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Sentencing Options for Sex Offenders (NSW)

Written by Daniel Shestowsky

Daniel is a Senior Associate and the Office Manager of our GTC Lawyers Blacktown Office. Daniel holds a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. Daniel is admitted to the Supreme Court of New South Wales and in the High Court of Australia. Daniel has a particular interest and expertise in criminal law. He has appeared in the District Court, Local Court and Children’s Court of New South Wales in a variety of complex criminal matters. Daniel also has experience in Family Law, Civil Law and Immigration Law.

During the early 2000s, community concerns about the long-term psychological effects of sexual offences and particularly child sexual abuse led to some significant changes in legislative schemes and the way sex offenders are sentenced. Since 2001 there have been at least nine amendments to the Crimes Act 1900 relating to sexual assault, the most significant being the Crimes Amendment (Sexual Offences) Act 2008. These amendments have focused on the different types of sexual offences, the maximum penalties relating to those offences and the sentencing options the courts have for dealing with sex offenders.

Standard non-parole periods

One of the changes was the creation of standard non-parole periods for certain sexual offences. A standard non-parole period represents the non-parole period that, taking into account only the objective factors affecting the relative seriousness of an offence, is in the middle range of seriousness. As can be seen below, even for the middle range of matters that the court will see, a significant period of time in custody is to be served for sex offences.

The standard non-parole periods that apply to sex offences in New South Wales are:

  • Sexual assault— 7 years
  • Aggravated sexual assault— 10 years
  • Aggravated sexual assault in company— 15 years
  • Aggravated indecent assault— 5 years (increased to 7 years for offences committed on or after 1 January 2009).

Alternatives to ‘full time’ imprisonment

Under Section 5 of the Crime (Sentencing Procedure) Act, for an offender to be sentenced to ‘full-time’ imprisonment, the court must be satisfied that no penalty other than imprisonment is appropriate. This is known as the ‘Section 5 Threshold.’

Up until 24 September 2018, the courts had several alternative options to full-time imprisonment, even if the Section 5 Threshold had been crossed, including a Suspended Sentence of Imprisonment to be served in the Community, an Intensive Corrections Order or Home Detention. However, since 24 September 2018, the courts can only impose an Intensive Corrections Order (ICO) as an alternative to a sentence of full-time imprisonment.

However, Section 67(1)(b) of the Crimes (Sentencing Procedure) Act 1999 states that an intensive correction order must not be made in respect of a sentence of imprisonment for a “prescribed sexual offence”. A “prescribed sexual offence” is defined in Section 67(2) as:

  1. An offence under Pt 3, Divs 10 or 10A Crimes Act1900, being:
    1. an offence where the victim is under 16 years of age, or
    2. an offence where the victim is any age and the elements of which includes sexual intercourse (as defined by s 61H)
  2. An offence against ss 91D, 91E, 91F, 91G or 91H Crimes Act
  3. An offence against ss 91J, 91K or 91L Crimes Act, where the victim is under 16 years, or
  4. An offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.

What this means is that when the courts are dealing with sex offenders, even those whose offending is at the lower end of objective seriousness or carries lower maximum penalties, they have no alternative but to sentence sex offenders to full-time imprisonment.

Sentencing principles

The court is guided by seven purposes when imposing a sentence on any offender:

  1. To ensure the offender is punished for the offence;
  2. To prevent crime by deterring the offender and the broader community from committing similar offences;
  3. To protect the community from the offender;
  4. To promote the rehabilitation of the offender;
  5. To make the offender accountable for his or her actions;
  6. To denounce the conduct of the offender; and
  7. To recognize the harm done to the victim of the crime and the community.

Rehabilitation of sex offenders

In order to promote the rehabilitation of the offender in sexual offences, there is a reliance on Custody-Based Intensive Treatment (CUBIT) for sex offenders to ensure the key sentencing element of rehabilitation is thoroughly addressed before release. A study, finalized in July 2016, noted that within five years of release from custody, 12 percent of offenders who completed a CUBIT program committed a proven sex offence compared to 25 percent of offenders who were suitable for such a program but did not participate.

Another strategy the court has used to ensure that the rehabilitation of an offender is properly addressed has been to increase the period of time an offender spends on parole as part of any sentence of full-time imprisonment. The purpose of this is to supervise and support the reintegration of offenders before the end of their total sentence while providing a continuing measure of protection to the community. This ensures the offender remains supervised by a Community Corrections Office and has to comply with strict conditions for the remainder of their sentence.

In summary, changing community attitudes have meant stricter and lengthier sentences for sex offenders. This has meant a limit to the alternatives available to courts when dealing with sexual offenders and to an urgent need for strategies to promote and supervise the rehabilitation of such offenders. In the majority of sexual offence matters, courts have no option other than full-time imprisonment. This has meant a heavy focus on alternative strategies such as longer parole periods and custody-based intensive treatment in a bid to reduce re-offending.

If you require legal advice in a criminal matter or in any other legal matter, please contact Go To Court Lawyers. 

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