What orders can a court make?

Contributed by Lorana Bartels and Anthony Hopkins. Current to November 2021.

Section 9 of the Sentencing Act sets out the penalties that a court can impose for an offence in the ACT. The following discussion provides information about these penalties and the circumstances in which they can be imposed. Under s 9, a court may also impose a ‘penalty provided under…any other territory law’. A court may also impose a combination sentence combining two or more of the available sentencing options discussed below, with the exception of intensive correction orders (s 9, Note 2). However, a prison sentence can be combined with other orders (s 10, Note 1).

The court generally has an obligation to provide offenders with written notice of the orders it has made (see e.g. s 14(7) in relation to fines), although the order will still be valid if the court fails to do so (see e.g. s 14(8) in relation to fines). When a court imposes a custodial order, it has additional obligations to explain the sentence to the offender in language he or she can understand (ss 82-84).

Custodial orders

Prison (imprisonment served by full-time detention at a correctional centre or detention place)

A term of imprisonment can only be ordered if the Act that created the offence allows for imprisonment. The relevant legislation (for example, the Crimes Act 1900(ACT)) sets out the maximum period of imprisonment for a particular offence, but these are generally reserved for the worst type of conduct that could constitute the offence. The court can and often does impose a lesser sentence.

If an offence carrying a maximum penalty of more than two years but not more than five years is resolved in the Magistrates Court, the Court cannot impose a prison sentence of more than two years (Crimes Act 1900 (ACT) s 374(7)(a)). For more serious offences dealt with in the Magistrates Court, the maximum prison term the Court can impose is five years (Crimes Act 1900(ACT) s 375(15)(a)). Where the Children’s Court sentences a young offender, the maximum prison term that court can impose for a single offence is two years (Crimes Act 1900(ACT) s 375(15)(a)). Where the Children's Court sentences a young offender, the maximum prison term that court can impose for a single offence is two years (Crimes Act 1900 (ACT) s 375(16)(a)). Where a court sentences an offender for more than one offence, it can sentence them for longer periods than two or five years, depending on the types of offences. The maximum sentence the Supreme Court can impose for a single offence is the maximum penalty stated for the particular offence.

Under s 10(2) of the Sentencing Act, a court is required to consider possible alternative sentences and can only impose a prison sentence if it is satisfied that no other penalty is appropriate. This section also provides that a court can suspend part of the sentence.

Under s 10(3), the sentence must be served full-time in prison, unless the court orders otherwise (for example, by imposing an intensive correction order (ICO) or suspended sentence) or the offender is released from full-time detention under the Sentencing Act or another territory law (for example, if they are released on parole).

Where a court is considering sentencing a young offender to imprisonment, that sentence ‘must be a last resort and for the shortest appropriate term’ (s 133G(2)). If a court imposes imprisonment on someone who was under 18 years old when the offence was committed and they are under 21 when the sentence is imposed, the sentence must be served in a detention place (ie, Bimberi Youth Detention Centre). However, a young offender between the ages of 18 and 21 may be transferred to an adult correction centre under s 111 of the Children and Young People Act 2008.

A prison term usually begins on the day that sentence is passed (s 62(1)) or is taken into custody (s 62(1)(b)). However, a court may direct the sentence to have started on some earlier day, taking into account any time the offender has already spent in custody for that offence (s 63(1)-(3)).

Where an offender is sentenced to more than one prison term, the sentences must be served concurrently (that is, at the same time) unless the court directs otherwise, but the court can order sentences to be served consecutively (that is, one after the other) or partly concurrently and partly consecutively (s 71). Certain offences (for example, those committed while the offender was lawfully in prison or involving an escape from prison) will generally be ordered to be served consecutively (that is, in addition to the sentence(s) for which the offender was already in prison) (s 72). Special rules also apply for prison sentences imposed for fine default (s 73).

Non-parole periods

Where the court imposes one or more prison sentences with a total length of at least one year, it must set a non-parole period (s 65(1)-(2)). The offender may not be released during the non-parole period (s 65(2)). This means they are required to serve this part of their sentence in prison. After this time, the offender may apply to be released on parole and a decision on this will be made by the Sentence Administration Board (for more information on this, see Chapter 7 of the Sentence Administration Act). The court may decide not to set a non-parole period if it considers that this is inappropriate, taking into account the nature of the offence(s) and the offender's previous offending (s 65(4)). In addition, the court cannot set a non-parole period for offenders serving a life sentence (s 65(5)) or for certain 'excluded' sentences (s 64). However, a detainee serving a life sentence may apply for release on licence after serving at least 10 years (Crimes (Sentence Administration) Act 2005 (ACT) s 288. See also ss 289-312 for release on licence). Where an offender who is already serving a prison sentence is sentenced to another prison sentence, this cancels any non-parole period for the existing sentence (s 66).

More details on prison can be found in the Corrections Management Act 2007 (ACT) and Prison and community corrections. More information on parole can also be found in Chapter 7 of the Sentence Administration Act.

Intensive correction orders (ICOs, or imprisonment served by intensive correction)

Under s 11, where a court imposes a prison sentence, it may order the sentence to be served by intensive correction in the community. A court can only make an ICO with the offender’s informed consent (s 77(1)(c)). This is usually available only for sentences of two years or less (s 11(2)), although the court may make such a sentence for up to four years if it considers it appropriate, after taking certain factors into account (s 11(3)). An ICO must include certain core conditions, for example, the offender must not commit an imprisonable offence, must not use drugs and must comply with relevant directions about probation (Sentence Administration Act, s 42). An ICO can also include one or more additional conditions, including community service, rehabilitation, reparation (s 11(5)) and/or a curfew (that is, hours during which the offender has to be at home) (s 11(6)).

The matters the court must consider in determining an offender’s suitability for an ICO include the offender’s degree of dependence on alcohol/drugs, psychiatric, psychological or medical condition, criminal record and response to previous court orders, and employment, personal and living circumstances (s 79).

The court may make or choose not to make this order in spite of any recommendations in the pre-sentence report or evidence about the offender (s 78(6)), but must record the reasons for its decision if it goes against this evidence (s 78(6)).

Further details about the operation of ICOs are contained in Part 5.4 of the Sentencing Act, Chapter 5 of the Sentence Administration Act and covered in Prison and Community Corrections.

Drug and Alcohol Treatment Orders (DATO) (see, also, Drug and Alocohol Sentencing List below)

Under s 12A of the Sentencing Act, where the Supreme Court imposes a prison sentence of at least one year but not more than four years, it may make a drug and alcohol treatment order (DATO) and fully suspend the sentence on the condition that the offender complies with a treatment program. A DATO is only available to an offender who is dependent on alcohol and/or a controlled drug, whose dependency substantially contributed to the commission of the offence and who will live in the ACT for the duration of the sentence (12A(2)(a)). A DATO is not available where the offence committed is a serious violence or sexual offence.

For further information on the process and operation of the Drug and Alcohol Sentencing List and links, please see below.

Suspended sentences (suspension of imprisonment)

A court that sentences an offender to prison may suspend all or part of that sentence (s 12(1)-(2)). This means the offender will not be required to serve the sentence in prison (or won’t have to serve the whole sentence in prison). For example, the court could decide to impose a sentence of six months, but order the offender to serve two months and then suspend the remaining four months of the sentence. Where a court makes a suspended sentence order, it must also make a good behaviour order. This can be for the length of the period of suspension (e.g. four months in the example above) or some longer period (e.g. 12 months).

If the offender breaches the suspended sentence (for example, by committing a further imprisonable offence), the offender may have to serve the sentence (or some part of it) in prison (Sentence Administration Act, s 110). The rules on good behaviour orders are set out further below.

Non-custodial orders

Good behaviour order (see s 13 and ch 6)

Good behaviour bonds are imposed under s 13 and Chapter 6 of the Sentencing Act. This requires an offender to sign an undertaking (agreement) that they will comply with their good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT). A good behaviour order may include various conditions, including community service, rehabilitation program/s (see ss 93-100), probation and/or any other lawful conditions the court considers appropriate (s 13(4)). For example, an offender could be required to take specific medication, attend educational programs and/or submit to urine testing for drugs.

Further rules on good behaviour bonds can be found in Chapter 6 of the Sentencing Act and Chapter 6 of the Administration Act.

Community service

Community service is not available as a separate order in the ACT but this can be ordered as a condition of an ICO (ss 80A-80F) or good behaviour order (ss 85-92). In deciding whether to include a community service condition on either order, the court must consider any medical report the offender has given to the court and any evidence from a corrections officer. The court must also consider if the offender has any major problem with alcohol or drugs, major psychiatric or psychological disorder, serious criminal record, potential unfitness to perform community service work and possible issues with reporting regularly for community service work (ss 80D, 89, 90). Community service can be ordered for between 20 and 500 hours (ss 80E, 85, 91).

Further rules on community service work are contained in Part 5.3 (for ICOs), 6.2 (for good behaviour orders) and Chapter 14 of the Crimes (Sentence Administration) Act 2005.

Fine order

Fines are the most common penalty imposed in the criminal justice system. The Act that creates a particular offence usually sets out whether a fine is to be imposed and what its maximum (and in some cases minimum) amounts are. This usually sets out the maximum penalty in terms of 'penalty units'. The amount of a penalty unit is set in s 133 of the Legislation Act 2001 (ACT). At the time of writing, this was $160.

If an offender has been convicted of an offence punishable by a fine, a court can make a fine order directing him or her to pay a fine for the offence (s 14(1)) of the Sentencing Act. The court is not required to inquire into the offender's financial circumstances before making this order, but must consider any facts established by the offender about their financial circumstances (s 14(3)). As discussed under How the Court Decides on a Sentence, in deciding on sentence a court is required to consider the offender's financial circumstances if relevant and known to the court (s 33(1)(n)). If the court makes a fine order, it must state the amount and how the fine is to be paid (for example, by instalments) (s 14(5)). In the Magistrates Court, the court must generally allow at least 14 days for payment of the fine (s 14(6)). The maximum fine the court can order is the maximum stated in the legislation or, if not stated, up to $2000 in the Magistrates Court and $10000 in the Supreme Court (s 15).

For more information on the administration of fines (including the consequences of not paying), see Chapter 6A of the Sentence Administration Act.

Driver licence disqualification order – motor vehicle theft

Where an offender is convicted of stealing a car, the court may make an order disqualifying (stopping) them from holding or obtaining a driver licence for some period of time the court thinks is appropriate (s 16(1)-(2)). The effect of this disqualification is set out in section 66 of the Road Transport (General) Act 1999 (ACT).

Non-conviction order

A conviction for an offence often has serious consequences. For example, it may mean a person is unable to hold certain types of job. Under section 17(1) and (2) of the Sentencing Act, a court may find a person guilty of an offence but decide not to convict the offender (a non-conviction order). This can be either an order that the charge to be dismissed, if the court is satisfied that it is not appropriate to punish the offender (s 17(2)(a)) or a good behaviour order for up to three years (ss 17(2)(b), (7)) and see above). This type of order is generally only made for relatively minor offences.

In order to make a non-conviction order, the court must consider the offender's character, prior criminal record, age, health and mental condition, the seriousness of the offence and any extenuating circumstances in which the offence was committed (s 17(3)). The court can also consider anything else it considers relevant (s 17(4)) (this could include, for example, their family or employment situation).

If the court makes a non-conviction order, it can make any ancillary order it could have made if it had convicted the offender (s 18). An ancillary order can relate to restitution, compensation or costs (for example, paying back money stolen), forfeiture (for example, the police taking possession of a car used to ram a store), destruction or disqualification or loss or suspension of a licence or privilege (for example, suspending a driver's licence).

Reparation order

Under s 19 of the Sentencing Act, if a person has suffered any loss or expense as a direct result of an offence committed by an offender (for example, a victim's medical expenses), the court may make a reparation order requiring the offender to make reparation to that person. This could be money or in some other way (for example, performing specific chores, such as gardening) (s 19(3)).

If the offence relates to stolen property, the court may order the offender to return the property to its owner or pay that person the value of the property (ss 20 (1)-(3)) and make other relevant orders (s 20(4)).

Further rules on reparation orders are contained in sections 107-113 of the Sentencing Act.

Non-association order and place restriction orders

If a court imposes an ICO, DATO or good behaviour order, it may also impose a non-association order or place restriction order (s 22). A non-association order means the offender is not allowed to be or try to be or communicate with any person named in the order (for example, a co-offender). A place restriction order means the offender is not allowed to be or try to be in or near a named place or area (for example, the place where they committed the offence). These orders are only available for certain kinds of offences (a 'relevant offence'), for example, serious drug offences: see s 23).

The court can make this sort of order if satisfied that it is necessary and reasonable to make the order to stop the offender: harassing anyone or endangering anyone's safety or welfare; committing further offences and/or to help the offender 'manage things that may make the offender more likely to commit further offences (including a relevant offence) if not managed' (s 23(1)(b)(iii)). However, the restriction on an offender under these orders is not to be disproportionate to the purpose for the order (that is, too harsh, given the reasons the order was made) (s 23(2)).

This kind of order can be for up to two years for an ICO and up to one year otherwise (s 24(1)) and can be longer than the main sentence for the offence (s 24(2)). For example, an offender could receive a 12-month ICO and two-year place restriction order).

Section 26 makes it an offence to publish the fact that someone is subject to a non-association order or information that could reasonably identify someone subject to such an order. This carries a maximum penalty of 10 penalty units.

Deferred sentence order (see s 27 and Ch 8)

If an offender has been found guilty of an offence and is not already serving a prison sentence or required to do so and the court considers that he or she should be given a chance to address his or her criminal behaviour (and anything that has contributed to this, for example, drug addiction), then the court can delay sentencing the offender for up to 12 months and release him or her on a deferred sentence order (ss 27(1), 122(1)). The court can make an order requiring the offender to appear before the court at a time stated in the order (s 27(2)) and at other times as required (s 119). The court can include any condition it considers appropriate (s 27(5) (for example, that the offender attend drug treatment). The offender will then be released under the Bail Act 1992 (ACT).

Under s 116, the court must not make such an order unless it considers that releasing the offender on bail would allow him or her to address his or her criminal behaviour, any the factors contributing to it and that, if he or she were to comply with the order and any conditions, the court might not impose as severe a sentence for the offence. In deciding whether to make a deferred sentence order, the court must consider any pre-sentence report about the offender, as well as relevant evidence (s 117(1)). The court may make or choose not to make this order in spite of any recommendations in the pre-sentence report or evidence about the offender (s 117(3)), but must record the reasons for its decision if it goes against this recommendation (s 117(4)). If the court makes this order, it must give an indication of the type of penalty the offender might receive if he or she complies or does not comply with the order and any bail conditions (s 118).

Further rules on deferred sentence orders are contained in ss 119-131 of the Sentencing Act.

Accommodation order

When a court is sentencing a young offender, it can also make an accommodation order (see Pt 8A.3). An accommodation order is an order of the court that requires a young offender to live at a place or with a person, as stated in the order or as directed by the Children and Young Persons Director-General (s133Y). An accommodation order can only be made for a young offender if certain eligibility (s 133ZA) and suitability (s 133ZB) criteria are met. An accommodation order must not be longer than three years (s 133ZC).

Drug and Alcohol Sentencing List

See also Drug and Alcohol Treatment Order above.

The ACT Supreme Court has a sentencing option for people whose drug and alcohol use has contributed to their offending. The Supreme Court sentencing process involves referral to the Drug and Alcohol Sentencing List (DASL), the imposition of a Drug and Alcohol Treatment Order (DATO) (see above) and engagement in an intensive treatment program, overseen by a judge. Where an offender may be eligible and suitable for a DATO, they can be committed (referred) to the DASL from the Magistrates Court, for the purposes of seeking assessment for a DATO. If the Supreme Court declines to make a DATO, it can remit (return) the proceedings back to the Magistrates Court if the offence for which the offender is to be sentenced could have been dealt with summarily by the Magistrates Court (s 80U).

To be eligible to participate in the DASL and be subject to a DATO, an offender must:

• be over 18 and live in the ACT
• plead guilty to an offence that is not a serious violence or sexual offence (s 12A(1)(a))
• be sentenced to a prison term of between one and four years (s 12A(1)(b))
• be dependent on alcohol or a controlled drug (s 12A(2)(a)(i))
• be sentenced for an offence in circumstances where the alcohol or drug dependency substantially contributed to the commission of the offence (s 12A(2)(a)(i))
• give informed consent to the order being made (s 12A(2)(c))

If these conditions are met and the Court considers that an offender’s participation in the DASL is appropriate, having regard to relevant sentencing considerations, any concerns of a victim about their safety or welfare and the objectives of making at DATO under s 80O, then the Court may fully suspend the sentence of imprisonment on the condition that the offender agrees to complete a treatment program (12A(2)).

Under s 80O, the objects of a DATO are to:

• facilitate rehabilitation
• reduce dependency on alcohol or a controlled drug
• reduce associated health risks
• assist an offender’s integration into the community and
• promote community safety by reducing the level of criminal activity cause by alcohol and controlled drug dependence Information in relation to the DASL, including a short video, can be found here.

A DATO must contain a custodial part (s 80V(d)(i) and a treatment and supervision part (s 80V(d)(ii)). The custodial part is a sentence of at least one year but not more than four years that is fully suspended (s 80W). The treatment and supervision part includes ‘core conditions’ and ‘treatment program conditions’ (s 80X). The length of the treatment and supervision part of the order is determined by the Court, but most not end later than the custodial part (s 80X).

Core conditions relate to reoffending, disclosure, reporting, residence, visitation by the treatment team, appearance in court and compliance with directions (s 80Y). Treatment program conditions require the offender to complete a program of treatment and comply with conditions imposed by the Court, which may include conditions relating to detoxification, counselling and other treatment, attending meetings, participating in education or employment programs, submitting to alcohol and drug testing, wearing or installing an alcohol or drug detection usage device and living at a stated place (s 80Z).

If a treatment and supervision part of an order ends before the end of the sentence of imprisonment, then the Court must make a good behavior order for the remaining period (s 80ZA)(see above).

If an offender breaches a treatment order (other than by committing a further offence), they may be warned or sanctioned, the order may be amended or further conditions imposed and/or the custodial part of the suspended sentence of imprisonment may be imposed for between 3 and 14 days. The Court may also cancel the treatment order and impose the custodial part of the suspended sentence in full or in part or resentence the offender (s 80ZB). The ‘Behavioural Contract’, which applies to participants in the DASL sets out sanctions for breaches, as well as incentives for good behaviour, can be found here.

If an offender who is subject to a DATO commits a further offence punishable by imprisonment in the ACT or elsewhere then (s80ZD(1)):

• where no sentence of imprisonment is imposed for the further offence, the court may make no order, warn the offender, amend or cancel the order imposing the suspended sentence or resentence the offender (s80ZD(2)) or
• where a sentence of imprisonment is imposed for the further offence, the court must impose the suspended sentence (s80ZD(3)).

If the Court orders the imposition of the sentence for a further offence, it must order that the offender serve all or part of the sentence by full-time detention (s 80ZD(4)(a)) and may reduce the sentence to be served to take account of the extent to which the offender complied with the DATO (s 80ZD(4)(b)).