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Recommendation 117
This recommendation is assigned to CSNSW.
Recommendation
That where in any jurisdiction the consequence of a breach of a community service order, whether imposed by the court or as a fine default option, may be a term of imprisonment, legislation be amended to provide that the imprisonment must be subject to determination by a magistrate or judge who should be authorised to make orders other than imprisonment if he or she deems it appropriate.
Context
The Royal Commission considered the consequences for a breach of a community service order across some jurisdictions. Recommendation 117 is directed at removing mandatory imprisonment for a breach of a community service order and providing judicial officers with discretion in whether to imprison or impose a different order.
Status: Implemented
Community service orders no longer exist as a standalone order in NSW– community service may be a condition of Intensive Corrections Orders (ICOs) or Community Corrections Orders (CCOs).
- Serious breaches of ICOS are considered by the State Parole Authority (SPA) which includes a chairperson who is a judicial member.
- Serious breaches of CCOs are referred to the sentencing court.
Detail of implementation
2018 Sentencing Reforms
The sentencing reforms introduced in 2018 if community service orders no longer exist as a standalone order. Community service work conditions can be imposed on IICO and CCOs but cannot be imposed on CROs.
Community Corrections Officers have authority to deal with minor breaches of conditions in real time.
For more serious breaches of ICOS, offenders are referred to the SPA. More serious breaches of CCOs are referred back to the court that made the order (or a court of like jurisdiction or superior jurisdiction).
A court’s power to deal with breaches of CCOs is contained in section 107C of Crimes (Administration of Sentences) Act 1999. The procedures for dealing with breaches are set out in cl 329 Crimes (Administration of Sentences) Regulation 2014.
Under Part 7, Division 1 of the Crimes (Sentencing Procedures) Act 1999, breaches of ICOS are referred to the SPA and may be required to serve the remainder of their sentence in custody. The SPA Chair is a former Judge.
Evidence
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