What is a Conditional Release Order?

A conditional release order (or CRO, for short) is a sentencing option that the court may use as an alternative to a fine or imprisonment. They are most commonly imposed by the court for less serious criminal and traffic offences and for people that have a limited criminal record.

CROs were introduced in 2018 as part of a major overhaul of NSW’s Local Court sentencing regime. Before 2018 a CRO was generally known as a “good behaviour bond”. A CRO is still very similar to the previous bond and is generally used as an extra incentive for a person to refrain from re-offending, given the more serious consequences that flow from breaching the order. They are the least onerous of the community-based orders.

Conviction and CROs

There are two scenarios in which a court can impose a CRO:

• Upon conviction they can be used to replace a punishment of fine or imprisonment
• If a court decides to not convict, they can still impose an order to provide some limits on a person’s behaviour in the community

The court is very aware of the significance of a criminal conviction on a person’s life. It has described the recording of a conviction as “a formal and solemn act marking the court’s, and society’s disapproval of a defendant’s wrongdoing”.

The court has recognised that a criminal conviction is a great punishment on its own, not considering further penalties of fines, community orders, or custodial sentences. This is particularly the case when someone has never had a criminal conviction before.

The consequences of a conviction can extend to many parts of life. In traffic matters it can often result in a lengthy licence disqualification period that restricts a person’s autonomy and at times severely limits their ability to fulfil employment and familial obligations.

In general, a criminal conviction can negatively impact a person’s opportunities in social and employment contexts.

At times the potential impact of a conviction on a person’s wider life may be seen to outweigh the seriousness of the criminal conduct. The court has emphasised that there are rare situations where justice is better achieved by a decision not to convict an offender. This often requires relatively minor offending behaviour, no criminal record (or a very slight one) and a compelling case (backed up by character references and evidence of remorse and rehabilitation) that a person is deserving of the court’s discretion.

The imposition of a CRO in these circumstances may further satisfy the court that there is a very low risk of reoffending and no need to impose the additional penalty of conviction.

However, the more objectively serious an offence gets the greater the need for the court to send a general message to society that such behaviour is unacceptable. This is known as “general deterrence” and plays a big part in the court’s decision to record a conviction or not. Often, while an offender’s personal circumstances might favour a non-conviction, the court must set an example and show potential offenders that they will not be met with leniency if they choose to misbehave.

For more information on receiving a non-conviction, read the article on section 10 dismissals.

Length of a CRO

The maximum length of time a court can put a person under a CRO is 2 years. Generally, the smallest amount of time someone would be under such an order is 3-6 months.  

A CRO will commence on the day the order is made. It cannot be backdated.

How the court decides whether to impose a CRO or not

The legislation requires the court to have several specific considerations before they decide whether a CRO is an appropriate penalty or not. Those factors are:

• A person’s character, history, age, health and mental condition
• The trivial nature of the offence and the offending behaviour
• The extenuating circumstances in which the offence was committed
• Any other matter the court thinks it is appropriate to consider

A person’s character, history and age:

If the court can be provided proof that the offending behaviour is out of character for a particular person, a CRO becomes a more appropriate sentencing option. Evidence of such things can satisfy the court that there is a low risk of reoffending and little need to provide a punishment that specifically deters a person from committing more offences.

Often evidence of a person’s good character (for example, from written character references from employers, community members or family) or a demonstrated lack of criminal history will provide a strong argument to the court that a harsh punishment is not needed.

Age is also an important consideration. The court has recognised the need to provide young, first-time offenders with a second chance, particularly where their behaviour could be seen as a momentary lapse in an otherwise respectable lifestyle. A minimal community-based order can be imposed to provide some consequences for wrongdoing while still allowing a person a second chance to maintain their good reputation.

“Mental conditions”

The court can consider the impact of mental illness on a person’s sentencing outcomes in different ways. The mental illness or condition does not need to be connected to the offending behaviour for the court to consider it on sentence.

If it has contributed to the wrongdoing, then the court may decide a person’s responsibility for their actions has been reduced and therefore they might be liable for a lesser punishment.

If the mental illness has not contributed to the offence, then the court may still find that it is inappropriate to make a general example of this person to larger society and potential offenders, given the difference in their personal circumstances.

However, it is important to know that the presence of a mental illness does not always mean a person receives greater leniency from the court. It may have the opposite effect and convince the court that a person is in need of greater supervision and correction to ensure they don’t continue to commit offences.

The exact impact that mental health has on a sentencing decision will be specific to each person’s individual circumstances and the facts surrounding their offending behaviour. However, there are strong, recognised links between criminal conduct and mental health issues and it is important that the court is fully informed of anything that may have affected a person’s behaviour before they decide what penalty to impose.

“Trivial nature of the offence”

When a court decides whether an offence is “trivial” or not, they tend to consider the actual circumstances in which an offence was committed as opposed to putting particular offences as a whole in the “trivial” category.

The court’s consideration of triviality will most likely focus on:

• How much danger the offender placed themselves and others in
• Whether any actual damage or harm was caused
• The actual or potential negative impacts to the greater community by the offender’s conduct
• And how blatant the disregard for the law was in the situation

The more trivial or technical an offence becomes, the more appropriate a minor penalty will be in the eyes of the court.

“Extenuating circumstances”

The court can also consider the justifications behind someone’s offending behaviour. There are situations where a person has to concede that they did commit the offence but can provide a compelling explanation as to why they disobeyed the law. Where the offence committed is minor and a person can provide a reasonable explanation, the court may be satisfied that a minimal penalty such as a CRO is appropriate.

A common example of a compelling extenuating circumstance is choosing to drink drive because someone needs urgent medical attention, and the only viable option is to drive them to a hospital/medical practice.

Standard conditions for a CRO

All CROs come with the same two standard conditions:

• The offender must not commit any offence (or, the offender must be of “good behaviour”); and
• The offender must come before the court if they are asked to at any time during the period the CRO is active.

A person must comply with both of these conditions for the duration of the order or face the consequences of breaching a CRO.

Additional conditions for a CRO

In addition to the two standard conditions, the court can also choose to impose several optional conditions if they think it is appropriate. Generally, these additional conditions are imposed if the court deems them to be helpful to an offender’s rehabilitation and compliance with the order.

The other possible conditions that can be imposed on a CRO are:

• A condition requiring someone to undergo rehabilitation or a specific treatment program
• A condition that requires a person to refrain from consuming alcohol or a particular drug or both
• A condition that prohibits someone from associating with a particular person or group of people
• A condition that prohibits someone from visiting a particular place or area
• A condition that requires someone to submit to supervision by a community corrections officer (similar to parole supervision)
• The court can also impose further conditions as it sees fit for the particular situation (for example, an order to comply with an AVO or an order to pay someone compensation)

Supervision orders:

If a supervision order is attached to a CRO there are several more obligations an offender must fulfill. They are required to regularly report to a community corrections officer and comply with any “reasonable direction” the officer gives. These directions can include:

• Instructions to reside at a certain place
• Orders to participate in particular programs, treatments, interventions or activities
• Participation in certain employment, education or training programs
• Orders to cease drug/alcohol use
• Requirements to undergo drug and alcohol testing

It should be noted that all domestic violence offenders that are dealt with via CRO must also be under a supervision order unless there are reasons for not doing so.

Varying or revoking conditions under a CRO

While the two standard CRO conditions must be in place for the entire period of the CRO, any additional conditions may be imposed for a lesser duration or be revoked before the CRO ends.

An offender can make an application to the court to have additional condition/s revoked or varied if they have good reason as to why the particular condition is no longer appropriate. The court can refuse the application if they think it is without merit.

A community corrections officer can make a similar application to have conditions imposed, revoked or varied.

Breaching a CRO

While a standard CRO might seem to be a fairly minimal imposition on a person’s day to day life, the consequences for breaching any condition under the order can be quite serious.

If the court suspects that a person has breached their CRO in any way, they can call the offender to appear before the court. If someone subject to a CRO has committed a further offence, the court will also check to see if they have breached any community order at the time of the offending.

If the court is satisfied that the offender has failed to comply with any of the conditions under the particular order, they can do one of three things:

• Decide to take no action
• Vary or revoke any conditions on the order or impose further conditions
• Revoke the order

Sometimes the breach to the CRO is accidental or very minor, which is why the court has the discretion to do nothing or make minor adjustments in response to the breach. Where the breach becomes more serious and intentional, it is unlikely the court will choose to ignore the matter.

The most serious consequence resulting from a breach is revocation of the CRO. Once a court revokes the order, they can re-sentence an offender for the original offence. This most often means the person will be subject to a harsher penalty then they were given the first time. If they were given a CRO without conviction, it is very unlikely they would escape conviction a second time round.

If a person has breached the CRO by committing another offence, they can be sentenced for both the new offence and the original offence that related to the CRO. The court does not look kindly on failures to comply with court orders, and this is often reflected in the harshness of penalties they impose.

What is ‘Larceny’?

In New South Wales, ‘stealing’ or ‘theft’ falls into a few different categories of crimes. ‘Robbery’ generally covers using threats and/or physical force to steal directly from people. There are also offences under the ‘housebreaking’ division that cover breaking and entering into a premises/home and stealing property from there. ‘Larceny’ is the simplest of these offences and refers to the basic act of stealing without any further components. Put simply a larceny is physically taking something that doesn’t belong to you without permission.

Larceny is mentioned in s 117 of the Crimes Act 1900 (NSW) but a breakdown of the crime itself cannot be found in legislation. The elements of larceny have been developed through case law. In Australia, the High Court has set out the elements of larceny in several different judgments.

Physical elements of the offence:

Most crimes have a physical and mental aspect to them. The physical aspect refers to the actual conduct or action that must be taken in order for the crime to have occurred. There are four physical elements of larceny. For the prosecution to prove a larceny, there must be:

• Tangible personal property;
• That is in possession of another;
• That is physically taken and carried away;
• Without the consent of the person who possessed the property.

Tangible personal property:

For it to be a larceny, the property must be a specific, physical, moveable item. Larceny does not include the stealing of information, digital money, virtual designs/property or anything else intangible.

It also traditionally did not include animals and land fixtures but there have been sections added into the Crimes Act to ensure that the theft of such things are still to be treated in the same way a normal larceny is. There are specific sections for the stealing of dogs, cattle, trees/plants and materials (like wood, glass or metal) that are fixed to a house or land.

The property must also have some kind of value. Most things have a monetary value but the courts have stated that things with a merely sentimental value will also suffice. There have been specific sections added in to deal with the stealing of physical papers that are technically worthless but provide proof or authority over valuable goods (for example, a cheque or a will).

In possession of another:

Larceny is known as an offence against possession. This is in reference to the difference between owning something and possessing it. Often those two things coincide but not always. For example, someone who is renting a car is in lawful possession of the car, but they do not own it. Technically it is possible for the owner of the car to commit a larceny against the renter by taking the car. This is because the person renting the car has the current legal right to possession, not the owner.

Possession can be established in multiple ways. A person could have “actual possession” which means they have current physical custody of the property. Usually this means it is on their person or in a place where only they have the right to access and use it (for example, the property is in a bag or in their house).

A person could also have “constructive possession” which means they are not currently in physical custody of the property, but they have the right to take possession whenever they want. The most common example of constructive possession is a car – a person is still in possession of their car even if they park it and go somewhere else.

The courts have also made it clear that you can have possession over unlawful property and that a larceny can be committed when unlawful property is taken. The most common example of unlawful property is illicit drugs like cannabis or cocaine.

However, because larceny is an offence against possession, you cannot commit a larceny if you take abandoned goods. This is because if a person chooses to abandon property, they have impliedly renounced their rights of possession over it.

The courts are quite strict in what they will consider to be abandoned property. Looking at the circumstances in which the property was found, it must be appear highly likely that a person has purposefully left the property and does not care what happens to it. This is different from a person who has lost property and is likely still trying to find it. If it is more likely the property is lost, the court expects to see reasonable efforts to locate the owner before the property is taken.

Physically taken and carried away:

A larceny requires an actual physical ‘picking up’ and/or moving of an item. Although the threshold for this requirement is not very high – the court has stated that even the slightest of movements will be sufficient.

Without consent:

The taking or moving of property must be without the permission of the owner and/or person in possession of the property. This includes actual and implied consent.

Difficulties arise in this area because consent can be misleadingly obtained in certain situations – for example, a person giving permission may be mistaken as to the identity of the person taking the property.

Implied consent can also be abused. This is particularly the case in retail contexts. At most shops there is an implied consent for people to pick up and carry objects around the store for the purpose of browsing and purchasing. It is not expected in most stores that you must get explicit permission from the shop owner or manager before you can pick up and move items. However, in the case of shoplifting, a larceny can occur even before a person leaves the shop if they have picked up an object and never had the intention to pay for it. Concealing items or placing them in bag or pocket without first purchasing it is often seen as abusing the implied licence to carry objects in a store.

Mental elements of the offence:

The mental element of a crime generally refers to the required ‘state of mind’ a person must have while they are committing the physical aspects of the crime. For the prosecution to prove a larceny they must show two aspects of a person’s state of mind at the time:

• They an intention to permanently deprive the owner/possessor of the property; and
• They did so dishonestly.

Intention to permanently deprive:

The prosecution must show evidence that points to an actual intention at the time the property was taken to permanently deprive the owner and/or person in possession of the property. Intention to permanently deprive is often shown either through a person using the property like it’s their own, consuming the property or by significantly altering it in some way.

However, section 118 of the Crimes Act also states that intention to return the property is not enough on its own to defend a charge of larceny. If a person has taken property and used it for their own purposes and benefit but can show an intention to one day return it or repay the owner, they can still be found guilty.

Dishonesty:

The court must also determine that a defendant’s actions were dishonest. This means they must specifically identify the knowledge, belief or intention that accompanied the alleged larceny and decide whether this was dishonest according to the standard of “ordinary, decent people”.

Dishonesty becomes more difficult to find when there are aspects of mistake, accident or miscommunication involved at the time property is taken. Sometimes people accidentally take property that is not theirs (for example, taking a suitcase at the airport that looks similar to yours). People can also mistakenly think they have the consent of the owner to take property when they do not. While these actions are not initially dishonest, the court may still find a person has committed a larceny if they later become aware of the mistake/confusion and choose not to rectify it.

Defences:

Claim of right:

If a person has a genuine belief they have a right to the property or money that is in someone else’s hands (even though this is not true in actual fact) they may be able to use the defence of a claim of right.

The claim must come from an honestly held belief (not from fanciful or wishful thinking) but it is not required to be reasonable. They must believe that have a legal entitlement to property, not simply moral entitlement (for example, a belief you deserved more payment for services does not give you the right to steal from another).

If you are exercising a claim of right, it must encompass all of the property that has been taken. This means if you believe you were entitled to a certain set of property or a certain amount of money but take more property or money than you had a right to, you have still committed a larceny.

If a claim is sufficiently raised on the facts, the prosecution must disprove beyond reasonable doubt that such a claim exists.

Penalties:

Penalties for larceny are divided based on the estimated value of property stolen. Regardless of the value of property stolen, all larcenies have the same maximum prison sentence attached. The maximum fine increases with the increasing value of the property.

The lesser value larceny offences are classified as “Table 2 Offences” which means they will be dealt with in the Local Court unless the prosecution choose to take it up to the District Court, where more severe penalties are available. The higher value larcenies are “Table 1 Offences” which also means they will be dealt with in the Local Court unless the prosecution or the defendant choose to take it to the District Court. Certain situations might mean the practices and trial structure of the District Court jurisdiction are more appropriate in the circumstances.

For a larceny of property that is worth under $2000, police may choose to issue a person with an infringement notice rather than a court attendance notice. This is usually for very low value larcenies and means a person will not have to go to court and risk a criminal conviction. They will only have to pay a maximum fine of $300.

Background:

The high range drink driving guideline judgment (‘the Guideline’) was developed in response to an application by the NSW Attorney General to address insufficient and ineffective sentencing outcomes.

In the years leading up to the Guideline, high range drink driving was one of the most common offences to be sentenced in the Local Court and although the maximum penalties were quite high, they were rarely used.

The NSW Attorney General submitted that high range drink driving was an “objectively serious summary offence which puts the lives of the offender and others in danger”. The approach to sentencing leading up to the Guideline was declared too lenient and was not working to discourage people from committing the offence.

Therefore, it was suggested that a ‘guideline’ was needed to set out rules to enforce a stricter, more consistent sentencing regime.

Harsher penalties that have a bigger impact on the lives of offenders are designed to deter potential wrongdoers that driving after consuming a lot of alcohol is dangerous and not to be tolerated. While concern for public and personal safety should be enough to convince people not to drive, the prospect of large fines, criminal conviction and possible prison time further works to convince people that high range drink driving is just not worth the risk.

The “ordinary case”:

The Guideline sets out the common characteristics of an ‘average’ high range drink driving offence – it refers to this as the “ordinary case”. In individual sentence hearings, magistrates can use this description of the “ordinary case” to place the matter currently before them on a scale from less serious → average → more serious offending conduct. They can then adjust the scale and type of penalty accordingly.

The “ordinary case” includes:

• A person who drove to avoid “personal inconvenience” or because they believed they weren’t too impaired by alcohol.
• They were detected by RBT (as opposed to police arriving because of a collision or road incident).
• The offender had prior good character, no criminal record and a minor traffic record.
• The offender pleaded guilty straight away and showed no risk of re-offending.
• Loss of licence would be a significant inconvenience for the offender.

An “aggravated” case:

The Guideline also sets out a list of common factors that would “aggravate” or make the offending conduct more serious, warranting a higher penalty. Generally, there is a focus on the degree of danger the offender and the public were placed in by the offending conduct. These factors make an offender more “morally culpable” – which means they have a higher degree of blame or liability placed on them for their actions.

Aggravating factors in a high range drink driving incident can include:

• Driving with other passengers in the car
• Being involved in an actual collision with people or property
• Driving in an erratic, aggressive or dangerous way
• Driving for an extended period of time
• The degree of intoxication (i.e. how far past the 0.15 threshold are they?)
• The number of people actually put at risk by the driving (e.g. was someone driving in an area and at a time when there were lots of other road users and pedestrians present?)

Having a poor traffic record and in particular a history of drink driving offences will also increase the severity of the penalty. This is because the court hopes to ‘deter’ someone from repeat offending by imposing increasingly harsh penalties on them. In cases where someone has multiple high range drink driving convictions, the Guideline states that prison time is the most appropriate outcome.

Standard penalties:

The Guideline lists rules that should be followed when deciding a sentence for those cases in the range of the “ordinary case”.

For a first offence high range drink driving conviction:

• A ‘section 10’ (or non-conviction order) will rarely be appropriate
• Attending a driving re-education course or intervention program is not a valid reason to get a non-conviction.
• The automatic disqualification period should be imposed unless there is a good reason to reduce it (reasons can involve employment, medical issues or lack of other viable transport in the area).
• A fine, or combination of a fine and a community release order (which generally involves a good behaviour bond) is likely to be the lowest form of penalty received for this offence.

For a second or subsequent high range drink driving conviction:

• A section 10 (non-conviction order) would be almost impossible to receive.
• A community release order would also be rarely appropriate in the circumstances.
• Where the prior offence was also a high range drink driving charge, anything less than a community service order would be inappropriate.

Aggravated penalties:

The Guideline has further rules for offences that contain circumstances of aggravation:

• Non-conviction orders or community release orders would be exceedingly inappropriate in almost all cases.
• When it is a second or subsequent offence or where there are multiple, “significant” aggravating factors, the most appropriate sentence is a term of imprisonment – either full time or served via an intensive correction order.
• Where it is both a subsequent offence and there were significant aggravating factors, the most appropriate sentence is a full-time term of imprisonment.

Why are non-conviction orders rarely appropriate?

The Guideline was partly created in order to address an ‘over-use’ of non-conviction orders for high range drink driving offences. The NSW Attorney General raised concerns that dealing with a large amount of these offences by way of non-conviction trivialised the offence and did not serve as strong enough deterrence, both for the specific offender and for the community at large.

The maximum penalty for high range drink driving places it on the same level as negligent driving occasioning death. This is an indication of how serious a breach of public safety the legislation considers high range drink driving to be.

The Guideline explicitly states that “there are offences that are so serious that a penalty of some form must be imposed regardless of the personal circumstances of the offender. In my view high range PCA is such an offence”.

While proof of prior good character, evidence of rehabilitation (like attending a traffic offenders intervention program), expressions of strong remorse, and taking responsibility for behaviour will help a person’s sentencing outcomes, they can rarely, if ever, be used to get a non-conviction outcome.

However, the Guideline allows for a small range of scenarios where a non-conviction order may be appropriate. These include:

• When the offending is largely technical, and no real danger arises from the act of driving.
• When there are exceptional “extenuating circumstances” that justify the need to drive while significantly intoxicated (an example of having to drive someone in need of immediate medical attention is given).

The situations in which the court finds appropriate circumstances have proven to be exceedingly rare. In the period September 2018 – September 2021 of recorded cases the court gave 3 section 10 non-convictions out of a total 7 255 cases.