There are sometimes compelling reasons why a person sentenced for a criminal offence in one state of Australia may seek to transfer to another jurisdiction, a move which may have the effect of increasing their chances of completing their sentence, enhancing the possibility of rehabilitation and reducing the chance of recidivism. Among the strongest reasons are proximity to family and community support, to escape domestic violence, or to increase employment or study opportunities.
This article looks at the situation in which a person is convicted and sentenced in New South Wales but makes a request to serve their sentence in another jurisdiction such as Queensland. In this situation alternative community-based sentencing options do exist, including community correction orders (CCOs) and conditional release orders (CROs).
Queensland belatedly joined other Australian states in 2020 when it introduced legislation – the Community Based Sentences (Interstate Transfer) Act 2020 – to transfer offenders’ sentences from another state to Queensland, based on model national legislation. A transfer of a sentence is generally managed by the corrective services authorities of the participating states.
It should be noted that an offender who is sentenced in another state such as New South Wales, but then absconds to Queensland before completing their sentence can be arrested in Queensland and taken before a court where a Magistrate may order the offender returned to the custody of the state where the sentencing order was made.
How do transfer of sentence schemes work?
Under the scheme in New South Wales, for example, an offender with a community-based sentence in a participating jurisdiction is able to request the transfer of his or her sentence to a new jurisdiction on a voluntary basis, subject to certain requirements. Should the request for transfer be agreeable, the offender’s sentence is registered in Queensland, for example, and then is managed in that state as if that jurisdiction had imposed the sentence, except for the purposes of appeal or review, which remains the responsibility of the originating jurisdiction.
Community Corrections Orders: A New South Wales court imposes a CCO to punish offenders for crimes that do not warrant either imprisonment or the stricter community-based sentence of an Intensive Corrections Order (ICO) but are too serious to be dealt with by a fine or an associated lower-level penalty. CCOs can be imposed for a period of up to three years. In New South Wales, CCOs replaced what were known as community service orders and good behaviour bonds made upon conviction.
Offenders are supervised and supported while serving their sentences in the community. CCOs often include mandatory programs and services as part of a case management plan, including, but not limited to drug and alcohol rehabilitation, and anger management. An offender serving a CCO is assisted to develop skills designed to help them live a law-abiding lifestyle. A Community Corrections Officer will generally have regular contact with the offender and significant people in their life, as well as conduct other checks to monitor compliance with conditions of the court order.
The Queensland legislation clarifies that a CCO made in New South Wales under the Crimes (Sentencing Procedure) Act 1999 (NSW) corresponds to a probation order made in Queensland under part 5 of the Penalties and Sentences Act 1992.
Conditions of probation orders in Queensland
It’s helpful to understand what conditions are imposed on a person living in Queensland under a probation order, if they have transferred from New South Wales while serving a CCO. Mandatory conditions of probation orders in Queensland require an offender:
- not to commit another offence whilst on probation;
- report to an authorised corrective services officer at the place and time directed;
- receive visits from an authorised corrective services officer as required;
- participate in any programs or counselling as directed by the sentencing Magistrate;
- notify an authorised corrective services officer of any change to the offender’s address or employment within two business days after the change occurs;
- must not leave Queensland without the permission from an authorised corrective services officer; and
- comply with each reasonable direction of an authorised corrective services officer.
Additional conditions may also be imposed requiring an offender to submit to medical, psychiatric or psychological treatment, and comply with any other conditions considered necessary to ensure the sentence is served.
Failure of an offender to comply with the conditions of a probation order/CCO can result in a charge of breaching the order and the possibility of being re-sentenced for the original offence.
Discuss your case with expert criminal lawyers
Transfer of a sentence from one jurisdiction to another in Australia can be a challenging process, even if the offender has strong reasons for making the request. The guidance of legal professionals with wide experience in criminal offences and sentencing is vital to ensure your case is put in the best way possible. Contact our expert team at Hannay Lawyers we provide services in Brisbane, Gold Coast and Sydney, if you have any questions or concerns about the material discussed in this post.