How To Define Probation (NSW)

Probation is a sentencing option commonly used by courts in NSW for both adult and child offenders. Probation involves supervision of offenders in the community by Corrective Services, combined with rehabilitation programs. It is considered when an offender is facing prison but would benefit instead from supervised rehabilitation in the community. In deciding whether probation is appropriate, a court considers the circumstances of the offence and the characteristics of the offender. Probation reflects a welfare approach to criminal justice, where offending is often the result of social disadvantage, such as a lack of family or economic support. To define probation, this article looks at its aims and implementation.

Why probation?

The rationale for probation is that it:

• promotes rehabilitation by helping an offender to maintain normal social contacts and fulfil social obligations such as employment;
• allows an offender to take part in programs to prevent re-offending, such as restorative justice, drug treatment, anger management, or community service;
• avoids the negative impacts of imprisonment;
• costs less than imprisonment; and
• minimises the impact of a conviction on an offender and their family.

Legislation to define probation

To define probation when sentencing adults, the Crimes (Sentencing Procedure) Act 1999 applies.

The Children’s Court can impose an order for probation on a juvenile offender (someone aged under 18) under Section 33 of the Children (Criminal Proceedings Act) 1987. The conditions of probation can be in place for up to two years, during which time the offender is supervised by Youth Justice NSW.

The process

During sentencing, a judge can request a pre-sentence report be prepared, which is to include an assessment of the offender’s suitability for probation. This report evaluates the likelihood of reoffending and includes a risk assessment which considers the offender’s criminal history, education, employment, financial background, family history and health.

Once an order is imposed, an offender is assigned a community corrections officer to help them set goals and learn skills for law-abiding lifestyle, and to monitor their progress. The case plan is formed based on the type of offence, why it occurred and the risk of recurrence, and it establishes the level of contact required with the probation officer in line with minimum reporting standards.

Types of probation orders

Section 4A of the Crimes (Sentencing Procedure) Act 1999 states a “supervised order” for adults can be one of three types: Conditional Release Order, Community Corrections Order or Intensive Correction Order. Each of these orders has standard conditions that the offender must not commit any offence and must appear in court if summoned.

Courts have a wide discretion to attach other conditions to an order. Common conditions include:

• supervision for a fixed term;
• rehabilitation for substance abuse;
• payment of compensation to a victim;
• restrictions on contacts and movement.

An offender can be subject to more than one order at the same time.

A community corrections officer has the power to suspend certain conditions, such as a non-association or place restriction condition, if they deem it appropriate.

Conditional Release Order

Under Section 9 of the Act, if a court finds a person guilty of an offence, instead of imposing a jail sentence or fine, it can make a Conditional Release Order. This order has a maximum of two years and can be made with or without a conviction. No fine or community service can be imposed.

In deciding whether an order is suitable, the court must consider:

• the person’s character, antecedents, age, health and mental condition;
• whether the offence is trivial;
• the extenuating circumstances of the offence;
• any other matter the court thinks proper.

Community Corrections Order

Under Section 8(1) of the Act, if a court convicts a person of an offence, instead of imposing a jail sentence, it can make a Community Corrections Order.

The maximum term for this order is three years. A fine and community service can also be imposed.

Intensive Corrections Order

Under Section 7(1) of the Act, if the court sentences a person to jail on one or more offences, it can make an Intensive Corrections Order.

The term is the same as the term of imprisonment but an order cannot be made for a  single offence if the jail term imposed exceeds two years, or three years for aggregate offences. The court must not set a non-parole period.

A fine, community service and home detention can also be imposed.

Community safety must be the “paramount consideration” in deciding on this type of order. The court must consider any assessment report made about the offender and evidence from a community corrections officer.

Compliance

If an offender complies with an order, they can expect no further sentence to be imposed when the order expires. If a condition is breached, a court can order the offender to appear, then:

• take no action;
• modify conditions;
• revoke the order and resentence the offender.

For advice on any legal matter, please contact Armstrong Legal.