8. Sentencing: principles and options

Updates and background for this project (Digest)

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• Introduction
• Sentencing process
• Sentencing options in NSW

8.1 Decisions concerning sentencing are arguably the most difficult aspects of the role of a judge or a magistrate. The factors involved in determining whether to deprive an offender of his or liberty, or to curtail it in some way, require careful consideration based on principles articulated in human rights instruments, legislation, and supplemented by the common law. Where sentencing discretion is being exercised in regard to offenders with cognitive or mental health impairments, the task of the court is made even harder.

8.2 The sentencing process involves the determination of the appropriate type and severity of penalty that should be imposed on an offender who has been found guilty of, or has pleaded guilty to, a criminal offence. In reaching such a decision, the court weighs a number of considerations to determine the objective seriousness of the offence, as well as examining any subjective factors relevant to the particular offender which may aggravate or mitigate the sentence. If the court decides in the circumstances that a sentence of imprisonment or a semi-custodial sentencing option is appropriate, it becomes the responsibility of the Department of Corrective Services to implement the sentence. As such, although a critical phase, sentencing represents only a part of an offender’s journey through the criminal justice process.

8.3 In undertaking this review, we are cognisant of its limitations, both in terms of the scope of our current inquiry, and the practical “reach” of the sentencing court. Our terms of reference require us to conduct a general review of the “criminal law and procedure” applying to people with cognitive and mental health impairments in relation to a number of aspects of the criminal justice process, including sentencing. The sentencing court has a broad discretion to determine appropriate sentences,¹ taking into consideration the circumstances of each offender. It determines the length of a sentence, whether it is to be served by way of full-time detention or an alternative sentencing option, and the structure in terms of the non-parole period. However, the court is limited in its ability to control the manner in which sentences are implemented. The way in which sentences are carried out, in terms of the day-to-day treatment and experiences of offenders, involves the discretion of other agencies such as the Department of Corrective Services and Justice Health, and is not part of the sentencing process. Accordingly, while we mention the lack of available options for offenders with mental illness or cognitive impairments, and problems concerning coordination between criminal justice agencies, we do so because these are matters of context. We do not raise these matters for consultation, except where directly relevant to the court’s role in the sentencing process.

8.4 In this chapter, we discuss the purposes, principles and other factors that underpin sentencing decisions in NSW, with particular focus on the application of those principles to offenders with cognitive or mental health impairments. We examine the existing sentencing options that apply generally, and the factors that judges and magistrates consider in determining appropriate sentences. In particular, we look at the factors that may make these options more or less appropriate for people with cognitive or mental health impairments. We also look at additional provisions or options that may achieve better sentencing outcomes for people with cognitive or mental health impairments, having regard to the purposes of sentencing, the experience in other jurisdictions, and consistency with the sentencing power of the court. In addition, we consider decisions relating to parole with particular reference to offenders with cognitive and mental health impairments.²

SENTENCING PROCESS

8.5 Sentencing offenders convicted of criminal offences involves a delicate exercise of discretion. It requires the balancing of various factors relating to the objective seriousness of the crime, weighed against other subjective considerations relevant to each particular offender. The main legislative statement on sentencing adult offenders is the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”), which applies to proceedings in the Supreme, District and Local Courts.³ The Children (Criminal Proceedings) Act 1987 (NSW) applies to Children’s Court proceedings.⁴

8.6 Sentencing occurs at a specially convened hearing, generally held a few weeks after the trial has concluded. This gives the Probation and Parole Service time to prepare any reports that have been requested by the court, or are required by law, concerning the offender’s background. These pre-sentence reports can include, among other things, information concerning the defendant’s mental state and prospects of rehabilitation.⁵

8.7 The CSPA articulates the purposes that a sentence should aim to achieve, as well as listing factors that may aggravate or mitigate the severity of the penalty to be imposed. These legislative statements work alongside the common law sentencing principles.

Purposes

8.8 The CSPA provides that the court may impose a sentence on an offender for the following purposes:

(a) to ensure that the offender is adequately punished for the offence;

(b) to prevent crime by deterring the offender and other persons from committing similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender; and

(g) to recognise the harm done to the victim of the crime and the community.⁶

Sentencing principles

8.10 When sentencing any offender, judges apply common law principles of sentencing when determining appropriate penalties in each case. For example, judges will consider issues of proportionality, meaning that the punishment must fit the crime,⁷ and consistency in terms of avoiding inappropriate disparities between punishments given to co-offenders, or ensuring that the sentence is within the range for similar offences.⁸ Another factor is the totality of the sentence where an offender is convicted of more than one offence.⁹

8.11 In addition to the general principles, courts have developed principles specific to sentencing offenders with mental impairments. The most frequently accepted line of authority in NSW culminated in the case of R v Hemsley,¹⁰ where Justice Sperling summarised the following ways in which mental illness is relevant in sentencing:

First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced…

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration…

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person…

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence…¹¹

8.12 An offender’s moral culpability may be reduced where his or her cognitive or mental health impairment is causally related to the commission of the offence. Courts have held that special consideration in sentencing may be justified where an offender’s mental condition affects his or her ability to understand the wrongfulness of the offending conduct, diminishes the ability to make reasoned judgments or to exercise appropriate powers of control.¹²

8.13 If an offender asserts that his or her cognitive or mental health impairment contributed to the criminal conduct, the offender must adduce sufficient evidence, usually expert medical evidence, to establish the claimed connection.¹³ It is not necessary that the impairment motivated or induced the commission of the offence.¹⁴ The existence or absence of a causal relationship does not automatically result in the sentence being respectively reduced or increased, but is a circumstance to be weighed in each case.¹⁵

Deterrence – general and specific

8.14 One of the principles ordinarily applicable to sentencing is that of general deterrence: that is, sentences should operate not only as a punishment for that particular offender, but to deter others in the community from committing similar crimes. However, it is widely accepted by the courts that the principle of general deterrence should be given less weight when sentencing an offender with a cognitive or mental health impairment for two reasons. First, because “such an offender is not an appropriate medium for making an example to others”; and secondly, because “the interests of society do not require such persons to be punished as severely as a person without that disability because such severity is inappropriate to their circumstances”.¹⁶

8.15 The extent to which general deterrence as a consideration should be moderated depends on the circumstances of the case, in particular “upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender”.¹⁷ Weakness or absence of a causal relationship between the offence and the cognitive or mental health impairment may reduce the extent to which general deterrence is moderated.¹⁸ Yet even where no such relationship exists, for example where the impairment manifested after the offence was committed, the weight to be given to general deterrence may still be reduced.¹⁹ However, where the offender acts recklessly, or with knowledge of what he or she is doing, for example, by deliberately neglecting to take medication to prevent psychotic episodes, the mitigation afforded may be reduced or eliminated.²⁰

8.16 Specific deterrence refers to the goal of deterring the particular offender from re-offending, and is another aspect of sentencing that may be modified in the case of an offender with a cognitive or mental health impairment.²¹ Specific deterrence may be moderated if the cognitive or mental health impairment “is such that the offender may not fully appreciate, or understand, the nature of his or her offending, or of the message which the sentence is expected to convey”.²² The rationale for the rule is similar to the reasons for moderating general deterrence.

8.17 The degree to which specific deterrence should be moderated depends on evidence as to “the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both”.²³

8.18 It should not be assumed, however, that the sentence will always be reduced in circumstances where the principles of general or specific deterrence are of little significance. The mental health or cognitive impairment that justifies reducing the weight to be attributed to deterrence might also result in increased weight being given to other considerations such as protection of the community.²⁴

Sentence might “weigh more heavily” on the offender

8.19 While the deprivation of liberty is a serious matter for all offenders, it may weigh more heavily on some offenders than others due to subjective factors, that is, factors personal to the offender. The law recognises that a particular sentence might have a greater impact on a person with a cognitive or mental health impairment than a person without that impairment, and that this should be a factor relevant to sentencing.²⁵

8.20 The special difficulties a person with a cognitive or mental health impairment might experience in prison include exacerbation of symptoms;²⁶ interruption or unavailability of treatment;²⁷ victimisation of the offender by other prisoners;²⁸ and the further punitive effects of solitary confinement imposed for the protection of, or from, other prisoners.²⁹ During the course of our review into people with an intellectual disability in the criminal justice system, we referred to the increased hardship experienced by prisoners with intellectual disabilities occasioned by the disruption to their routine and the consequent diminution of their life skills.³⁰

Protection of the community

8.21 Protection of the community is listed in the CSPA as one of the purposes of sentencing, and is also a relevant principle to consider when sentencing offenders with cognitive and mental impairments.³¹ In circumstances where an offender is particularly dangerous, sentencing judges assess the risk that the offender would pose to the community if he or she were at liberty, and weigh this against any mitigating factors in determining the appropriate sentence.³²

8.22 Attempting to predict future conduct is a risky and difficult exercise, particularly when undertaken in relation to someone with a cognitive or mental health impairment. There is a risk that the “dangerousness” factor permits inaccurate but widely held stereotypes associating mental illness with violence³³ to affect the sentencing discretion, leading to longer sentences.³⁴ However, courts have held that although predictions of future dangerousness may be difficult and unreliable, they are sometimes necessary and correct.³⁵

8.23 While protection of the community from dangerous offenders is a legitimate consideration in sentencing, the principle of proportionality prevents the imposition of a penalty greater than the circumstances of the offence warrant.³⁶ In determining the weight to be given to protection of the community, the criminal standard of proof does not apply: therefore, the sentencing judge need not be satisfied beyond reasonable doubt that a prisoner will re-offend in the future, provided that a risk of re-offending has been established on the evidence.³⁷

8.24 Future dangerousness and the probability of re-offending are related to the mitigating factor concerning the offender’s prospects of rehabilitation. The potential for re-offending is likely to be reduced where the offender’s rehabilitation prospects are greater. It is certainly arguable that community protection is best achieved by a sentence likely to promote the offender’s effective rehabilitation and recovery.³⁸ This issue is discussed in more detail later in this chapter in the context of sentencing options.

Aggravating and mitigating factors

8.25 In passing any sentence, the court must have regard to relevant aggravating and mitigating factors, as well as “any other objective or subjective factor that affects the relative seriousness of the offence”.³⁹ The CSPA contains non-exhaustive lists of aggravating and mitigating factors, which are supplemented by the common law.⁴⁰ While only one of the legislated factors mentions “disability”, several others are of practical relevance when sentencing offenders with cognitive and mental impairments. These include:

• the offender’s prospects of rehabilitation;
• the existence of a prior criminal record;
• whether the offence was committed while the offender was on conditional liberty; and
• the occupation of the victim.

8.26 A factor that may mitigate the severity of a sentence is where the offender was not fully aware of the consequences of his or her actions because of his or her age or “any disability”.⁴¹ Courts have interpreted this to include “significant mental disabilities of any kind, whether or not they might be regarded in a medical sense as mental illnesses”.⁴²

8.27 Courts tend not to regard substance use disorders as equivalent to other cognitive and mental health impairments in terms of sentence mitigation because of “the original element of choice” involved in commencing, and then continuing, to use the substance.⁴³

8.28 The presence of a mental or cognitive impairment will not automatically attract mitigation, unless it can be shown that the nature and extent of the impairment affected the offender sufficiently at the time of the offence to justify the imposition of a less severe sentence than would otherwise apply.⁴⁴ Even where a causal relationship between the commission of an offence and a mental disorder can be established, a reduction in sentence will not automatically occur, since the various factors that need to be considered may point in opposite directions. For example, the presence of a cognitive or mental impairment may result in deterrence of others being less significant, but may heighten the importance of protecting the community.⁴⁵

8.29 Courts have also referred to the danger of “double counting” an offender’s liability as a mitigating factor in sentencing in circumstances where the impairment was considered in relation to establishing the offender’s liability for the offence. This could occur, for instance, in cases of substantial impairment where an offender’s mental condition is significant enough to reduce a charge of murder to manslaughter by successfully making out the defence of substantial impairment. In such circumstances, courts have stated that the impairment should only be considered a relevant mitigating factor in sentencing if it is “to a significant degree more than would have been necessary to give rise to the diminution in culpability associated with the lesser charge”.⁴⁶

Prospects of rehabilitation

8.30 The CSPA recognises prospects of rehabilitation, whether by reason of the offender’s age “or otherwise”, as both a purpose of sentencing and a mitigating factor.⁴⁷ The sentencing court may have regard to an offender’s mental condition and the effect it is likely to have on his or her prospects of rehabilitation irrespective of whether the mental condition was causally related to the commission of the offence.⁴⁸

8.31 In terms of mitigation, this could mean that a sentence other than imprisonment may be imposed, or, if a custodial sentence is deemed necessary, a shorter term than that which would ordinarily apply may be considered appropriate.⁴⁹ There is no general rule that the court should endeavour to select a penalty that is likely to promote the offender’s rehabilitation or recovery.⁵⁰ Nor can the fact that an offender has reasonable prospects for rehabilitation be allowed to overshadow the objective seriousness of the offence committed.⁵¹

8.32 However, this factor is problematic in relation to offenders with cognitive or mental health impairments, since non-custodial options may not be appropriate,⁵² and their prospects of rehabilitation may depend on receiving treatment services that are not available.

Prior criminal record

8.33 An offender’s prior criminal record, or lack thereof, may be relevant as either an aggravating or mitigating factor respectively.⁵³ Its relevance is to show whether the “instant offence is an uncharacteristic aberration or whether the offender has manifested … a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.⁵⁴ The offender’s prior criminal history cannot justify a sentence greater than what is proportionate to the offence, but may militate against leniency which might otherwise be afforded.⁵⁵ This use of the prior criminal record can be problematic for offenders with cognitive and mental health impairments, because it might effectively disregard the relationship, where one exists, between the impairment and the prior offending.

8.34 The relationship between an offender’s cognitive or mental health impairment and his or her prior criminal record may be particularly relevant for young adult offenders who have had contact with the criminal justice system prior to adulthood. Adult onset mental illnesses are sometimes preceded by childhood behavioural disorders that may contribute to juvenile offending. For a young adult offender who has recently been diagnosed with mental illness, a prior criminal history would weigh against mitigation for the illness.⁵⁶ Yet in some cases it might be that, rather than representing “a continuing attitude of disobedience to the law”, the offender’s prior criminal behaviour reflects, at least in part, early manifestations of their illness.⁵⁷ Similarly, adolescent behavioural difficulties, lack of life skills and adequate support, often contribute to offending by young people with intellectual disabilities.⁵⁸

8.35 Similar issues arise in relation to the legislated mitigating factor of prior good character,⁵⁹ and the aggravating factor whereby an offence is committed while the offender is on conditional liberty in respect of an earlier offence.⁶⁰

Victims

8.36 The CSPA provides that it is an aggravating factor if “the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work”.⁶¹ The provision is intended to protect people who perform important services to the community from offences that occur during, and as a result of, that service. It may, however, have a disproportionate impact on offenders with cognitive and mental health impairments because of a combination of two factors.

8.37 First, it is likely that a person with a cognitive or mental health impairment would come into contact with health workers, community workers and emergency services more frequently than people without such an impairment. Contact may occur on a regular basis (such as daily care by a disability worker), and/or at times when the person’s behaviour is most affected by the impairment (such as when a person with a mental illness is behaving in a way that poses a risk of harm and police or ambulance officers are called to transport the person to hospital). Secondly, aggressive behaviour by the person might be a manifestation of the impairment, rather than a malicious act targeted at a particular victim. In cases where the cognitive or mental health impairment is the reason underlying both contact with the community service worker and the offending behaviour, it may be unjust to regard the victim’s occupation as an aggravating factor.

8.38 The CSPA also provides that it is an aggravating factor if “the offence was committed in the home of the victim or any other person”, including the home of the accused.⁶² Again, this provision may be particularly problematic for offenders with cognitive and mental health impairments in respect of offences committed against carers or family members.

Legislative reference to cognitive or mental impairment

8.39 While the CSPA refers to an offender’s disability as a mitigating factor in sentencing, it makes no specific reference to cognitive or mental health impairments as a factor relevant to sentencing. This is perhaps surprising given the longstanding and well-known high incidence of such impairments among the offender population.⁶³ Although the common law acknowledges the need to modify sentencing principles to accommodate offenders with cognitive or mental impairments, a legislative statement would carry more weight.

8.40 For example, the mitigating factors in s 21A of the CSPA could specifically refer to “cognitive and mental health impairment” in addition to “disability”.⁶⁴ This would codify the common law position, and act as a direct legislative prompt for the court to consider the special issues that may arise when sentencing offenders with mental illness or cognitive impairments. It would also clarify the fact that a cognitive or mental health impairment qualifies as a “special circumstance” for the purpose of setting a shorter non-parole period, since the CSPA provides that a court may adjust the standard non-parole period only for the reasons specified in s 21A.⁶⁵

8.41 In addition, the legislative statement could go further, and reflect the principles articulated in Hemsley,⁶⁶ by directing the court to consider the specific circumstances of an offender’s impairment when applying the common law sentencing principles, and the effect that such an impairment may have in relation to some of the aggravating and mitigating factors listed in the CSPA. For example, the CSPA could provide that when sentencing an offender with a cognitive and mental health impairment, the court must have regard to the effects of that impairment both in terms of its relevance to the objective seriousness of the crime and the offender’s moral culpability, and the subjective effects of the impairment on the offender.

8.42 In particular, the court should recognise:

• the possibility that a custodial sentence might weigh more heavily on offenders with cognitive or mental health impairments than on other offenders in determining the appropriate sentencing option;
• the impact that the availability (or lack thereof) of appropriate treatment and support services within prisons for offenders who are mentally ill or have other mental or cognitive impairments is likely to have on the offender’s rehabilitation prospects, or on his or her ability to cope with the sentence
• that the application of the aggravating and mitigating factors in the CSPA could operate unfairly unless adequate consideration is taken of the impact that a cognitive or mental health impairment may have on the offender’s behaviour and on his or her prior contact with the criminal justice system; and
• the need to consider the risk posed to the public if the offender is not detained, and the fact that risk will not be present in every case.

Issue 6.104

Should s 21A of the CSPA be amended to include “cognitive and mental health impairment” as a factor in sentencing?

Further, should the CSPA contain a more general statement directing the court’s attention to the special considerations that arise when sentencing an offender with cognitive or mental impairments? If so, how should that statement be framed?

Should the purposes of sentencing as set out in s 3(1)(a) of the CSPA be modified in terms of their relevance to offenders with cognitive and mental health impairments? If so, how?

8.44 Consideration by the court of the sentencing purposes and principles feeds directly into decisions concerning whether or not a penalty is appropriate, and if so, what its nature and severity should be. The CSPA provides the Local, District or Supreme courts with the following options if a person pleads guilty, or is otherwise convicted of an offence (listed in increasing order of severity):

• order that the charge be dismissed and discharge the offender without recording a conviction, unconditionally, or on condition of good behaviour, or participation in an “intervention program”;⁶⁷
• record a conviction and impose no other penalty;⁶⁸
• convict the offender and impose a fine;⁶⁹
• convict the offender and impose a good behaviour bond for up to five years, which may include a condition that the offender undergo counselling;⁷⁰
• convict the offender and impose a community service order;⁷¹ or
• convict the offender and impose a sentence of imprisonment, to be served by way of periodic or home detention, or full-time imprisonment.⁷²

• to make a place restriction order or a non-association order, in addition to another sentencing option;⁷³ and
• to defer sentencing for up to two years for the offender’s rehabilitation, participation in an “intervention program” or any other purpose the court considers appropriate.⁷⁴

Sentences of full-time detention

8.47 Where the court determines that some form of penalty is warranted, it must decide between custodial and non-custodial options. In some circumstances, that choice may be limited by statute, since imprisonment is not available as a choice for all offences. Where a custodial sentence is available, the court should only sentence an offender to prison after having considered all other alternatives.⁷⁵ If the court determines that no penalty other than imprisonment is appropriate, it must determine what the length of that sentence should be, and the availability and appropriateness of alternatives to full-time custody.⁷⁶

8.48 It is arguable that the requirement that custodial sentences be imposed only as a “last resort” is even more important in relation to offenders with cognitive and mental health impairments, given the fact that effects of prison are likely to be more detrimental for them than for other offenders.⁷⁷ However, since statistics show a high proportion of prison inmates with mental or cognitive impairments, it would seem that prison is the only alternative for many such offenders.

8.49 Certain measures are currently in place which may lessen the impact of a custodial sentence on these offenders. For example, specialist units within some prisons providing for the requirements of offenders with intellectual disabilities, and Justice Health provides health care services in a number of areas, including mental health. Offenders with a mental illness may also be transferred from prison to a forensic hospital for treatment,⁷⁸ or may be the subject of a Community Treatment Order (“CTO”) while in prison.⁷⁹

8.50 Much has been written about the need to provide and coordinate treatment and other support services for prisoners with cognitive and mental impairments.⁸⁰ This is not only a matter of individual human rights,⁸¹ but also fulfils a public interest in making sure offenders are sufficiently rehabilitated to enable them to safely reintegrate into the community. While it is not within the scope of this review to evaluate services provided to offenders within prison, in this section we look at ways in which the sentencing court can currently address the special requirements of offenders with cognitive and mental health impairments serving sentences of full-time imprisonment, and any additional mechanisms that may be necessary.

Non-parole period: “special circumstance”

8.51 When sentencing an offender to imprisonment for a term exceeding six months,⁸² a court is first required to set a non-parole period.⁸³ This refers to the minimum period for which the offender must be kept in detention in relation to the offence. The court must then set the balance of the term of the sentence. Generally, that balance must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for increasing it, in which case the court must provide reasons for that decision.⁸⁴

8.52 The courts have found that an offender’s cognitive or mental condition can amount to a “special circumstance” justifying a shift in the balance between the non-parole period and the total sentence.⁸⁵ As a result, an offender with a cognitive or mental health impairment may receive a shorter non-parole period due to special circumstances occasioned by the impairment. However, not every cognitive or mental health impairment will amount to a “special circumstance”. Generally, courts have found special circumstances to exist where offenders would be likely to benefit from extended supervision in the community, and require a longer period on parole in order to reintegrate more successfully.⁸⁶ Similarly, a shorter non-parole period may be warranted where an offender would benefit from rehabilitation or treatment services in the community.⁸⁷

8.53 Where a court has found that special circumstances exist, the non-parole period must not be reduced below that which is commensurate with the gravity of the crime.⁸⁸ Courts have also cautioned against “double counting” an impairment as a special circumstance justifying an adjustment to the non-parole period where it has been considered in determining the overall sentence.⁸⁹ However, there will be cases where a mental impairment serves both as a mitigating factor in determining the total sentence, and a special circumstance in relation to the non-parole period.⁹⁰

8.54 As noted earlier, the courts are limited in their ability to adjust the standard non-parole period to the factors set out in s 21A of the CSPA.⁹¹ We hold the preliminary view that amending s 21A to include a specific reference to cognitive and mental health impairments, to supplement the more general reference to “disability”, would clarify the court’s power to adjust the non-parole period where appropriate for such offenders.

Issues for discussion

8.55 Apart from adjusting the non-parole period in the manner discussed above, courts in NSW may be hampered in their attempts to give full effect to the sentencing principles through a lack of flexibility in sentencing options involving the detention of people with cognitive or mental health impairments. We seek views on whether the following measures would assist the court to meet the interests of justice more effectively by improving the custodial experience for offenders with mental impairments.

Mandatory pre-sentence reports

8.56 In Consultation Paper 5, Chapter 5, we raise the issue of whether the court should have a general power to order an assessment report at any time during proceedings, including sentencing, for the purpose of determining a defendant’s cognitive or mental state.⁹² Specific issues arise, however, within the context of sentencing. Currently, the CSPA requires the court to consider the contents of a pre-sentence report before imposing a sentence of periodic or home detention, or a community service order.⁹³ The matters required to be addressed in those reports are prescribed by legislation, and go towards assessing an offender’s suitability for various custodial and non-custodial options.

8.57 Although courts can (and often do) request a pre-sentence report to be prepared by the Probation and Parole Service when considering imposing a sentence of full-time imprisonment on an offender, there is no legislative requirement for them to do so.⁹⁴ Arming courts with as much relevant information as possible before sentencing decisions are made is particularly important with regard to offenders with cognitive and mental health impairments. A pre-sentence report may contain information such as an assessment of the nature and severity of the offender’s cognitive or mental state, and the likely impact of incarceration on the offender, the suitability of the offender for various intervention or treatment programs, and the availability of those programs within the criminal justice system. This information would be relevant to the type, length and structure of any custodial sentence.

8.58 This Commission previously examined the issue of whether pre-sentence reports should be mandatory for offenders with an intellectual disability, concluding that they should only be mandatory where an offender was unrepresented and a custodial sentence was a real possibility.⁹⁵ The reason for this view was the likelihood of a potentially significant increase in the workload of the Probation and Parole Service, the need to avoid delays in sentencing, and the danger that an offender’s disability could be wrongly identified or misinterpreted unless officers of the Probation and Parole Service were appropriately trained.⁹⁶ The Australian Law Reform Commission also considered the issue recently in relation to the sentencing of federal offenders, reaching the view that while mandatory pre-sentence reports for all offenders with cognitive and mental impairments are an attractive option, resource implications would require that such reports be mandatory only where there is a “reasonable prospect” of imprisonment.⁹⁷

8.59 We seek views on the likely benefits and disadvantages of requiring courts to obtain a pre-sentence report when it is likely that an offender with cognitive or mental health impairments will receive a sentence of imprisonment. In particular, we seek views on how the difficulties raised in previous inquiries may be overcome.

Issue 6.107

Should the CSPA be amended to make it mandatory for a court to order a pre-sentence report when considering sentencing offenders with cognitive or mental health impairments to prison?

If so:

(a) what should the report contain?

(b) should the contents be prescribed in the relevant legislation?

8.60 The NSW Department of Corrective Services is responsible for 35 correctional facilities housing 9634 inmates.⁹⁸ With figures indicating that approximately 38% of sentenced inmates have some form of mental illness or impairment, and 20% have an intellectual disability,⁹⁹ the ability to house these inmates elsewhere, such as a secure treatment facility, would not only be of benefit to the offender and ultimately the community, but would also lessen the burden on the prison system enormously.

8.61 However, courts in NSW currently have no power to order that a sentence of imprisonment be served anywhere other than a prison.¹⁰⁰ An inmate in a correctional centre who is found to be “mentally ill”¹⁰¹ may be transferred to a mental health facility if ordered by the Director General of the Department of Corrective Services,¹⁰² but a court cannot sentence an offender to such a facility directly. This contrasts with other jurisdictions which empower courts to order that a sentence be served in a mental health facility, or a specialist unit for intellectual disability, rather than a prison.

8.62 For example, in Victoria, the Northern Territory, New Zealand and the Commonwealth, an offender may be sentenced to detention in a mental health facility, for a period not greater than the term of imprisonment which would otherwise have been imposed.¹⁰³ In Tasmania¹⁰⁴ and the United Kingdom,¹⁰⁵ such orders apply for an indeterminate period. Furthermore, in Victoria and New Zealand, courts may order detention in specialist facilities for offenders with intellectual disabilities.¹⁰⁶

8.63 In Victoria and the Northern Territory, the court is required to set a non-parole period,¹⁰⁷ while under the Commonwealth provisions, a court may set a “lesser period of detention” during which the person is not eligible for release.¹⁰⁸ At the end of that period, the Attorney General must release the person unless a psychiatric report recommends against it or the person is subject to another federal sentence.¹⁰⁹ In Victoria and New Zealand, if the person recovers during the term of the order, he or she is transferred to prison to serve the remainder as a sentence of imprisonment, unless released sooner on parole.¹¹⁰ Commonwealth and Northern Territory legislation provides for the offender to be returned to court for appropriate orders to be made.¹¹¹

8.64 If such an option were to be adopted in NSW, the pre-sentence report¹¹² could inform the court of the nature and severity of the offender’s impairment, and the type and availability of appropriate services. Despite the benefits of detention in specialist facilities rather than in prison, there are two major drawbacks associated with this proposal, both of which are beyond the control of the sentencing court. The first is the question of resources: the lack of suitable, available residential facilities for people with cognitive and mental health impairments is well-documented, and is arguably one of the reasons for their high prevalence within the prison system. This problem would be particularly acute for offenders with a high security classification. The second difficulty is that while the sentencing court can order that an offender be detained in a specialist facility, it could not compel those facilities to house the offender. The success of this option would depend to a large degree on cooperation of, and coordination between, DCS, Justice Health, the MHRT and private sector service providers.

8.65 These problems are clearly not insurmountable, as this option already exists in other jurisdictions. Resolving them, however, is beyond the scope of this review. Nevertheless, the Commission considers that empowering courts to order detention in facilities other than prison would be an important step forward in NSW.

Issue 6.108

Should the CSPA be amended to give courts the power to order that offenders with cognitive or mental health impairments be detained in facilities other than prison?

If so, how should such a power be framed?

8.66 Judges and magistrates generally possess information relevant to an offender’s impairment that would be beneficial to pass on to DCS, Justice Health and the MHRT with regard to the type of treatment or other support services that the person may require during the course of their sentence. Sentencing courts currently attempt to communicate this information by making recommendations in sentencing remarks about interventions that may assist the offender, or directing that the warrant of commitment be annotated, for example, with a recommendation that the offender be assessed by a psychiatrist as soon as practicable after reception into a correctional centre.¹¹³

8.67 Another option would be to expand on a procedure that has developed in the Local Court, whereby psychiatric and psychological reports tendered in court are sent to the Justice Health officer at the correctional centre to which the offender is committed.¹¹⁴ This could be implemented as an addition or an alternative to any sentencing remarks or annotations on the subject. If such a proposal were to be adopted, the Commission is of the view that it should apply to all courts. Consideration should also be given to whether the reports should be sent by the sentencing court to other relevant agencies, such as Justice Health or the Disability Services Unit of the DCS, subject to appropriate privacy protection.

8.68 While it is open to the court to engage in these options currently, there is evidence that information concerning an offender’s impairment-related needs is not routinely transmitted from the courts to the correctional facilities,¹¹⁵ resulting in duplication of resources. Providing for notification in legislation might create an impetus for the establishment of formal, permanent channels of communication between courts and the relevant agencies. However, as noted at paragraph 8.64, it would not be within the power of the sentencing court to order agencies to provide particular treatment services to an offender.

Issue 6.109

Should the CSPA provide a mechanism for courts to notify other agencies and tribunals of the needs of offenders with cognitive and mental health impairments who are sentenced to imprisonment?

If so, should the legislation state that the sentencing court:

(a) may make recommendations on the warrant of commitment concerning the need for psychiatric evaluation, or other assessment of an offender’s mental condition as soon as practicable after reception into a correctional centre; and/or

(b) may forward copies of any reports concerning an offender’s impairment-related needs to the correctional centre, Justice Health, the MHRT, or the Disability Services Unit within DCS, if appropriate?

8.69 When courts impose a community-based sentencing option, such as a community service order or a good behaviour bond, they may attach conditions to the sentence,¹¹⁶ including that the offender undertake some form of rehabilitation or treatment. However, courts in NSW do not have the power to attach such conditions to a sentence of imprisonment. One of the primary reasons for this is the view taken by the courts that the executive government, and not the sentencing court, has the sole responsibility for decisions about the way in which resources within prisons are allocated and prioritised.¹¹⁷ As such, consideration of this option is beyond the scope of this review.

8.70 Despite these limitations, there is one mechanism by which the sentencing court could arrange for mentally ill offenders to receive treatment in prison. Since the MFPA came into effect in March 2009, the MHRT may make a CTO in respect of a mentally ill person who is an inmate in a correctional facility, including a remand prisoner.¹¹⁸ If the MHRT orders that a CTO be made in relation to an inmate, it must review that person’s case every three months.¹¹⁹

8.71 While this provision is a step forward for prison inmates with a mental illness, it will only be effective once the DCS or the MHRT have become aware of the illness. In some cases, the sentencing court may be aware of the offender’s illness before any of those agencies. In these situations, it may be expedient for the court, when considering imposing a sentence of imprisonment, to request the MHRT to assess the offender with a view to making a CTO pursuant to s 67(1)(d) of the MFPA.

8.72 The attraction of this option is that it taps into an existing legislative and administrative framework. The downside is that it would apply only to offenders with a mental illness as defined in the Mental Health Act 2007 (NSW). We seek views as to whether similar options can or should be available to offenders with other mental conditions or cognitive impairments.

Issue 6.110

Should the CSPA be amended to empower the court, when considering imposing a sentence of imprisonment on an offender with a mental illness, to request that the MHRT assess the offender with a view to making a community treatment order pursuant to s 67(1)(d) of the MFPA?

What similar powers, if any, should the court have with regard to offenders with other mental conditions or cognitive impairments?

8.73 Put simply, parole refers to the conditional release of an offender from detention after the minimum term, or non-parole period, has been served. The rationale for parole is that, while still part of the “continuum of punishment”,¹²⁰ it facilitates an offender’s rehabilitation and re-integration into society by enabling the remainder of the sentence to be served under supervision in the community.¹²¹ Parole is relevant to all custodial sentences, whether served by way of full-time, periodic or home detention.¹²²

8.74 An order for parole may be made either by the court at the time of sentencing, or by the Parole Authority at a later date, depending on the duration of the non-parole period. If a court imposes a sentence of imprisonment for a term of three years or less, and a non-parole period has been set,¹²³ the court must order that the offender be released on parole at the end of the non-parole period.¹²⁴ For sentences longer than three years, the offender may be released at the end of the non-parole period if his or her application to the Parole Authority is successful.¹²⁵

Relevant factors

8.75 The Parole Authority must not make an order for parole unless satisfied, on the balance of probabilities, that “the release of the offender is appropriate in the public interest”.¹²⁶ In deciding whether to grant parole, the Parole Authority must have regard to a number of factors, including:

• the need to protect the community, and to maintain public confidence in the administration of justice;
• the nature and circumstances of the offence to which the sentence relates;
• any relevant comments made by the sentencing court;
• the offender’s criminal history;
• the likelihood of the offender being able to adapt to normal life;
• the likely impact on the victim or his or her family;
• any report that has been prepared in relation to the offender; and
• any other matter.¹²⁷

8.77 A parole order may be made subject to standard conditions, or any additional conditions imposed by the court or the Parole Authority.¹³⁰ Conditions may involve supervision, place restriction, non-association, and “conditions relating to residence or treatment”.¹³¹

Issues for offenders with cognitive and mental health impairments

8.78 The broad terms of the relevant legislative instruments governing parole provide scope for the special requirements of offenders with cognitive and mental health impairments. For example, the prescribed list of matters that must be included in the report prepared by the Probation and Parole Service could encompass the special requirements of offender’s with cognitive and mental health impairments. Similarly, the Parole Authority can consider information about an offender’s cognitive or mental health impairment and associated needs, and can order a psychiatric, psychological or medical examination of an offender.¹³² . However, there is no express reference in the legislation to this group of offenders.

8.79 The lack of a specific reference to offenders with cognitive and mental impairments may result in the Parole Authority having insufficient relevant information on which to make fully informed decisions. There is the danger that this could lead to a refusal to grant parole, or a decision to revoke it, based on misunderstanding concerning the type of supervision and support required to assist an offender to adapt to life in the community. Given that cognitive or mental impairment is accepted as a “special circumstance” justifying longer periods of parole during which an offender may receive supervision, treatment and other support services in the community,¹³³ it is particularly important that the requirements of such offenders are fully taken into account.

8.80 A legislative requirement that decision-makers consider issues arising due to cognitive and mental health impairments and parole would prompt focus on:

• the effect that the impairment may have on the offender’s ability to make a successful transition from prison to a community environment, and to comply with specific conditions of parole;¹³⁴
• the measures that may be necessary to overcome any difficulties occasioned by an offender’s impairment; and
• the type of conditions that might be attached to a parole order, including the availability and feasibility of appropriate treatment and support options to assist in the offender’s rehabilitation.¹³⁵

Should provisions regarding parole be amended to refer specifically to offenders with cognitive and mental health impairments? In particular, should the relevant legislation require specific consideration of an offender’s cognitive or mental impairment:

(a) by the Probation and Parole Service when preparing reports for the Parole Authority;

(b) by the court when setting parole conditions; or

(c) by the Parole Authority when determining whether to grant or revoke parole, and when determining parole conditions.

8.81 Depending on the objective seriousness of the crime and the circumstances the offender, a sentence other than full-time detention may be imposed. In cases where a sentence of imprisonment is still appropriate, the court may order that the sentence be served on an alternative basis to full-time detention.¹³⁶ In NSW, there are two alternatives to full-time incarceration: periodic and home detention.

8.82 In other cases, generally where the offence in question was of a less serious nature, the court may impose a community-based penalty rather than a sentence of imprisonment. For example, the court may make a Community Service Order (“CSO”), or issue a good behaviour bond. A bond may be imposed on an offender even where no conviction is recorded.

Periodic detention

8.83 Where an offender is sentenced to imprisonment for a period of not more than three years, the court may direct that the sentence be served by way of periodic detention.¹³⁷ Under such a sentence, an offender is released into the community on the condition that he or she attend and remain at a periodic detention centre for specified periods, for example, two days each week.¹³⁸

8.84 An order for periodic detention may only be made where:

• the offender is at least 18 years of age and is a “suitable” candidate for periodic detention;¹³⁹
• a sentence of periodic detention is appropriate in all of the circumstances;
• adequate accommodation is available at a periodic detention centre;
• suitable arrangements can be made to transport the offender to and from the centre; and
• the offender has agreed to comply with the obligations of the detention order.¹⁴⁰

8.86 An offender’s suitability for periodic detention is assessed by the Probation and Parole Service, whose report the court must consider when deciding whether or not to make a periodic detention order.¹⁴³ That report assesses an offender’s suitability with regard to a number of factors, including the degree of drug or alcohol dependence, the presence of a psychiatric or psychological condition, as well as the offender’s medical condition, criminal history and employment and other personal circumstances.¹⁴⁴ A court may make, or decline to make, a periodic detention order regardless of the contents of the assessment report.¹⁴⁵

8.87 Since periodic detention is available only in relation to sentences of three years or less, parole is by way of court order rather than an order of the Parole Authority.¹⁴⁶ The court may attach any conditions to the parole order, in addition to the standard orders of supervision by the Probation and Parole Service.¹⁴⁷ The Parole Authority may revoke a detainee’s periodic detention order in the case of a breach.¹⁴⁸ Where this occurs, a warrant may be issued for the offender to serve the remainder of the sentence in full-time detention,¹⁴⁹ or an order for the sentence to be completed by way of home detention may be given.¹⁵⁰

Home detention

8.88 Where an offender is sentenced to a term of imprisonment of 18 months or less, the court may order that the sentence be served by way of home detention.¹⁵¹ As the name suggests, the sentence may be served in the offender’s home or other approved residence.¹⁵² An offender serving a sentence of home detention is required to remain at the residence at all times unless engaged in approved activities or faced with immediate danger, such as a fire or medical emergency. The home detainee must also submit to electronic monitoring, not consume alcohol or use drugs, authorise his or her medical practitioner, therapist or counsellor to provide information to the supervisor, and engage in personal development activities, counselling or treatment as directed.¹⁵³

8.89 An offender is not eligible for home detention if he or she has committed certain serious offences,¹⁵⁴ or has a history of committing such offences, or been the subject of an apprehended violence order.¹⁵⁵ The court must be satisfied that the offender is a “suitable person”,¹⁵⁶ and that it is “appropriate in all the circumstances” that the sentence is served by way of home detention.¹⁵⁷ The offender must sign an undertaking to comply with his or her obligations under the order.¹⁵⁸

8.90 As with periodic detention, the court is required to consider an assessment report prepared by the Probation and Parole Service when deciding whether or not an offender is suitable for a home detention order.¹⁵⁹ The report must take into account the offender’s criminal history, any dependency on illegal drugs, and the likelihood of the offender committing a domestic violence offence. The report must also address whether the offender’s circumstances may inhibit the effective monitoring of the order, the impact of the order on the safety of any person living in the vicinity of the offender, and whether the person with whom the offender resides understands the conditions of the order and is prepared to comply with them to the relevant extent.¹⁶⁰ The consent of any person with whom the offender would reside or continue a relationship must be obtained in writing,¹⁶¹ and the impact on any child with whom the offender would reside must be particularly considered.¹⁶²

8.91 A court may decline to make a home detention order for any reason, despite a favourable assessment report.¹⁶³ However, unlike periodic detention orders, a court may only decide to make a home detention order if the assessment report declares the offender to be a suitable person.¹⁶⁴

8.92 The Parole Authority may conduct inquiries into breaches of a home detention order regardless of whether the order has expired.¹⁶⁵ It may also revoke a home detention order if the offender has failed to comply with his or her obligations, or where the offender fails to appear before the Authority when called upon to do so.¹⁶⁶

Community service orders

8.93 Section 8 of the CSPA states that court may make a CSO directing an offender to perform a specified number of hours of community service work each week under the supervision of an officer of the Probation and Parole Service, instead of imposing a sentence of imprisonment.¹⁶⁷ Accordingly, a CSO is a non-custodial sentencing option, and is available whether or not a sentence of imprisonment would otherwise have been applicable.¹⁶⁸ Community service work is defined legislatively to mean “any service or activity approved by the Minister, and includes participation in personal development, educational or other programs”.¹⁶⁹ Typically, community service work may include cleaning or gardening.¹⁷⁰

8.94 A CSO may be made only if the court is satisfied that the offender is a “suitable person” for community service work, that it is “appropriate in all the circumstances”, and that arrangements exist in the offender’s area of residence and work can be provided in accordance with those arrangements.¹⁷¹ The court may refer an offender to the Probation and Parole Service for assessment of suitability for community service work.¹⁷² The court must have regard to the report of that assessment in deciding whether or not to make a CSO, and may only do so if the offender has been assessed as suitable.¹⁷³

8.95 A significant number standard conditions are attached to a CSO, including requirements that the offender:

• report to a local DCS office as required;
• be free from the influence of drugs or alcohol;
• participate in activities connected with the administration of the order, and perform work as directed by the supervisor;
• submit to a medical examination if required;
• receive home visits from the supervisor in connection with the order;
• comply with standards of dress, cleanliness and conduct; and
• comply with any reasonable direction given by the supervisor, or immediately advise the supervisor of any reasons for the inability to comply.¹⁷⁴

8.97 A supervisor may apply to the court to revoke a CSO where the offender has failed to comply with his or her obligations under the order without reasonable excuse, or where the interests of justice would be best served by the revocation of a CSO.¹⁷⁷ If the court agrees to revoke the CSO, it may deal with the offender in any way it could have done had the order not been made,¹⁷⁸ taking into account any time spent in custody for the same offence,¹⁷⁹ and any acts of compliance with the CSO prior to the breach.¹⁸⁰

Good behaviour bond

8.98 A court may order an offender to agree to an undertaking, or bond, that he or she will be of good behaviour. A good behaviour bond of up to five years may be imposed instead of a sentence of imprisonment.¹⁸¹ Where a sentence of imprisonment is imposed, but for a term of less than two years, the court may order that it be suspended in favour of a good behaviour bond.¹⁸² The court also has the option of discharging a person without conviction on condition that he or she enters into a good behaviour bond.¹⁸³ A court may not order both a good behaviour bond and a CSO in relation to the same offence.¹⁸⁴

8.99 The court has a broad discretion as to the conditions that may be attached to a bond, including a requirement that an offender participate in an intervention program.¹⁸⁵ Prior to including such a condition in an order, the court may refer the offender for assessment of his or her suitability to participate in an intervention program.¹⁸⁶ An offender has the right to decide not to participate in an intervention program.¹⁸⁷ Should this occur, the court may require the offender to appear before it and may vary the conditions attached to the bond, or order its revocation.¹⁸⁸ A failure to appear may result in proceedings for breach of the bond.¹⁸⁹

8.100 The conditions of a bond must relate to the punishment of the particular crime committed, must be expressed with sufficient certainty to enable compliance and must not be unduly harsh, unreasonable or onerous.¹⁹⁰ The conditions cannot require the offender to perform community service work or to make a payment of any kind.¹⁹¹

8.101 If the offender fails to enter into a good behaviour bond, the court may sentence, or convict and sentence, the offender as if the bond had not been imposed.¹⁹² If the court is satisfied that an offender has breached a good behaviour bond, it may take no action, vary or add to the conditions of the bond, or may revoke the bond.¹⁹³

Issues for offenders with cognitive and mental health impairments

8.102 Semi-custodial and community-based sentencing options present significant benefits for some offenders with cognitive and mental health impairments. The primary advantage of these options is that they do not expose vulnerable offenders to the risks associated with full-time incarceration. In Report 80, we noted that sentencing options other than full-time detention enable offenders to “model themselves on typical members of the community rather than on prisoners; and may be a more meaningful punishment for a person with an intellectual disability than other options”.¹⁹⁴ Offenders would also be able to maintain their existing living and working arrangements, which is particularly important for offenders with certain mental conditions requiring routine and structure. Further, an offender with cognitive or mental health impairments may benefit from gaining living skills and other support from participation in community service work or intervention programs under a CSO or a good behaviour bond.

8.103 However, a number of drawbacks exist. In relation to periodic detention, its popularity as a sentencing option has declined over recent years, largely due to the lack of available places at detention centres, and its questionable impact on deterrence and rehabilitation.¹⁹⁵ Moreover, the blanket exclusion of offenders who have ever served a sentence of imprisonment effectively discriminates against offenders with cognitive and mental health impairments, who are more likely than other offenders to receive prison sentences for minor offences.¹⁹⁶

8.104 The criterion of “suitability” common to periodic and home detention, as well as CSOs, is problematic in terms of offenders with cognitive and mental health impairments. While such offenders are not automatically excluded,¹⁹⁷ there is perhaps an increased likelihood of them being considered unsuitable because of the greater chance of non-compliance with conditions attached to each type of order.¹⁹⁸ Indeed, the presence of a “major psychiatric or psychological condition” is an indicator of unsuitability for periodic detention.¹⁹⁹ In relation to home detention, an offender’s living arrangements and the possible impact on carers and family members may make him or her unsuitable for an order.²⁰⁰

8.105 Even if an offender is considered to be suitable, his or her ability to comprehend or comply with the conditions of a semi or non-custodial order may also be compromised by a cognitive or mental impairment. For example, some offenders may have difficulty organising themselves to keep appointments with, or accept visits from, Probation and Parole Service officers, or may not be able to make suitable transport arrangements to and from periodic detention centres. They may be denied eligibility for CSOs due to a lack of appropriate work programs for people with mental illness or cognitive disabilities. As noted in DP 35, the factors which lessen the chances of offenders with cognitive and mental health impairments being eligible for bail and parole, “such as poverty, lack of employment options or family and community support, and unstable living conditions, will also decrease the likelihood of receiving such sentences, with a corresponding increase in custodial sentences”.²⁰¹

8.106 It is beyond the scope or capacity of this review to address the underlying problems associated with the ability of offenders with cognitive and mental impairments to access semi and non-custodial sentencing options. Nor do we suggest that these options would be appropriate for every such offender in every circumstance. However, we seek views as to whether there should be some legislative guidance concerning how the suitability requirements should be adapted for offenders with cognitive and mental health impairments who would be appropriate candidates for semi and non-custodial orders, and the types of conditions attaching to such orders.

Issue 6.113

Should the relevant legislation dealing with periodic detention, home detention, community service orders and good behaviour bonds be amended to increase the relevance and appropriateness of these sentencing options for offenders with cognitive or mental impairments?

In particular, how could:

(a) the eligibility and suitability requirements applicable to each type of order; and

(b) the conditions that may attach to each semi or non-custodial option

be adapted to meet the requirements of offenders with cognitive or mental impairments.

8.107 As noted earlier, s 11 of the CSPA enables the court to defer sentencing by adjourning proceedings for up to 12 months from the date of the finding of guilt, and grant bail for the purpose of:

• assessing the offender’s capacity and prospects for rehabilitation or participation in an intervention program; or
• allowing the offender to demonstrate that rehabilitation has taken place; or
• allowing the offender to participate in an intervention program; or
• for any other purpose the court considers appropriate.²⁰²

8.108 The court may make an order concerning an intervention program if satisfied that it would promote the offender’s rehabilitation, thereby reducing the likelihood of recidivism.²⁰⁴ The power to adjourn sentencing proceedings may be particularly useful in cases involving offenders with cognitive and mental health impairments. First, if the offender’s impairment was not recognised until it manifested in the offending conduct, it may take some time for a formal diagnosis to be made and the offender’s condition to stabilise. Until that occurs, it may be difficult for the court to properly assess sentencing factors such as the offender’s prospects of rehabilitation and future risk of re-offending. Deferral enables the court to wait for relevant information to become available. Secondly, if it is unclear whether or not a community-based sentence in conjunction with treatment and/or support services will be sufficient to prevent re-offending, deferral of sentencing allows for a “test run” of the arrangements before the court makes final sentencing orders.²⁰⁵ If the arrangements are shown to be sufficient, that could lead to a determination that a custodial sentence is not warranted, or that a partly custodial option such as home detention will suffice.

8.109 While s 11 refers to “rehabilitation”, there is no express mention of intervention or treatment programs for offenders with cognitive and mental health impairments. ²⁰⁶ We seek views as to whether that provision should be amended to direct the court’s attention to the power to defer sentencing in order to refer an offender with cognitive or mental health impairments to treatment or intervention programs in appropriate circumstances.

Issue 6.115

Should s 11 of the CSPA concerning deferral of sentencing be amended to refer expressly to rehabilitation or intervention programs for offenders with cognitive or mental health impairments?

2. Decisions concerning parole are instrumental in determining the length of a sentence and the conditions on which an offender is released. Depending on the length of the sentence, parole decisions are made by either the sentencing court or the Parole Authority: see [8.74]. Accordingly, we consider the terms of our inquiry to cover sentencing decisions made by the Parole Authority.

3. Crimes (Sentencing Proceedings) Act 1987 (NSW) “”CSPA”) s 3(1)(a).

4. Issues specifically relevant to children and young people with cognitive impairments and mental illness in the criminal justice system are discussed in Consultation Paper 9 (“CP 9”) due for release in early 2010.

5. Pre-sentence reports are discussed further at [8.56]-[8.59].

6. CSPA s 3A. The list appears to be exhaustive.

7. Veen v The Queen (No 2) (1988) 164 CLR 465; Bugmy v The Queen (1990) 169 CLR 525; and R v Whyte (2002) 55 NSWLR 252, [152].

8. See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; and R v Morgan (1993) 70 A Crim R 368, 371.

9. See Pearce v The Queen (1998) 194 CLR 610; Postiglione v The Queen (1997) 189 CLR 295; and R H McL v The Queen (2000) 74 ALJR 1319. See also CSPA pt 4, div 2.

10. [2004] NSWCCA 228. Courts in NSW commonly rely on the statement of principle in Hemsley: see Judicial Commission of NSW, Sentencing Bench Book [10-460] («http://www.judcom.nsw.gov.au» accessed 5 August 2009).

11. R v Hemsley [2004] NSWCCA 228, [33] - [36] (references omitted). Referred to with approval in R v Haines [2004] NSWCCA, [15]; R v Wicks [2005] NSWCCA 213, [24]-[26], [33]-[34]; R v Pham [2005] NSWCCA 314, [27]-[35]; R v Hughes [2005] NSWCCA 117, [24]-[29]; Withers v R [2009] NSWCCA 133, [31].

12. R v Henry (1999) 46 NSWLR 346, 354; R v Israil [2002] NSWCCA 255, [23]; R v Way (2004) 60 NSWLR 168, 187. See also R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [26].

13. Wilmot v The Queen [2007] NSWCCA 278, [26]-[33].

14. R v Letteri (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Sheller and Badgery-Parker JJA, 18 March 1993).

15. R v Engert (1995) 84 A Crim R 67, 71, 72; R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [13], [23]-[26].

16. R v Wright (1997) 93 A Crim R 48, 50-51. See also R v Engert (1995) 84 A Crim R 67, 72; R v Champion (1992) 64 A Crim R 245, 254-255; R v Henry (1999) 46 NSWLR 346, [254]. See also R v Zeilaa [2009] NSWSC 532, [15].

17. R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [32], see also [15]-[22]; see also R v Letteri (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Sheller and Badgery-Parker JJA, 18 March 1993), approved in R v Engert (1995) 84 A Crim R 67; R v Yaldiz [1998] 2 VR 376, 381, 383; cf R v Tsiaras [1996] 1 VR 398, 400.

18. R v Wright (1997) 93 A Crim R 48, 51; see also R v Wiskich [2000] SASC 64, [22]-[47], [62]; R v Leach (2003) 85 SASR 139, 141-142.

19. See, eg, Adanguidi v The Queen [2006] NSWCCA 404, and R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [32], [55]-[93], where schizophrenia manifested between the offence and the sentencing hearing. See also R v Engert (1995) 84 A Crim R 67, 71-72; R v Yaldiz [1998] 2 VR 376, 381, 383.

20. R v Wright (1997) 93 A Crim R 48, 52.

21. Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A(b)-(c); Veen v The Queen (No 2) (1988) 164 CLR 465, 476.

22. Matthews v The Queen (2004) 145 A Crim R 445, [23].

23. R v Verdins; R v Buckley; R v VO (2007) 16 VR 269, [32].

24. See, eg, R v Engert (1995) 84 A Crim R 67, 68; Veen v The Queen (No 2) (1988) 164 CLR 465, 476-477; R v Lawrence [2005] NSWCCA 91, [24]; R v Wright (1997) 93 A Crim R 48. See [8.21]-[8.24] regarding protection of the community.

25. See, eg, R v Vachalec [1981] NSWLR 351, 353; R v Peuna (Unreported, NSW Court of Criminal Appeal, Badgery Parker J, 15 July 1993); R v Engert (1995) 84 A Crim R 67, 71;Tsiaras v The Queen [1996] 1 VR 398, 400; R v Jarman [2001] NSWCCA 178, [19], [24]; R v Israil [2002] NSWCCA 255, [25]; R v Hemsley [2004] NSWCCA 228, [35]; R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [27]-[30], [32]; Withers v R [2009] NSWCCA 133, [34].

26. R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [27]-[30], [32]; Jiminez v The Queen [1999] NSWCCA 7, [23]-[25]; Du Randt v The Queen [2008] NSWCCA 121, [46]-[55].

27. See, eg, Tsiaras v The Queen [1996] 1 VR 398, 400; Mailes v The Queen (2001) 53 NSWLR 251, 267; Coroner’s Court of NSW, Magistrate D Pinch, Deputy State Coroner, Inquest into the death of Scott Ashley Simpson (17 July 2006), 8-13.

28. See, eg, R v Kilmartin (1989) 41 A Crim R 22 [Vic CCA]. It is common for offenders with cognitive impairments to be brutalised in prison, including gang rapes leading to the person contracting HIV: Intellectual Disability Rights Service, Consultation, 16 April 2007. See also NSWLRC, People with an Intellectual Disability and the Criminal Justice System: Court and Sentencing Issues (Discussion Paper 35, 1994), [11.12].

29. See, eg, Coroner’s Court of NSW, Magistrate D Pinch, Deputy State Coroner, Inquest into the death of Scott Ashley Simpson (17 July 2006), 15-16 and Recommendation 4.

30. See NSWLRC DP 35, [11.12].

31. CSPA s 3A(c). See also Veen v The Queen (No 2) (1988) 164 CLR 465; R v Engert (1995) 84 A Crim R 67; and R v Adams [2002] NSWCCA 448; R v Henry [2007] NSWCCA 90.

32. Veen v The Queen (No 2) (1988) 164 CLR 465, 472, 477.

33. A study of 46 legal professionals and 44 community members in Victoria found that both groups “greatly exaggerated the likelihood of a mentally ill person [with schizophrenia or depression] being violent, either to themselves or others”: J Minster and A Knowles, “Exclusion or concern: lawyers’ and community members’ perceptions of legal coercion, dangerousness and mental illness” (2006) 13(2) Psychiatry, Psychology and Law 166, 172. See also Queensland Health, Review of the Queensland Mental Health Act 2000: Promoting Balance in the Forensic Mental Health System (2006), 126-127; Mindframe Media and Mental Health Project, Reporting Suicide and Mental Illness (2006), 8 «http://www.mindframe-media.info» (accessed on 12 August 2009).

34. See, eg, R v Wright (1997) 93 A Crim R 48, 52-54. Contrast R v Welling [2005] NSWCCA 318, [32]-[38].

35. Fardon v Attorney General (Qld) (2004) 223 CLR 575, [12].

36. Veen v The Queen (No 2) (1988) 164 CLR 465, 472 and 477, 484-488, 495-496.

37. R v SLD (2003) 58 NSWLR 589, 595, 597; R v McNamara [2004] NSWCCA 42, [23]-[30]; R v Harrison (1997) 93 A Crim R 314, 319.

38. Hurd v The Queen (1988) 38 A Crim R 454, 461, 467-468; see also R v Lewfatt (1993) 66 A Crim R 451, 460 (substance abuse); but cf R v Wright (1997) 93 A Crim R 48, 52-54.

39. CSPA s 21A(1).

40. CSPA s 21 and s 21A. The court is not compelled to increase or reduce a sentence due to the presence of an aggravating or mitigating factor, and is not required to have regard to any factor if to do so would be contrary to other legislation or the common law: s 21A(4); R v Way (2004) 60 NSWLR 168, 183.

41. CSPA s 21A(3). Note that this mitigating factor is narrower in scope than the common law principle discussed at [8.12]-[8.13].

42. R v Arnold [2004] NSWCCA 294, [68]; see also R v Henry [2007] NSWCCA 90, [28]; R v Way (2004) 60 NSWLR 168, 187; Matthews v The Queen (2004) 145 A Crim R 445, 449; R v Arnold [2004] NSWCCA 294; R v George [2004] NSWCCA 247; R v Letteri (unreported, NSW Court of Criminal Appeal, 18 March 1993, Gleeson CJ, Sheller JA and Badgery-Parker J).

43. R v Henry (1999) 46 NSWLR 346. See also R v Wright (1997) 93 A Crim R 48; R v Matthews (2004) 145 A Crim R 445, 450 and R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [22]; R v Henry [2007] NSWCCA 90, [29]; Police v Mitchell [2008] NSWLC 5. Nevertheless, addiction can be a mitigating circumstance if there is evidence to “suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible”: R v Henry (1999) 46 NSWLR 346, [184]-[186], [273], [336]-[344]. Examples include cases where the addiction occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete.

44. R v Lawrence [2005] NSWCCA 91, [22]-[23]; R v Verdins; R v Buckley: R v VO (2007) 16 VR 269, [7]-[8]; Withers v R [2009] NSWCCA 133, [29].

45. See, eg, Veen v The Queen (No 2) (1988) 164 CLR 465; R v Engert (1995) 84 A Crim R 67; Car v R [2009] NSWCCA 138.

46. R v Paddock [2009] NSWSC 369, [31]-[33].

47. Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A(d), s 21A(3)(h).

48. R v Engert (1995) 84 A Crim R 166, 71.

49. Also, the non-parole period could be adjusted: see [8.51]-[8.54].

50. R v Wright (1997) 93 A Crim R 48, 52-54; see, eg, Du Randt v The Queen [2008] NSWCCA 121, [27]-[31], [42]. Contrast Hurd v The Queen (1988) 38 A Crim R 454, 461, 467-468; R v Lewfatt (1993) 66 A Crim R 451, 460.

51. R v Wright (1997) 93 A Crim R 48, 52-54.

52. See [8.102]-[8.106].

53. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d), 21A(2)(3)(e).

54. Veen v The Queen (No 2) (1988) 164 CLR 465, 477, 496.

55. Veen v The Queen (No 2) (1988) 164 CLR 465, 496, 477.

56. See, eg, R v Wright (1997) 93 A Crim R 48, 52.

57. Offending by young people whose prior criminal history is of substance abuse-related offending might be particularly likely to be related to mental health problems: see Senate Select Committee on Mental Health, A National Approach to Mental Health – From Crisis to Community, First Report (March 2006), Ch 14 especially [14.1]-[14.14], [14.32]-[14.42]. As to the shortage of adolescent mental health services, see NSW Legislative Council Select Committee on Mental Health, Mental Health Services in New South Wales, Report (2002), [13.8]-[13.38].

58. J Simpson, M Martin and J Green, The Framework Report: Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and Those at Risk of Offending (2001), 11-13.

59. CSPA s 21A(f).

60. CSPA s 21A(2)(j); R v Readman (1990) 47 A Crim R 181, 184; Re Attorney-General’s Application [No 1] under s 26 of the Criminal Procedure Act – R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327, [48]; Kokaua v The Queen [2008] NSWCCA 111; Police v Mitchell [2008] NSWLC 5.

61. CSPA s 21A(2)(a). See also CSPA s 21A(2)(l) (victim vulnerable because of occupation).

62. CSPA s 21A(2)(eb).

63. See Consultation Paper 5 (“CP 5”), ch 1.

64. CSPA s 21A(3).

65. CSPA s 54B(3).

66. R v Hemsley [2004] NSWCCA 228. See [8.11].

67. CSPA s 10.

68. CSPA s 10A. As to the jurisdictional limit of the Local Court in respect of penalties, see Criminal Procedure Act 1986 (NSW) s 267-268.

69. CSPA s 14, 15.

70. CSPA s 9, pt 8. A court may not, in relation to the same offence, order both a good behaviour bond and community service: s 13.

71. CSPA s 8, pt 7; Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”) pt 5. The maximum is 500 hours of community service: s 8(2) and Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 22.

72. CSPA s 5.

73. CSPA s 17A.

74. CSPA s 11. The offender must be eligible for bail: s 11(1). As to “intervention programs” see s 3; Criminal Procedure Act 1986 (NSW) s 3, 346-347; Criminal Procedure Regulation 2005 (NSW) reg 19, 19A, sch 4, sch 5. See also the general power to adjourn proceedings and remand the defendant in custody: Criminal Procedure Act 1986 (NSW) s 40.

75. CSPA s 5(1), pt 4; and see R v Zamagias [2002] NSWCCA 17, [23]-[31]; R v Cromarty (2004) 144 A Crim R 515, 531; R v Main [2003] NSWCCA 268, [34].

76. See [8.81]-[8.109] regarding alternatives to full-time custody.

77. See [8.19]-[8.20].

78. See Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFPA”), pt 5 div 3.

79. MHFPA s 67. See [8.70].

80. See, eg, NSW, Department of Health, Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (1983); NSW Law Reform Commission, People with an Intellectual Disability in the Criminal Justice System, Report 80 (1996); NSW Legislative Council, Select Committee on Mental Health, Mental Health Services in NSW: Final Report, Parliamentary Paper No 368 (2002); Mental Health Council of Australia and the Brain and Mind Research Institute, Not For Service: Experiences of Injustice and Despair in Mental Health Care in Australia, in association with HREOC (Canberra, 2005); Commonwealth, Senate Select Committee on Mental Health, A National Approach to Mental Health – From Crisis to Community, First Report, (March 2006).

81. See CP 5, ch 1.

82. A court may not set a non-parole period for sentences of less than six months: see CSPA s 46.

83. CSPA s 44(1). A court may decline to set a non-parole period if it considers it to be appropriate because of the nature of the offence to which the sentence relates or the antecedent character of the offender, because of any other penalty previously imposed or for any other reason that the court considers sufficient: CSPA s 45(1).

84. CSPA s 44(2).

85. See, eg, R v Wright (1997) 93 A Crim R 48, 55; Alexander v The Queen (2000) 118 A Crim R 350, 358; R v Arnold [2004] NSWCCA 294, [76]; R v Riley (Unreported, NSW Supreme Court, Mathews AJ, 2 May 2008); also R v Way (2004) 60 NSWLR 168.

86. See, eg, R v Bonett [2009] NSWCCA 135, [37].

87. R v Sims (1995) 83 A Crim R 1.

88. R v Henry [1999] NSWCCA 107, [76].

89. See R v Zeilaa [2009] NSWSC 532, [20].

90. See, eg, Withers v R [2009] NSWCCA 133 where the offender’s impairment resulted in the length of the total sentence being moderated since it would increase the severity of the custodial experience, in addition to an adjusted non-parole period due to the need for a longer period of supervision in the community to monitor compliance with treatment and medication: [41]; R v Szabo [2003] NSWCCA 341, [14]-[16]; Fisher v R [2008] NSWCCA 103, [38]-[39].

91. See [8.26]-[8.29].

92. See especially Issue 5.6.

93. See [8.86], [8.90], and [8.94].

94. In 2007-08, the Department prepared more than 26,600 pre-sentence reports, assessing the suitability of offenders for various custodial and non-custodial sentencing options: Department of Corrective Services, Annual Report 2007/08 (2008), 42.

95. See NSWLRC DP 35, [11.19]; and NSWLRC, Sentencing Report 79 (1996), [8.57].

96. See NSWLRC DP 35, [11.19].

97. ALRC, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [28.98]-[28.99], recommendation 28-11.

98. NSW Department of Corrective Services, Facts and Figures: Corporate Research, Evaluation and Statistics (2009) (see «http://www.dcs.nsw.gov.au»). Figures correct at June 2008.

99. See CP 5, ch 1.

100. The only example in NSW is for drug treatment detention: see Drug Court Act 1998 (NSW) s 18C. However, this is not available for people with a mental illness, condition or disorder that is serious or leads the person to be violent: Drug Court Act 1998 (NSW) s 5A(3).

101. Within the meaning of the Mental Health Act 1990 (NSW) s 4: see CP 5, ch 2.

102. See MHFPA s 35, 55,

103. Crimes Act 1914 (Cth) s 20BS; Sentencing Act 1995 (NT) s 80(1)(e), (9), (10); Sentencing Act 1991 (Vic) s 92, 93A; Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) s 34(1)(a). In Victoria, an indefinite order may be made in cases where an indefinite term of imprisonment would have been imposed: see Sentencing Act 1991 (Vic) s 18B, 18E.

104. Sentencing Act 1997 (Tas) s 75, 77; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 24. A person subject to a restriction order is reviewed at least annually by a Forensic Tribunal, and the has effect until discharged by the Supreme Court: Criminal Justice (Mental Impairment) Act 1999 (Tas) s 24, 26(2), 37(1).

105. Mental Health Act 1983 (UK) s 41, 42, 43, 70, 71, 73-75.

106. See Sentencing Act 1991 (Vic) s 80 which provides for offenders to be detained for up to five years under a residential treatment order. See also Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) s 34; Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (NZ) s 7-8, pt 5 subpt 4.

107. Sentencing Act 1991 (Vic) s 93A(7); Sentencing Act 1995 (NT) s 80(1)(e), (9)-(10).

108. Crimes Act 1914 (Cth) s 20BS(1), (3)-(4).

109. Crimes Act 1914 (Cth) s 20BS(6), 20BT(1)-(2). The release may be subject to such conditions as the Attorney General considers appropriate, including a condition that the person be released into the care of a specified person, for the balance of the period of the order: Crimes Act 1914 (Cth) s 20BT(2).

110. Sentencing Act 1991 (Vic) s 93A(7); Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (NZ) s 68, 71; Mental Health (Compulsory Treatment and Care) Act 1992 (NZ) s 47.

111. See Crimes Act 1914 (Cth) s 20BU; Sentencing Act 1995 (NT) s 80(6), (7), (11).

112. See [8.56]-[8.59].

113. See for example Director of Public Prosecutions v Houn [2008] NSWLC 16.

114. This procedure is established by Local Court Practice Note 4 of 2007: Provision of Psychiatric Reports to Correctional Facilities. The Commission is not aware of any equivalent protocol in the District or Supreme Courts.

115. Auditor General Of NSW, Performance Audit: Prisoner Rehabilitation: Department of Corrective Services (2006), 25, 28; J Simpson and M Sotiri, Criminal Justice and Indigenous People with Cognitive Disabilities, Discussion Paper for Aboriginal and Torres Strait Islander Services (2004), 32; NSW Legislative Council Select Committee on the Increase in Prisoner Population, Issues Relating to Women, Interim Report (2000), [5.108]-[5.120]. See also Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 5, sch 1 cl 14.

116. See [8.93]-[8.101].

117. See, eg, R v Vachalec (1981) NSWLR 351, 353-354; and R v Paddock [2009] NSWSC 369, [34].

118. MHFPA s 67. As to community treatment orders, see Mental Health Act 2007 (NSW) pt 3, and CP 5, ch 2.

119. MHFPA s 61(3).

120. NSWLRC, Sentencing Discussion Paper 33 (1996), [7.4].

121. For a discussion of the issues concerning parole, see NSWLRC DP 33 ch 7; NSWLRC Report 79, ch 11; and R Simpson, Parole: An Overview NSW Parliamentary Library Research Service, Briefing Paper No 20/99 (1999).

122. See CASA s 125.

123. See [8.51]-[8.54] regarding non-parole periods.

124. CSPA s 50.

125. See CASA pt 6-8; Crimes (Administration of Sentences) Regulation 2008 (NSW) ch 7.

126. CASA s 135(1).

127. CASA s 135(2).

128. CASA s 135A.

129. Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 232.

130. See CSPA s 51; CASA s 128, 128A; Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 224, 225.

131. CASA s 128, 128A; Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 224, 225; CSPA s 50, 51, 51AA; Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 5, 6. Before making an order concerning residence or treatment, the court, or the Parole Authority, must consider a report from a probation and parole officer as to the offender’s circumstances, and obtain the consent of any third parties who may be affected: Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 6.

132. CASA s 193. The Parole Authority can compel the attendance of witnesses and production of documents, and may require evidence to be given under oath: pt 8 div 2. See also provisions regulating disclosure of documents held by the Authority, including medical records: see s 193A, 194.

133. See [8.51]-[8.54].

134. For example, some parole conditions, such as non-association or place restriction conditions, may be difficult for some such offenders to comprehend without careful explanation. Further, significant support may be required to assist offenders to fulfil obligations, for example, teaching an offender with an intellectual disability how to tell the time, read a public transport timetable and buy a ticket, in order to keep reporting appointments with a parole officer: see NSWLRC DP 35, [12.37]-[12.39].

135. This could include offenders who may be subject to a CTO while in prison: see [8.69]-[8.72].

136. The court is required to undertake a three step reasoning process in deciding to impose a semi-custodial sentence: first, to see if alternatives to imprisonments are available; secondly, to set the term of imprisonment; and thirdly, whether alternatives to full-time imprisonment are appropriate and available: see Douar v R [2005] NSWCCA 455, [69]-[72]; R v Zamagias [2002] NSWCCA 187, [23]-[28]. It is preferable if the court articulates all three steps: R v Assaad [2009] NSWCCA 182, [33].

137. CSPA s 6 and pt 5.

138. As at June 2008, DCS supervised 728 offenders attending 7 periodic detention centres throughout NSW: see NSW Department of Corrective Services, Facts and Figures: Corporate Research, Evaluation and Statistics (2009) (see «http://www.dcs.nsw.gov.au»).

139. See [8.86] regarding the “suitability” requirement.

140. CSPA s 66(1).

141. CSPA s65A.

142. CSPA s 65B(1). A ‘prescribed sexual offence’ is defined in s 65B(2) as a sexual offence committed against a person less than 16 years of age, or a sexual offence of which sexual intercourse is an element, and related offences.

143. CSPA s 66(2), 69(1).

144. Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 15. The presence of a major psychiatric or psychological disorder is listed as an indicator of unsuitability.

145. See CSPA s 66(3)-(4).

146. See CSPA s 50, and [8.74].

147. CSPA s 51; CASA s 128, 128A; Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 224, 225.

148. CSPA s 163.

149. CASA s 181.

150. CASA s 165.

151. CSPA s 7 and pt 6. See R v Jurisic (1998) NSWLR 209 regarding the exercise of the court’s discretion to make home detention orders.

152. Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 200(c).

153. See Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 200. Additional conditions, not inconsistent with the standard conditions, may be imposed by the court or the Parole Authority: see CSPA s 82, and CASA s 103, respectively.

154. See CSPA s 76. The offences include homicide, certain sexual offences, domestic violence offences, and stalking or intimidation.

155. CSPA s 77. The restriction applies to convictions for some of the offences “at any time”; for other categories, to convictions within the last five years.

156. CSPA s 78(1)(a). See also [8.90].

157. CSPA s 78(1)(b).

158. CSPA s 78(1)(d).

159. CSPA s 78(2)(a), 80.

160. CSPA s 81(2).

161. CSPA s 78(1)(c).

162. Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 20.

163. CSPA s 78(3).

164. CSPA s 78(4). See CSPA s 66(4)(a), and [8.86] regarding periodic detention.

165. CASA s 166(1), 182.

166. CSPA s 167, 180.

167. The number of hours of community service must not exceed 500, or the maximum number of hours prescribed for particular offences in the regulations: see CSPA s 8(2). See Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 22 regarding the prescribed maximum hours.

168. See R v El Masri [2005] NSWCCA 167.

169. CASA s 3.

170. Work may also include graffiti removal: see CSPA s 91.

171. CSPA s 86(1). 89(1).

172. CSPA s 88.

173. CSPA s 86(2), (4). The court may, however, decline to make a CSO even where an offender has been assessed as “suitable”: s 86(3).

174. Crimes (Administration of Sentences) Regulation 2008 (NSW) reg 211.

175. Conditions may include drug or alcohol testing, and participation in development programs up to three times per week for a total period of up to 15 hours per week: see CSPA s 90.

176. CASA s 123.

177. CSPA s 115(2). An offender may also apply to the court to have a CSO revoked in the interests of justice.

178. CSPA s 115(3).

179. CSPA s 24(a).

180. CSPA s 24(b).

181. CSPA s 9.

182. CSPA s 12.

183. CSPA s 10(1)(b). The NSW Sentencing Council has been asked to review the use of non-conviction orders and good behaviour bonds: see «http:// www.lawlink.nsw.gov.au/lawlink/scouncil/ll_scouncil.nsf/pages/scouncil_whats_new#non_conviction_orders».

184. CSPA s 13.

185. CSPA s 95, 95A. That condition may only be placed on a bond where the court is satisfied that an intervention program is available in the area in which the person resides; that the offender is eligible and suitable to participate in the program; and that participation would promote rehabilitation and reduce the likelihood of re-offending: s 95A(2).

186. CSPA s 95B.

187. CSPA s 99A.

188. CSPA s 99A(5).

189. CSPA s 99A.

190. Bugmy v The Queen [2004] NSWCCA 258, [48]-[61].

191. CSPA s 95(c).

192. CSPA s 97.

193. CSPA s 98. In the case of a suspended sentence, the court must revoke the bond unless the breach was trivial or there were good reasons for it: s 98(3).

194. NSWLRC Report 80, [11.32].

195. This has led to calls for its abolition and replacement with more flexible community-based monitoring: see, eg, NSW Sentencing Council, Review of Periodic Detention (2007); and Attorney General and Minister for Justice, An Intensive Corrections Order for NSW, Consultation Paper (2008).

196. The reasons for this include social disadvantage associated with the impairment and a lack of support to assist such offenders to access community-based sentencing options: see NSW Legislative Council Standing Committee on Law and Justice, Community Based Sentencing Options for Rural and Remote Areas And Disadvantaged Populations (2006), 53-57, 101-104, 210-212 and Recommendations 22, 38; and NSW Legislative Council, Select Committee on the Increase in Prisoner Population, Final Report (2001), [6.147].

197. See, eg, NSW Sentencing Council, Review of Periodic Detention (2007), [3.35].

198. NSW Legislative Council Standing Committee on Law and Justice, Community Based Sentencing Options for Rural and Remote Areas and Disadvantaged Populations (2006), [4.163]-[4.165], [7.161]-[7.170], Recommendation 38; NSW Legislative Council, Select Committee on the Increase in Prisoner Population, Final Report (2001), [6.147]. See for example R v Evans [2006] NSWDC 89, [1]-[3], [8].

199. Crimes (Sentencing Procedure) Regulation 2005 (NSW) reg 15. See [8.86].

200. For example, the option of home detention may be a difficult one for an offender living in a homeless shelter or other residential facility.

201. NSWLRC DP 35, [11.67].

202. CSPA s 11(1) and see generally Bail Act 1978 (NSW) s 36A. CSPA s 11 implements NSWLRC Report 79, recommendation 17.

203. R v Trindall (2002) 133 A Crim R 199, [62]-[64]; R v Di Gregorio [2004] NSWCCA 9, [51]-[55]; R v Williams [2004] NSWCCA 64, [17]-[31]; R v Leahy [2004] NSWCCA 148, [8]-[16].

204. CSPA s 11(2A).

205. See, eg, R v Pantelakis [2008] NSWCCA 265.

206. See also Sentencing Act 1991 (Vic) s 80(1)(c), (2) which expressly provides for adjournment of sentencing and implementation of services to offenders with intellectual disabilities.