Part 1 Preliminary
1 Name of Regulation
This Regulation is the Crimes (Sentencing Procedure) Regulation 2017.
2 Commencement
This Regulation commences on 1 September 2017 and is required to be published on the NSW legislation website.Note—This Regulation replaces the Crimes (Sentencing Procedure) Regulation 2010 which is repealed on 1 September 2017 by section 10 (2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation:approved form means a form approved by the Minister.the Act means the Crimes (Sentencing Procedure) Act 1999.Note—The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.(2) Notes included in this Regulation do not form part of this Regulation.(3) A reference in this Regulation to a community corrections officer is, where the offender is subject to supervision by a juvenile justice officer, taken to be a reference to a juvenile justice officer within the meaning of the Children (Detention Centres) Act 1987.Note—Juvenile justice officers are referred to in certain provisions of the Crimes (Sentencing Procedure) Act 1999 (see sections 89–91 and 99–100) and the Crimes (Administration of Sentences) Act 1999 (see sections 107E and 108E).cl 3: Am 2018 (537), Sch 1 [1].
Part 2 Sentencing procedures generally
Division 1 General
4 Lists of additional charges
(1) A list of additional charges under section 32 of the Act is to be in the approved form.(2) For the purposes of section 32 (4) (c) of the Act, the following persons and classes of persons are prescribed:(a) police officers,(b) persons employed in the Transport Service in any role designated by the Secretary of the Department of Transport as a senior legal role,(c) the Point to Point Transport Commissioner appointed under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016,(d) persons employed in the Department of Finance, Services and Innovation in any role designated by the Secretary of that Department as a senior legal role,(e) the Commissioner for Fair Trading, Department of Finance, Services and Innovation or, if there is no person employed as Commissioner for Fair Trading, the Secretary of that Department,(f) the General Counsel, Ministry of Health,(g) the Chief Health Officer, Ministry of Health,(h) the Secretary of the Ministry of Health,(i) the Chief Executive Officer of the Food Authority,(j) the Secretary of the Department of Planning and Environment,(k) the Secretary of the Department of Industry,(l) officers or employees of an approved charitable organisation within the meaning of the Prevention of Cruelty to Animals Act 1979 designated by the chief executive of the organisation.
5, 6 (Repealed)
cll 5: Rep 2018 (56), cl 3.
cll 6: Rep 2018 (56), cl 3.
7 Warrants of commitment
A warrant for the committal of an offender referred to in section 62 (1) of the Act is to be in the approved form.
8 Consultation with victim and police in relation to charge negotiations
For the purposes of section 35A (3) of the Act, the following persons and classes of persons are prescribed:(a) in relation to proceedings being prosecuted by a police prosecutor—police officers,(b) the Commissioner for Fair Trading, Department of Finance, Services and Innovation or, if there is no person employed as Commissioner for Fair Trading, the Secretary of that Department,(c) persons employed in the Department of Finance, Services and Innovation in any role designated by the Secretary of that Department as a senior legal role.
Division 2 Victim impact statements
pt 2, div 2: Subst 2018 No 88, Sch 4.
9 Persons who may assist victim
(1) For the purposes of section 30 (4) of the Act, a person who may be a representative of a victim for the purposes of providing information for inclusion in a victim impact statement or objecting to the tendering of a victim impact statement are as follows:(a) a person having parental responsibility for the victim,(b) a member of the victim’s immediate family,(c) the victim’s carer,(d) a person who is important in the victim’s life or any other person chosen by the victim.(2) For the purposes of section 30 (4) of the Act, and without limiting the ability of a victim to designate any person as a representative to prepare a victim impact statement, a person who may be a representative of a victim for preparing a victim impact statement is a qualified person designated by:(a) the victim or victims to whom the statement relates, or(b) a representative referred to in subclause (1) who is providing information for inclusion in a victim impact statement, or(c) the prosecutor in the proceedings to which the statement relates.(3) For the purposes of section 30 (4) of the Act, a person who may be a representative of a victim for the purposes of reading a victim impact statement is:(a) a person designated by the victim or victims to whom the statement relates, or(b) if a representative referred to in subclause (1) is providing information for inclusion in a victim impact statement, a person (including the representative) designated by the representative.(4) In this clause, qualified person means:(a) a counsellor who is approved under section 31 of the Victims Rights and Support Act 2013, or(b) any other person who is qualified by training, study or experience to provide the particulars required for inclusion in a victim impact statement.cll 9–11: Subst 2018 No 88, Sch 4.
10 Form of victim impact statements
A victim impact statement:(a) must be legible and may be either typed or hand-written, and(b) must be on A4 size paper, and(c) must be no longer than 20 pages in length including medical reports or other annexures (except with the leave of the court).Note—Victims Services provides information about victim impact statements, including the suggested form of a victim impact statement, on its website at www.victimsservices.justice.nsw.gov.au.cll 9–11: Subst 2018 No 88, Sch 4.
11 Content of victim impact statements
(1) A victim impact statement must identify the victim or victims to whom it relates.(2) The statement must include the full name of the person who prepared the statement.(3) If the person who prepared the statement is not a victim to whom it relates (or a representative referred to in clause 9 (1) who is providing information for inclusion in a victim impact statement):(a) the statement must indicate that the victim or victims do not object to the statement being tendered to the court, and(b) the victim or victims (or the victim’s representative) must sign the statement to verify that they do not object.(4) If a victim to whom the statement relates is a family victim, the statement must identify the primary victim and state the nature and (unless a relative by blood or marriage) the duration of that victim’s relationship with the primary victim.(5) If a victim’s representative acts on behalf of a primary victim for the purpose of providing information for inclusion in the victim impact statement, the statement must indicate the name of that person and the nature and (unless a relative by blood or marriage) the duration of that person’s relationship with the primary victim.(6) A victim impact statement must not contain:(a) anything that is offensive, threatening, intimidating or harassing, or(b) any suggestion or views about the sentence to be imposed, or the matters that the sentencing court should take into account, or(c) anything else that is not referred to in section 28 of the Act or that is otherwise not contemplated by the Act to be included in the statement.cll 9–11: Subst 2018 No 88, Sch 4.
11A Victim impact statements by victims of offenders found not guilty by reason of mental illness
(1) This clause applies to a victim impact statement prepared for the purposes of section 30L of the Act.(2) The statement may include the following matters:(a) the risk that the release of the offender would pose to the victim,(b) conditions that should be imposed on the release of the offender,(c) any other matter relating to the victim that the victim thinks should be considered in deciding the conditions of release for the offender.(3) The court may, if a victim impact statement is received by the court, invite the victim or the person who prepared the statement to add to the statement a matter referred to in subclause (2) or to make submissions on any of those matters.(4) Clause 11 (3) does not apply to a victim impact statement to which this clause applies.cl 11A: Ins 2019 (208), Sch 1 [1].
12 Tendering of victim impact statements
Only one victim impact statement may be tendered in respect of:(a) the primary victim, or(b) if the primary victim has died as a result of the offence—each family victim.cl 12: Subst 2018 No 88, Sch 4.
Division 3 Assessment reports for courts
Note—
A request for an assessment report about an offender may be made at any time during sentencing proceedings. An offender is defined as “a person whom a court has found guilty of an offence”. See sections 3 and 17C of the Act.
pt 2, div 3 (cll 12A, 12B): Ins 2018 (537), Sch 1 [2].
12A Assessment reports generally
(1) An assessment report in respect of an offender is to address the following matters:(a) the offender’s risk of re-offending,(b) any factors related to the offender’s offending behaviour,(c) any factors that may impact on the offender’s ability to address his or her offending behaviour,(d) how the matters referred to in paragraphs (b) and (c) would be addressed by supervision and the availability of resources to do so,(e) any conditions that would facilitate the effective supervision of the offender in the community,(f) the offender’s suitability for community service work,(g) a summary of the offender’s response to any previous period of management in the community in respect of any relevant order,(h) any additional matters that the court wishes to have specifically addressed.(2) Subclause (1) does not limit the matters that may be addressed in an assessment report.(3) An assessment report need not address a matter referred to in subclause (1) if the matter is not relevant to the circumstances relating to the offender or the court does not require the matter to be addressed.pt 2, div 3 (cll 12A, 12B): Ins 2018 (537), Sch 1 [2].
12B Assessment reports for home detention condition
(1) An assessment report in relation to a home detention condition must address the following matters:(a) the offender’s suitability for home detention,(b) any risks associated with imposing home detention, including any risks to the offender or any other persons, including children, and any strategies that could manage the risks,(c) any other matters relevant to administering an intensive correction order with a home detention condition.(2) If it appears that the offender does not have accommodation suitable for the purposes of home detention, the assessment report is not to be finalised until reasonable efforts have been made by a community corrections officer, in consultation with the offender, to find suitable accommodation.(3) Subclause (1) does not limit the matters that may be addressed in an assessment report.pt 2, div 3 (cll 12A, 12B): Ins 2018 (537), Sch 1 [2].
Division 4 Offenders affected by mental illness or cognitive impairment
pt 2, div 4 (cll 12C–12E): Ins 2019 (208), Sch 1 [2].
12C Provision of copy to Mental Health Review Tribunal
A court must give to the Mental Health Review Tribunal a copy of a victim impact statement relating to an offender that the court received under section 30L of the Act as soon as practicable after the court makes a decision that results in the offender becoming a forensic patient within the meaning of the Mental Health (Forensic Provisions) Act 1990.pt 2, div 4 (cll 12C–12E): Ins 2019 (208), Sch 1 [2].
12D Victim impact statements in proceedings before Mental Health Review Tribunal
(1) This clause applies if a victim impact statement made by or on behalf of the victim of a forensic patient is given to the Mental Health Review Tribunal by a court under section 30N of the Act.(2) The Tribunal is to acknowledge the victim impact statement at each review by the Tribunal of the forensic patient and is to consider and take into account the statement before determining an application by the forensic patient for release or a grant of leave.(3) The victim may, with the consent of the Tribunal, update the victim impact statement.(4) The Tribunal may disclose the contents of a victim impact statement to the forensic patient’s legal representative only in the circumstances in which, and subject to any conditions on which, the court permitted the disclosure of the victim impact statement.(5) Despite subclause (4), if information contained in a victim impact statement was not disclosed by the court to the forensic patient’s legal representative or is inserted in an updated victim impact statement, the Tribunal may, in the interests of justice for the purposes of determining an application for release or a grant of leave, disclose the information to:(a) the legal representative, or(b) if the forensic patient does not have a legal representative, to an Australian lawyer appointed by the Tribunal for that purpose.(6) The Tribunal may direct that the information referred to in subclause (5) must not be disclosed by the legal representative to the forensic patient and may also, in that case, consent to general information about the statement being disclosed to the forensic patient.pt 2, div 4 (cll 12C–12E): Ins 2019 (208), Sch 1 [2].
12E Submissions by designated carers and principal care providers
For the purposes of section 30M of the Act, the court may seek written or oral submissions from a designated carer or principal care provider as to the following:(a) the risk that the release of the offender would pose to the victim,(b) conditions that should be imposed on the release of the offender,(c) any other matter that the designated carer or principal care provider thinks should be considered in deciding the conditions of release for the offender.pt 2, div 4 (cll 12C–12E): Ins 2019 (208), Sch 1 [2].
Part 3 Community-based orders
Note 1—
If, in sentencing an offender, the sentencing court makes an intensive correction order in respect of the offender (with conditions imposed by the sentencing court under the Act), conditions of the intensive correction order are afterwards imposed, varied or revoked by the Parole Authority rather than the sentencing court.
Note 2—
Section 20AB of the Crimes Act 1914 of the Commonwealth provides for intensive correction orders under State legislation to be available for federal offences in certain circumstances. The Parole Authority’s powers in relation to administering intensive correction orders (including imposing, varying or revoking conditions of an order or providing permissions in relation to conditions of an order) extend to intensive correction orders for federal offences. Section 20AC of that Act in effect requires breaches of intensive correction orders for federal offences to be dealt with by the sentencing court.
Note 3—
Sections 69, 89 and 99 of the Act provide that certain orders and conditions must not be made or imposed in relation to offenders who reside or intend to reside in another State or Territory, unless that State or Territory is an approved jurisdiction. (Section 69 relates to making intensive correction orders, section 89 relates to imposing supervision conditions and community service work conditions on community correction orders, and section 99 relates to imposing supervision conditions on conditional release orders.)
No States or Territories are currently declared by the regulations to be approved jurisdictions for the purposes of section 69, 89 or 99 of the Act.
pt 3: Subst 2018 (537), Sch 1 [3].
13 Procedure for imposition, variation or revocation of additional or further conditions of community correction orders or conditional release orders
(1) An application to a court for the imposition, variation or revocation (under section 89, 90, 99 or 99A of the Act) of an additional or further condition of a community correction order or conditional release order must be in writing.(2) The court to which an application is made must fix a date for the hearing of the application, being a date not earlier than 14 days after, and not later than 3 months after, the date the application is filed.(3) The court may vary or waive a requirement imposed by subclause (2).(4) If the court fixes a date for the hearing, a copy of the application must be given not later than 5 days before the date fixed for the hearing of the application:(a) to the offender (unless the offender’s whereabouts are unknown or the court decides to deal with the matter under subclause (6) without the offender being present), if the applicant is a community corrections officer, or(b) to a community corrections officer, if the applicant is an offender.(5) For the purposes of subclause (4), the application may be given to a person by the court or by the applicant:(a) by serving it or causing it to be served on the person personally, or(b) by email to an email address, or by other electronic means, specified by the offender or a community corrections officer for the service of documents of that kind, or(c) in the case of notice to the offender—by sending it or causing it to be sent by post to the person’s address as last known to Community Corrections, or(d) in the case of notice to a community corrections officer—by sending it or causing it to be sent to the officer’s work address or to an office of Community Corrections.(6) The court may deal with the matter with or without parties being present and in open court or in the absence of the public.(7) The court:(a) must cause notice of the outcome of the application to be given to the offender, and(b) must, as soon as practicable after the application is dealt with, cause notice of the outcome to be given to Community Corrections if the court:(i) adds, varies or revokes a condition of a community correction order or conditional release order that is subject to a supervision condition or community service work condition, or(ii) imposes a supervision condition on a community correction order or conditional release order or a community service work condition on a community correction order.(8) If the court imposes, adds or varies a condition, the court must take reasonable steps to explain to the offender (in language that the offender can readily understand):(a) the offender’s obligations under the condition, and(b) the consequences that may follow if the offender fails to comply with those obligations.(9) An order of the court is not invalidated by a failure to comply with subclause (8).(10) The court may vary or waive a requirement imposed by subclause (7) (a) or (8).(11) In this clause, Community Corrections means the Community Corrections Division, Department of Justice.cll 13: Subst 2018 (537), Sch 1 [3].
14 Community service work—maximum hours and minimum periods (ICO or CCO)
(1) For the purposes of sections 73A and 89 of the Act, the maximum number of hours that may be specified for community service work in an additional condition of an intensive correction order or community correction order is:(a) 100 hours—for offences for which the maximum term of imprisonment provided by law does not exceed 6 months, or(b) 200 hours—for offences for which the maximum term of imprisonment provided by law exceeds 6 months but does not exceed 1 year, or(c) 500 hours if the order is a community correction order—for offences for which the maximum term of imprisonment provided by law exceeds 1 year, or(d) 750 hours if the order is an intensive correction order—for offences for which the maximum term of imprisonment provided by law exceeds 1 year.(2) For the purposes of sections 73A and 89 of the Act, the minimum period that a community service work condition of an intensive correction order or community correction order must be in force is:(a) the period of 6 months—if the number of hours of community service work required to be performed does not exceed 100 hours, or(b) the period of 12 months—if the number of hours of community service work required to be performed exceeds 100 hours but does not exceed 300 hours, or(c) the period of 18 months—if the number of hours of community service work required to be performed exceeds 300 hours but does not exceed 500 hours, or(d) the period of 2 years—if the number of hours of community service work required to be performed exceeds 500 hours.cll 14: Subst 2018 (537), Sch 1 [3].
15, 16 (Repealed)
cll 15: Rep 2018 (537), Sch 1 [3].
cll 16: Rep 2018 (537), Sch 1 [3].
Parts 4, 5
17–24 (Repealed)
pt 4: Rep 2018 (537), Sch 1 [3].
Parts 5 (cll 17–24): Rep 2018 (537), Sch 1 [3].
Part 6 Miscellaneous
25 Savings provision
Any act, matter or thing that, immediately before the repeal of the Crimes (Sentencing Procedure) Regulation 2010, had effect under that Regulation continues to have effect under this Regulation.
26 Transitional arrangements for guilty pleas provisions
Part 3 of the Act, as in force before its amendment by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, continues to apply to the determination of the sentence for an indictable offence to which the offender pleaded guilty, if the committal proceedings for that offence:(a) dealt with one or more offences and proceedings for any of those offences commenced before the commencement of Schedule 1 to that Act, and(b) were conducted in accordance with the provisions that were applicable to committal proceedings before the commencement of Schedule 1 to that Act.cl 26: Ins 2018 (170), cl 3.