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  • Writer's pictureGeoff Harrison

Intensive Correction Orders (I.C.Os)

Updated: Nov 5, 2023

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Criminal Barrister, Criminal Lawyer, ICO, Intensive Correction Order, Intensive Corrections Order

Published by Geoff Harrison | 25 August 2023


A court must not sentence an offender to imprisonment unless the court has considered all other possible alternatives: s5 Crimes (Sentencing Procedure) Act 1999 ('the Act'). An offender sentenced to an ICO is a custodial sentence however, a sentence that is served within the community: see s7 of the Act. Hence, a breach of an ICO is not heard before the sentencing court but before the NSW State Parole Authority (SPA): ss164, 164A, 165 Crimes (Administration of Sentences) Act 1999. The sentencing task for an ICO is a three-step approach as per Chan v R:

  1. the court must be satisfied that no penalty other than imprisonment is appropriate; if so

  2. determine the length of the sentence;

  3. if the sentence imposed is less than two years for a single offence or three years for an aggregate sentence, the court must consider whether an ICO should be imposed.

In Zheng v R, Gleeson JA (Hamill and Ierace JJ agreeing) at [281]–[286] provides a clear statement of the relevant principles from Stanley v DPP in the consideration of community safety pursuant to s 66:


1. [T]he power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: Stanley v DPP at [72], [75].


2. [Section] 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: Stanley v DPP at [74].


3. [T]he nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: Stanley v DPP at [75].


4. [T]he consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending: Stanley v DPP at [74].


5. [W]hile community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: Stanley v DPP at [76]. (From the Bench Book at 3-632).


As mentioned community safety is the paramount consideration for the court in determining whether to allow an offender to serve the sentence by way of an ICO or not: see Stanley v DPP (NSW). The introduction and purpose of ICOs was outlined in the second reading speech as quoted in Stanley at [84] and [85]:


In 2017, the statutory scheme for ICOs was substantially amended by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) ("the 2017 Act"). In his second reading speech, the New South Wales Attorney-General, Mark Speakman SC, stated that the legislation "introduce[d] new, tough and smart community sentencing options that will promote community safety by holding offenders accountable and tackling the causes of offending"[96]. The Attorney-General stated that "[w]e know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending ... We also know that community supervision is better at reducing reoffending than a short prison sentence ... With the new [ICO], offenders who would otherwise be unsuitable or unable to work will be able to access intensive supervision as an alternative to a short prison sentence"[97].


In his second reading speech for the 2017 Act, the Attorney‑General also stated [98]:


"New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending."


Apart from the Standtons: s73 of the Act, the court is to impose (unless there are exceptional circumstances) at least 1 additional condition which is generally, either a Community Service Work Condition (up to 750 hrs) or a Home Detention Condition: s74 of the Act.


There are certain offences where the court cannot impose an ICO: see 67 of the Act below and ss 4A and 4B of the Crimes (Sentencing and Procedure) Act 1999. Some the restrictions on imposing an ICO relate to Child Sexual Assault offences and Domestic Violence offences (including the Commonwealth Criminal Code 1995).


As noted in R v Fangaloka by Basten J at [67}, given the competing interests in sentencing, that the element of leniency inherent in an ICO may be inconsistent with an adequate sentence and hence, only a full-time custodial sentence is appropriate:


No doubt there will be cases in which a person otherwise likely to serve fulltime custody will obtain an ICO, because general deterrence is largely disregarded in favour of a possible reduction in the risk of reoffending by the particular offender, if not sent to gaol. On the other hand, there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment.


A summary of the significant ICO provisions from the Judicial Bench Book can be found here.



Other Sources:

Cases:


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CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 5

Penalties of imprisonment


(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.


(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including--

(a) its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).


(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.


(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.


(5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.



CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 7

Intensive correction orders


(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.


(2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.


(3) This section does not apply to an offender who is under the age of 18 years.


(4) This section is subject to the provisions of Part 5.

Note : Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.



CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 66

Community safety and other considerations


(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.


(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.


(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 67

Intensive correction order not available for certain offences


(1) An intensive correction order must not be made in respect of a sentence of imprisonment for any of the following offences--

(a) murder or manslaughter,

(b) a prescribed sexual offence,

(c) a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900 ,

(d) an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016 ,

(e) an offence relating to a contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002 ,

(f) an offence involving the discharge of a firearm,

(g) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)-(f),

(h) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraphs (a)-(g).


(2) For the purposes of this section--

"Commonwealth Criminal Code" means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.

"firearm" means a firearm as defined in the Firearms Act 1996 .

"prescribed sexual offence" means--

(a) an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900 , being--

(i) an offence the victim of which is a person under the age of 16 years, or

(ii) an offence the victim of which is a person of any age and the elements of which include sexual intercourse (as defined by section 61H of that Act), or

(b) an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 , or

(c) an offence under section 91J, 91K or 91L of the Crimes Act 1900 , being an offence the victim of which is a person under the age of 16 years, or

(d) an offence against section 50BA, 50BB, 50BC, 50BD, 50DA or 50DB of the Crimes Act 1914 of the Commonwealth, being an offence the victim of which was a person under the age of 16 years, or

(e) an offence against section 71.8, 71.12, 271.4, 271.7, 272.8 (1) or (2), 272.9 (1) or (2), 272.10 (1), 272.11 (1), 272.12 (1) or (2), 272.13 (1) or (2), 272.14 (1), 272.15 (1), 272.18 (1), 272.19 (1), 272.20 (1) or (2), 273.5, 273.6, 273.7, 471.16 (1) or (2), 471.17 (1), 471.19 (1) or (2), 471.20 (1), 471.22 (1), 471.24, 471.25, 471.26, 474.19 (1), 474.20 (1), 474.22 (1), 474.23 (1), 474.24A (1), 474.25A (1) or (2), 474.25B (1), 474.26, 474.27 (1), (2) or (3), 474.27A of the Commonwealth Criminal Code, being an offence the victim of which was a person under the age of 16 years, or

(f) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or child abuse material, or

(g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition, or

(h) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(g).


(3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 68

Intensive correction orders not available where imprisonment exceeds limits


(1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years.


(2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years.


(3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if--

(a) the duration of the term of any individual term of imprisonment exceeds 2 years, and

(b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 69

Assessment of suitability of offender for intensive correction order


(1) In deciding whether or not to make an intensive correction order, the sentencing court is to have regard to--

(a) the contents of any assessment report obtained in relation to the offender, and

(b) evidence from a community corrections officer and any other information before the court that the court considers necessary for the purpose of deciding whether to make such an order.


(2) Subject to section 73A (3), the sentencing court is not bound by the assessment report.


(3) The sentencing court may not make an intensive correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction.


65 DEFINITION


In this Part--

"assessment report" , in relation an offender, means an assessment report within the meaning of Division 4B of Part 2 made in respect of the offender.


CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 73

Standard conditions


(1) The sentencing court must at the time of sentence impose on an intensive correction order the standard conditions of an intensive correction order.


(2) The standard conditions of an intensive correction order are the following--

(a) a condition that the offender must not commit any offence,

(b) a condition that the offender must submit to supervision by a community corrections officer.

Note : Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender's obligations under a standard condition of an intensive correction order.



CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 73A

Additional conditions



(1) In addition to the standard conditions, the sentencing court must at the time of sentence impose on an intensive correction order at least 1 of the additional conditions referred to in subsection (2).


(1A) Despite subsection (1), the sentencing court is not required to impose an additional condition if the court is satisfied there are exceptional circumstances.


(1B) The sentencing court must make a record of its reasons for not imposing an additional condition. The failure of the sentencing court to do so does not invalidate the sentence.


(2) The additional conditions of an intensive correction order that are available to be imposed are the following conditions (as directed by the sentencing court)--

(a) a home detention condition,

(b) an electronic monitoring condition,

(c) a curfew condition imposing a specified curfew,

(d) a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser),

(e) a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,

(f) an abstention condition requiring abstention from alcohol or drugs or both,

(g) a non-association condition prohibiting association with particular persons,

(h) a place restriction condition prohibiting the frequenting of or visits to a particular place or area.


(3) The sentencing court must not impose a home detention condition or community service work condition on an intensive correction order unless an assessment report states that the offender is suitable to be the subject of such a condition.

Note : The provisions of section 17D (2), (3) and (4) refer specifically to assessment reports regarding home detention conditions and community service work conditions.


(4) The sentencing court may limit the period during which an additional condition imposed by it on an intensive correction order is in force.

Note : Regulations may be made under the Crimes (Administration of Sentences) Act 1999 to prescribe the offender's obligations under an additional condition of an intensive correction order.


(5) The period during which a community service work condition requiring the performance of a specified number of hours of community service work is in force must not be less than the period prescribed by the regulations in respect of the specified number of hours of community service work.


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