In New South Wales and a number of other jurisdictions, sentences of imprisonment for some matters can be served in the community by way of an intensive correction order (ICO). An ICO is a sentencing option available to the court that is an alternative to a sentence of full-time imprisonment.
Although an ICO is served in the community, it is still considered a form of custodial sentence. The rules and procedures for setting ICOs are set out in the Crimes (Sentencing Procedure) Act 1999 (NSW).
Preliminary ICO steps
The court must follow a three-stage process before directing a term of imprisonment can be served by way of an ICO.
- The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate (Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1).
- If a sentence of imprisonment is appropriate, the court is to determine the length of the sentence without regard to whether the sentence will be served in the community or in prison.
- After setting the length of the sentence, the court must then consider whether any alternative to imprisonment, such as an ICO, should be imposed. The court will consider whether an alternative to full-time imprisonment appropriately reflects the seriousness of the offence and fulfils the purposes of punishment.
Factors the court must consider in deciding whether to make an ICO
For New South Wales offences, community safety is the court’s paramount consideration when deciding whether to make an ICO (s66(1)).
In considering community safety, the court considers whether an ICO or full-time imprisonment is more likely to address a person’s risk of re-offending (s66(2)). This requirement acknowledges that incarceration may not always achieve community safety and that it can have the opposite effect.
For Commonwealth offences, in deciding whether to make an ICO, the court must consider the factors in section 16A of the Crimes Act 1914 (Cth).
Sentence Assessment Reports
The court will generally not make an ICO unless a Sentence Assessment Report has been provided to the court by Community Corrections.
A Sentence Assessment Report advises the court about a person’s suitability to be supervised in the community under an ICO. The report can also contain advice about the suitability of additional conditions that can attach to the ICO, such as community service work and home detention.
The court can make an ICO if it is satisfied sufficient information is available to justify making the ICO without a Sentence Assessment Report (s17D(1A)). However, an ICO made in these circumstances cannot include community service work or home detention conditions (s73).
Conditions that apply to ICOs
The standard conditions that apply to all ICOs require a person must:
- not commit any offences; and
- submit to supervision by a community corrections officer (s73A).
Unless the court is satisfied there are exceptional circumstances, the court must also impose at least one additional condition (s73A(2)). Additional conditions include:
- a home detention
- electronic monitoring
- curfews
- a requirement to complete community service work (not exceeding 750 hours)
- participation in rehabilitation programs
- abstention from drugs or alcohol, or both
- non-association condition prohibiting association with particular people
- place restrictions, prohibiting a person from visiting particular places (s 73A(2)).
Restrictions on the court’s power to make an ICO
There are certain circumstances where the court cannot make an ICO.
Sentence length restrictions
- Where a person is sentenced for a single offence, if the term of imprisonment exceeds two years, the court cannot make an ICO.
- Where a person is sentenced for multiple offences, if the total sentence of imprisonment exceeds three years, the court cannot make an ICO.
ICO not available for certain offences
There are certain offences where an ICO is not available sentencing option. These include:
- Murder or manslaughter
- A broad range of sexual offences
- Terrorism offences
- Offences involving the discharge of a firearm (ss 67(1) and 67(2)).
An ICO cannot be made for domestic violence offences unless the court is satisfied the victim of the domestic violence offence, and any person living with the offender, will be adequately protected (s4B(1)).
Age of the person being sentenced
An ICO is not an available sentence option for people under 18 years old (s7(3).
Place limitation
If a person resides outside of New South Wales, or intends to reside in another State or Territory, an ICO cannot be made, unless the other State or Territory is an approved jurisdiction (s69(3)). Currently there are no approved States or Territories.
Breaches of an ICO
Community Corrections are responsible for supervising people subject to ICOs. Where a person breaches the conditions of their order, there are various of options available to Community Corrections ranging from providing a warning to referring the breach to the Parole Authority.
For serious breaches, the Parole Authority can impose additional conditions on the ICO or revoke the ICO. Where an ICO is revoked, an arrest warrant is issued, and the offender may serve the rest of their sentence in prison.
An Example of How an ICO is Made
By way of example, Person A pleads guilty to drive with high range prescribed concentration of alcohol (second offence). The offence involves a serious collision. The Court adjourns the matter for six weeks and orders a full Sentence Assessment Report. Community Corrections assess person A as suitable for supervision, and suitable for community service work.
The Sentence Assessment Report is provided to the Court. Taking all the circumstances into account, the Magistrate considers that no penalty other than imprisonment is appropriate. A sentence of length of 18 months is set. The Magistrate considers whether the sentence of imprisonment should be served in the community by way of ICO. The Magistrate considers community safety and reducing Person A’s risk of re-offending is most appropriately addressed by making an ICO.
Person A is sentenced to a term of imprisonment for 18 months to be served in the community by way of an ICO. The ICO is subject to the standard conditions plus an additional condition requiring person A to complete 150 hours of community service work.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
