If you or someone you care about is facing sentencing in a NSW criminal court, understanding the types of orders available can make a real difference to how you prepare. Courts have a range of options beyond full-time imprisonment, and knowing what each order involves, what conditions apply, and what happens if those conditions are breached gives you the foundation to make informed decisions with your legal team.
This guide covers three of the most significant non-custodial and alternative court orders in NSW: Intensive Correction Orders, Conditional Release Orders, and Forfeiture Orders.
If you have been charged and are preparing for sentencing, our guide to pleading guilty in NSW provides broader context on the sentencing process.
Intensive Correction Orders (ICO)
An Intensive Correction Order (ICO) is a sentence of imprisonment served in the community rather than in full-time custody. It is governed by the Crimes (Sentencing Procedure) Act 1999 (NSW) and represents one of the most significant sentencing alternatives available to NSW courts.
Corrective Services NSW describes an ICO as “a custodial sentence of up to two years that the court decides can be served in the community.”
Who is eligible?
An ICO is available where the court imposes a sentence of imprisonment of up to two years. Before making an ICO, the court must be satisfied that the risk an offender poses to the safety of the community can be adequately managed while they serve their sentence in the community.
ICOs are not available for all offences. Certain serious offences are excluded under the Crimes (Sentencing Procedure) Act 1999 (NSW), including:
- Murder or manslaughter
- Sexual assault and child sexual offences
- Firearm discharge offences
- Terrorism offences
- Breaches of serious crime prevention orders
- Breaches of public safety orders
In domestic violence cases, the court may only make an ICO if it is satisfied that the victim and any likely co-residents can be adequately protected while the offender serves the sentence in the community.
Mandatory conditions
Every ICO requires supervision by a Community Corrections Officer. This distinguishes ICOs from suspended sentences, which did not require active supervision.
Optional conditions
Beyond mandatory supervision, the court may impose any combination of the following additional conditions:
- Home detention (curfew requirements)
- Electronic monitoring
- Community service work (up to a maximum of 750 hours)
- Restrictions on alcohol or drug use, including mandatory testing
- Prohibitions on association with specified persons
- Restrictions on attending specified places
- Participation in rehabilitation, treatment, or behavioural programs
What happens if conditions are breached?
Community Corrections Officers have authority to manage minor breaches directly. Serious breaches are referred to the State Parole Authority, which has the power to revoke the ICO and order that the remaining sentence be served in full-time custody.
Conditional Release Orders (CRO)
A Conditional Release Order (CRO) is a sentencing option aimed at first-time and less serious offenders who are unlikely to present a risk to the community. CROs replaced good behaviour bonds in NSW on 24 September 2018 and are available under the Crimes (Sentencing Procedure) Act 1999 (NSW).
A CRO is typically made where the court finds a person guilty of an offence but considers that a more severe penalty is not appropriate in the circumstances. Courts have flexibility in how they apply CROs, including whether or not to record a conviction. For first-time offenders, a CRO is often one of the most achievable sentencing outcomes.
Duration
A CRO can be made for a period of up to two years.
Conviction recording
Courts have discretion over whether to record a conviction when imposing a CRO. Where the court imposes a CRO without recording a conviction, no conviction appears on the person’s criminal record. This can be significant for employment, professional licensing, travel, and visa purposes. Whether a conviction is recorded depends on the individual circumstances of the offence, the offender’s history, and the quality of submissions made on their behalf.
Conditions
The court may add any of the following conditions to a CRO:
- Supervision by a Community Corrections Officer
- Drug and alcohol abstention requirements, including testing
- Participation in rehabilitation or treatment programs
- Restrictions on association with specified persons
- Geographic restrictions on where the person may go
Conditions are tailored to the individual’s circumstances and the nature of the offence.
What happens if conditions are breached?
Committing a further offence while subject to a CRO, or breaching the conditions of the order, can result in the person being returned to court. At that point, the court may resentence the person for the original offence with a broader range of penalties available. Where no conviction was initially recorded, the court may record one at resentencing. The ability to challenge the outcome at this stage is significantly strengthened by having experienced legal representation.
For information on contesting outcomes or seeking a review after sentencing, see our page on criminal appeals in NSW.
Forfeiture Orders
A Forfeiture Order authorises the state or Commonwealth to seize property connected to criminal activity. Forfeiture can occur even without a criminal conviction in some circumstances, which makes it one of the most significant collateral consequences of a criminal investigation.
NSW: Criminal Assets Recovery Act 1990
In NSW, the primary legislation governing criminal assets forfeiture is the Criminal Assets Recovery Act 1990 (NSW). The NSW Crime Commission has power to apply to the NSW Supreme Court for a range of orders under this Act.
Restraining Orders: Freeze assets pending the outcome of criminal proceedings or a civil assets recovery application. A restraining order can be obtained quickly and does not require a criminal conviction. Assets subject to a restraining order cannot be sold, transferred, or disposed of while the order is in force.
Assets Forfeiture Orders: Permanently vest property in the State if it is suspected of being proceeds of crime or an instrument of crime. These orders are obtained through civil proceedings and can run parallel to, or independently of, criminal proceedings.
Proceeds Assessment Orders: Require a person to pay an amount equivalent to the proceeds they derived from serious crime-related activity, even if those specific assets can no longer be identified or have already been spent.
Unexplained Wealth Orders: Compel a person to demonstrate that their wealth was lawfully acquired, where the court has reasonable grounds to suspect it was derived from serious crime-related activity.
Because these orders are pursued as civil proceedings, the civil standard of proof (balance of probabilities) applies rather than the criminal standard of proof beyond reasonable doubt.
Federal: Proceeds of Crime Act 2002
For matters involving Commonwealth offences, the Proceeds of Crime Act 2002 (Cth) applies. The Australian Federal Police and Commonwealth Director of Public Prosecutions can apply for equivalent orders at the federal level, including restraining orders, forfeiture orders, pecuniary penalty orders, and unexplained wealth orders.
The federal regime similarly allows assets to be restrained and forfeited without a criminal conviction in some circumstances, particularly under the unexplained wealth provisions.
What property can be seized?
Property subject to forfeiture or restraint can include cash, real estate, vehicles, bank accounts, shares, cryptocurrency, jewellery, and other financial instruments. The connection to criminal activity can be broadly construed, and assets held by third parties may also be affected if they were acquired using the proceeds of crime.
Forfeiture proceedings commonly arise in matters involving drug supply and trafficking, fraud, white-collar crime, and money laundering.
Challenging a forfeiture or restraining order
There are legitimate grounds to challenge forfeiture and restraining orders, including:
- Demonstrating that the property was lawfully acquired
- Showing there is no sufficient connection between the property and the alleged criminal activity
- Establishing that a third party has a legitimate interest in the property
Time limits for challenging these orders are strict and the process is procedurally complex. The earlier legal advice is sought, the better positioned you are to protect your assets.
How O’Brien Criminal and Civil Solicitors Can Help
If you are facing sentencing in a NSW criminal court, understanding which orders might apply to your circumstances requires careful legal analysis of the offence, your background, and the submissions that can be made on your behalf.
Our criminal defence lawyers have extensive experience in sentencing matters across NSW, including making submissions to avoid a conviction being recorded, arguing for alternative orders including ICOs and CROs, and challenging assets forfeiture proceedings brought by the NSW Crime Commission or the Commonwealth Director of Public Prosecutions.
If you have already been sentenced and believe the outcome was excessive or wrong, our team can advise on the prospects of a criminal appeal.
To enquire online or call (02) 9261 4281 for a free, no-obligation consultation.
