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.
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.
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)
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.