks about the good behavior bond which has been replaced under the new act as a Community correction order with the same standard conditions. Besides that, under the old act section 10(1)(b) talks about good behavior whereas the new act talks about the conditional release order without any conviction with the same standard conditions[6].

The Legislation also includes the Crimes (Domestic and Personal Violence) Act 2007 regime, which is based to prevent domestic violence against women, the court under this act is empowered to make orders to protect women from any form of domestic violence. As per section 9(a) of the act, intimidation is defined as conduct that amounts to harassment or molestation by any means, which could include telephone, text messaging, e-mailing, or harassing in any form of technology, that makes a person fear of his or her safety or any sort of conduct that can cause a threat of injury to the person or the property[7]. Some of the amendments have also been made in this legislation which is a part of the same Act, where if a person has committed any act of domestic violence he will be guilty of the same and will be liable for full-time imprisonment which will be in the form of supervised order, in the form of ICO, CCO or CRO, where the person will be undergoing a sentence of imprisonment through the constant supervision[8].

Crimes (Domestic and Personal Violence) Act 2007 regime and Amendments

The crimes (Domestic and Personal Violence) Act 2007, also includes provisions relating to the domestic violence orders as per 14 of the act no person can contravene, the prohibition orders, the section as follows:

The offense of Contravening Apprehended Violence Order

(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offense.

Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both[9].

You and your wife got separated because of which you got furious and threatened to kill, so she had asked for the security orders from the court under the crimes (Domestic Violence) Act, 2017 orders restricting or prohibiting you from approaching her since she has now feared her safety[10]. 

Since you have admitted to having contacted your wife despite being prohibited not to meet or contact your wife in any manner, you have committed a breach of the order and you will be liable for the punishment provided. So You have been charged for breaching the prohibition or restriction order under section 14 of the Crimes (Domestic and Personal Violence) Act 2007, under which you were prohibited not to contact your wife since you treated your wife to kill[11]. As per our advice, you would have first asked the court the legal permission to meet your wife in case you wanted to contact her. About your concern about you being stopped from seeing your children, you can ask your wife for an outside court settlement where you can arrange for meeting your children on weekends so that you can have a bonding with your children[12].

Moreover, in your case Section 21 of the Crimes (Domestic and Personal Violence), Act 2007 applies which mention referring the matters to mediation, the section as follows Section 21 Referral of matters to mediation[13]

 It states that a request for violence order can be made to the court (a) when keeping in view whether to make the order or not, will first refer the protected person as well as the defendant for mediation firstly under the community justice centers Act, 1983 unless the court contends that there is a good reason for doing so. (b) The court also has the option to send both the protected person as well as the defendant for mediation[14].

In your case you have been charged with contravening an AVO (Apprehended Violence Order) under Section – 14 of the act which has been explained above already and in NSW contravening an apprehended violence order carries a maximum penalty of 2 years and a fine of 50 penalty units[15]. Further, to establish the charge of AVO, it has to be established that there was an act of violence along with the breach of the order.

Since you have breached the order but has refrained from committing any act of violence so you will not be liable for any grave punishment rather you can apply under Section 21 of the act for the mediation or outside settlement with your spouse and can arrange a meeting with your children or can ask for the custody orders of your children by proving in the court your financial stability as well as capability of taking care of your children. In such a situation your sentencing order for breaching the AVO might be reduced.

I recommend you that since you have breached the AVO after you have threatened your wife to kill due to which she feared a threat to her life, I would recommend you to apply for an order under Section 21 of the Crimes Act, 2017 for an out of court settlement since the threatening was only verbal without any act of violence committed you can be discharged under section 14 and will not be liable for undergoing any form of imprisonment.  By opting for an out-of-court settlement you can convince your wife to let you and your child bond by meeting every week or otherwise. Moreover, as per our views, you can also ask for the custody of your child by proving in court your financial stability and ensuring the court that you will be a better parent for your child.

References

Stobbs, Nigel, Daniel Hunter, and Mirko Bagaric, "Can Sentencing Be Enhanced By The Use Of Artificial Intelligence?" (2017) 5 41.

McNamara, Luke, et al, "Understanding Processes Of Criminalisation: Insights From An Australian Study Of Criminal Law-Making" (2021) 21(3).

Spohr, Thomas, "Criminal Law: New Sentencing Options: Giving With One Hand And Taking With The Other" (2018) 46 Law Society of NSW Journal.

 Freiberg, Arie, "Suspended Sentences In Australia: Uncertain, Unstable, Unpopular, And Unnecessary" (2019) 82 Law & Contemp. Probs.

 Bartels, Lorana, et al, "Bail, Risk And Law Reform: A Review Of Bail Legislation Across Australia" (2018) 42 Criminal Law Journal.

Haberman, Cory P., "Overlapping Hot Spots? Examination Of The Spatial Heterogeneity Of Hot Spots Of Different Crime Types" (2017) 16(2) Criminology & Public Policy.

Thomas, Kate, Kate Fitz- Gibbon and JaneMaree Maher, "The Use Of Protection Orders In Response To Adolescent Family Violence: Mapping Divergent Australian Approaches And The Merits Of This Criminal Justice Intervention" (2019) 31(4) Current Issues in Criminal Justice.

Conditions, Manny, "Major Changes To NSW Sentencing Law", Conditsis.Com (Webpage, 2018) https://www.conditsis.com/articles/publications/major-changes-to-nsw-sentencing-law/

New South Wales Consolidated Acts, "CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007", Austlii.Edu.Au (Webpage, 2020) https://www5.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/s14.html

 New South Wales Consolidated Acts, "CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 14", Austliee.Edu.Au (Webpage, 2018) https://www5.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/s14.html

 New South Wales Consolidated Acts, "CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 21", Austlii.Edu.Au (Webpage, 2018) https://www5.austlii.edu.au/au/legct, is/nsw/consol_act/capva2007347/s21.html

NSW Legislation, "NSW Legislation", Nsw.Gov.Au (Webpage, 2022) https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1999-092