Community service orders

Statutory provisions which govern community service orders (CSOs) are found in Pt 7 Crimes (Sentencing Procedure) Act 1999, Pt 5 Crimes (Sentencing Procedure) Regulation 2017 and Pt 5 Crimes (Administration of Sentences) Act 1999. See generally R Caruana, “Administering community service orders” (2014) 26(7) JOB 55.

A CSO is an order made pursuant to the Crimes (Sentencing Procedure) Act requiring the offender to carry out community service work. Subsections 8(1) and (2) Crimes (Sentencing Procedure) Act provide:

The opening words of s 8(1) Crimes (Sentencing Procedure) Act — “[i]nstead of imposing a sentence of imprisonment … a court may make a community service order” — do not confine the availability of a community service order to cases which would otherwise result in a sentence of imprisonment: R v El Masri [2005] NSWCCA 167 at [32]. A CSO is an important sentencing alternative for the courts. Apart from the statutory provisions restricting the availability of CSOs, the use of CSOs remains available as a non-custodial alternative: R v El Masri at [32]–[33].

A CSO is not to be equated with alternative forms of imprisonment (such as intensive correction orders, home detention and suspended sentences), however, a CSO may only be imposed for offences which are punishable by imprisonment. An exception to that rule is the offence of offensive language under s 4A Summary Offences Act 1988: see s 4A(3). Another exception is s 58(1) Fines Act 1996. It provides that if civil enforcement action for a fine imposed by a court is not successful, “a community service order is served on the fine defaulter”. Part 4 Div 5 (ss 78–86) Fines Act sets out various provisions which govern that scenario.

Section 8 is subject to the provisions of Pt 7 of the Act: s 8(4). However, it does not apply to an offender to whom the Children (Community Service Orders) Act 1987 applies: s 8(3). The making of children’s CSO is governed by s 5 Children (Community Service Orders) Act 1987.

“Community service work” is defined in s 3 Crimes (Administration of Sentences) Act as “any service or activity approved by the Minister, and includes participation in personal development, educational or other programs”. This may include the removal of graffiti and the restoration of the appearance of some things in consequence upon the removal of graffiti: s 91 Crimes (Sentencing Procedure) Act.

Maximum hours of community service work

As noted above, the maximum number of hours of community service that a court is empowered to impose for any one offence is 500 hours or the number of hours limited by the regulations: s 8(2) Crimes (Sentencing Procedure) Act.

Clause 22 Crimes (Sentencing Procedure) Regulation 2017 limits the number of hours of community service work that may be imposed depending on the maximum term of imprisonment available for the offence. It provides the following limits to the duration of a CSO:

(a) 100 hours: where the maximum term of imprisonment does not exceed 6 months

(b) 200 hours: where the maximum term of imprisonment is more than 6 months but does not exceed 1 year

Where a CSO is imposed for the offence of offensive language under s 4A Summary Offences Act the maximum amount of hours is 100: s 4A(6) Summary Offences Act.

An offender must not be directed to perform more than 8 hours of community service work in any one day or participate in a development program for more than 5 hours in any one day, except by agreement between the offender and the assigned officer: cl 203 Crimes (Administration of Sentences) Regulation 2014.

Part 7 Crimes (Sentencing Procedure) Act 1999 applies when a court is considering, or has made a CSO: s 84.

Suitability of offender for CSO

Under s 86(1) Crimes (Sentencing Procedure) Act, before a CSO may be imposed, the court must be satisfied that:

(a) the offender is a suitable person for community service work

(b) it is appropriate in all of the circumstances that the offender be required to perform community service work

(c) the arrangements exist in the area in which the offender resides or intends to reside, or in another State or Territory (but only if the offender is able and willing to travel to that State or Territory), for the offender to perform community service work, and

(d) the community service work can be provided in accordance with those arrangements.

In deciding on whether to order a CSO, the court must have regard to the contents of an assessment report and such evidence from probation and parole officers as the court considers necessary: s 86(2).

Restrictions on power to make CSOs

Although a court may decline to make a CSO despite a favourable assessment report (s 86(3)), the converse is not true. The making of a CSO is contingent upon a favourable report. A court has no power to make a CSO unless, in the opinion of the person making the assessment, the offender is a suitable person for community service work: s 86(4).

A court may not, in relation to the same offence, make both a CSO and an order that provides for the offender to enter into a good behaviour bond: s 13 Crimes (Sentencing Procedure) Act referred to in R v El Masri [2005] NSWCCA 167 at [32].

The Local Court is not empowered to impose a CSO if the offender being dealt with is absent: s 25(1)(d) Crimes (Sentencing Procedure) Act.

Concurrent and consecutive orders

Concurrent or cumulative CSOs may be imposed as long as the total number of hours does not exceed 500: s 87 Crimes (Sentencing Procedure) Act. While s 90(1) provides that any payment of money, whether in the nature of a fine, compensation or otherwise, may not be made a condition of a CSO, it does not provide that additional orders such as fines, compensation, forfeiture or restitution may not be made in addition to a CSO.

[4-420] CSO conditions

The standard conditions set out in the regulations apply to the CSO: s 108(a) Crimes (Administration of Sentences) Act 1999. In addition, a sentencer can specify conditions to be complied with during the currency of the CSO: s 90 Crimes (Sentencing Procedure) Act 1999 and s 108(b) Crimes (Administration of Sentences) Act. The standard conditions set out under cl 201 Crimes (Administration of Sentences) Regulation 2014 provide as follows:

(1)

For the purposes of s 108(a) of the Act, the following are standard conditions of each community service order:

(a)

as soon as practicable after the order is made, the offender must report to such local office of Corrective Services NSW as advised by the Commissioner,

(b)

the offender must not report for, or perform, community service work while under the influence of drugs or alcohol,

(c)

the offender must participate in any activities connected with the administration of the order in which the offender is directed by the assigned officer or supervisor to participate,

(d)

the offender must perform community service work in accordance with the directions of, and to the standard specified by, his or her assigned officer or supervisor,

(e)

the offender must give his or her assigned officer written notice of the reasons for any failure by the offender to report to a work site or attendance site in accordance with his or her obligations,

(f)

the offender must submit to a medical examination by a medical practitioner nominated by his or her assigned officer if at any time the assigned officer so directs,

(g)

the offender must receive visits at the offender’s home within reasonable hours by the assigned officer or supervisor for any purpose connected with the administration of the order,

(h)

the offender must comply with the standards of dress, cleanliness and conduct that the assigned officer or supervisor may from time to time determine,

(i)

the offender must keep in good order and condition the clothing and equipment issued to the offender for the purpose of performing community service work,

(j)

the offender must observe the standards of safety with respect to his or her performance of community service work that the assigned officer or supervisor may from time to time determine,

(k)

the offender must sign an attendance register on arrival at and on departure from any work site or attendance site,

(l)

the offender must not damage or deface property that is on or forms part of a work site or attendance site, otherwise than in the course of performing community service work in accordance with the directions of the assigned officer or supervisor,

(m)

the offender must not have possession of or consume any alcohol or other intoxicating substance while at a work site or attendance site,

(n)

the offender must comply with any reasonable direction given orally or in writing to the offender by the assigned officer or supervisor,

(o)

if the offender is directed to do anything that he or she is incapable of doing, the offender must immediately advise the assigned officer or supervisor of that fact.

(2)

If illness or injury is the reason for an offender’s failure to report, as referred to in subclause (1)(e), the written notice referred to in that paragraph must be accompanied by a certificate, issued by a medical practitioner, stating the nature of the illness or injury and indicating that its nature or extent justifies the offender’s failure to report.

Note also that, where a CSO requires the offender to attend an attendance centre and participate in a development program, the court may order that the person undergo testing or assessment for alcohol or drug use: s 90(2)(b) Crimes (Sentencing Procedure) Act.

[4-430] Duration of CSO

Section 107(1) Crimes (Administration of Sentences) Act 1999 makes provision for what is described as the “relevant maximum period” in relation to a community service order. The expression means:

(a): 12 months from the date on which the order was made, if the required number of hours under the order (disregarding any increase under section 113) is less than 300, or
(b): 18 months from the date on which the order was made, if the required number of hours under the order (disregarding any increase under section 113) is 300 or more, or, if that period is extended under section 114, the period as so extended.

Unless earlier revoked under s 110 Crimes (Administration of Sentences) Act, a CSO remains in force until whichever of the following events takes place first:

(a): the person performs the work, or
(b): the relevant maximum period expires, or
(c): in the case of a community service order that, under the Act under which it is made, can be satisfied by the payment of a fine, until the order is satisfied in accordance with that Act.

Extension of period of CSO

Pursuant to s 114 Crimes (Administration of Sentences) Act, an offender (or an offender’s assigned officer) may apply to the Local Court for an extension of the period during which the order will be in force. This must be done on the ground that it would be in the interests of justice to extend that period, having regard to the circumstances arising since the CSO was originally made.

Where the officer makes the application and the offender fails to appear, a summons and, thereafter, a warrant, may issue: s 116 Crimes (Administration of Sentences) Act. In certain circumstances, the Commissioner of Corrective Services may increase the hours of community service work: s 113 Crimes (Administration of Sentences) Act.

[4-435] Explanation to offender

Section 92 Crimes (Sentencing Procedure) Act 1999 provides that when the court imposes a CSO it must ensure that all reasonable steps are taken to explain to the offender (in language that the offender can readily understand):

(a): the offender’s obligations under the community service order, and
(b): the consequences that may follow if the offender fails to comply with those obligations.

[4-440] Revocation and breach of CSO

Interests of justice

An application to revoke a CSO may be made by the offender, or the offender’s assigned officer, on the ground that it would be in the interests of justice to revoke the CSO, having regard to the circumstances arising since the CSO was originally made: s 115(2)(b) Crimes (Administration of Sentences) Act 1999.

Breach of CSO and consequential orders

An application to revoke a CSO may be also be made by the offender’s assigned officer on the ground that the offender has failed, without reasonable excuse, to comply with the obligations under the CSO: s 115(2)(a) Crimes (Administration of Sentences) Act.

The applications for revocation under these subsections may be made to the sentencing court, a court of like jurisdiction, or a court superior to that of the sentencing court; and must be made no later than one month after the expiry of the relevant maximum period for the order: ss 115(1), (2A).

Under s 115(6), an offender is taken to have failed to comply with his or her obligations under a CSO where they have failed to perform the required number of hours of community service work within the relevant maximum period; and such a failure under one CSO is taken to constitute failure under all other CSOs in force at that time.

Where an application is made and the offender fails to appear, a summons, and thereafter a warrant, may issue: s 116 Crimes (Administration of Sentences) Act.

Section 115(3) requires the court to first determine whether the application for revocation has been established: DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 at [14]. If the grounds are established, the court, in its discretion, “may revoke the offender’s community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made” [emphasis added]: s 115(3). The two decisions — revocation and whether a consequential order should be made — should not be conflated. If the CSO is revoked the court then determines in the exercise of its discretion whether to make any consequential order. A number of relevant facts and circumstances can be taken into account in exercising that discretion including whether the circumstance giving rise to revocation is, or is not, the fault of the offender: DPP (NSW) v Caita-Mandra at [15] and the cases cited therein. Section 115(3) makes it clear that the court has a discretion to re-sentence the offender and a court may exercise that discretion in a manner favourable to the offender provided adequate reasons are given: DPP v Brasher [2016] NSWSC 1707 at [25] (see further discussion below).

The offender is dealt with for the original offence, not for failing to carry out the CSO: Bonsu v R [2009] NSWCCA 316 at [9]. It is wrong to convert the unperformed hours of a CSO into a period of full-time custody (by applying some mathematical formula) because there is no presumption of imprisonment for the breach of a CSO: Bonsu v R at [12], [14]. The proper course is to re-exercise the sentencing discretion in respect of the offence committed, while taking into account that community service is no longer available: Bonsu v R at [14].

The court must take into account any time for which the offender was held in custody for the offence: s 24(a) Crimes (Sentencing Procedure) Act. Further, when sentencing for breach of obligations under the CSO, the sentencer must take into account the fact that the offender was subject to such an order and anything done in compliance with the obligations under the order: s 24(b).

An offender on whom a penalty is imposed as a consequence of the revocation of a CSO has the same rights of appeal as if the penalty had been imposed when the offender was convicted of the offence to which the penalty relates: s 115(4) Crimes (Administration of Sentences) Act.

Breaches should be regarded seriously

In R v Cicekdag (2004) 150 A Crim R 299 (a case in which the offender committed a similar offence when subject to a CSO), Hoeben J at [52], Grove and James JJ agreeing, likened a CSO to conditional freedom by way of bail, recognizance or parole, a breach of which was akin to, citing Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15], a “betrayal of the opportunity for rehabilitation”. Justice Hoeben added at [53] that:

If such a circumstance is not to be regarded as an aggravating feature, it is certainly to be regarded as a strong indication that further attempts at rehabilitation by way of conditional liberty are likely to be unsuccessful.

It has been said that it is important that breaches of non-custodial sentencing options should be dealt with promptly and regarded seriously. In R v Morris (unrep, 14/7/95, NSWCCA), Kirby ACJ, Badgery-Parker and Bruce JJ said that if leniency is extended inappropriately:

there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided. It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest.

The above passage was cited with approval in DPP v Brasher [2016] NSWSC 1707 at [29]. In that case the court held a magistrate erred in law in failing to make any order consequential upon the revocation of the offender’s CSO in accordance with s 115(3). The decision of the magistrate not to impose a penalty for a mid-range Prescribed Concentration of Alcohol (PCA) offence following the revocation was held to be so unreasonable as to amount to an error of law: DPP v Brasher at [29]. The fact that the offender had received a $500 fine in lieu of a s 9 bond in the same proceedings was an irrelevant consideration: DPP v Brasher at [30].

[4-460] Federal offences

A CSO may be made in respect of a person convicted of a federal offence: s 20AB(1) Crimes Act 1914 (Cth) (Additional sentencing alternatives). Certain additional consequential orders are able to be made when a court imposes a CSO on a federal offender and these are enumerated in s 20AB(4).

Breach provisions are subject to s 20AC. Unlike breaches for State offences, breach proceedings can be commenced against an offender who has committed federal offences “before or after the expiration” of the order: s 20AC(2). There is no one month limitation.

See: Corrective Services – Intensive Correction Orders – an alternative to a custodial sentence - Anderson Boemi Lawyers, Dural NSW