Intensive Correction Orders (known as ICOs) are a custodial form of sentence. Section 7(1) of the provides that where a Court has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community.

 

On 24 September 2018, the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 restructured and amended the provisions relating to ICOs. The changes made allow offenders to access intensive supervision as an alternative to a short prison sentence and “help courts ensure that offenders address their offending behaviour and are held accountable”: the Hon M Speakman SC, Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 11 October 2017, p 2.

 

Part 5 of the Act governs how ICOs are to be made by Courts, giving particular weight to community safety is the paramount consideration. The new provisions in relation to ICOs were tailored around the following objectives:

• To give the court more discretion to tailor the particular conditions to be imposed on the ICO to the individual offender.

• Require that an ICO be subject to two standard conditions and at least one additional condition (which may include home detention)

• Further restrict the offences for which an ICO can be made.

 

When is an ICO not available?

ICOs are not available for particular types of offences. Section 67(1) provides that an ICO must not be made in respect of a sentence of imprisonment for:

1. murder or manslaughter

2. a prescribed sexual offence

3. a terrorism offence within the meaning of the Crimes Act 1914 (Cth) or under s 310J Crimes Act 1900

4. an offence relating to a contravention of a serious crime prevention order under s 8 Crimes (Serious Crime Prevention Orders) Act 2016

5. an offence relating to a contravention of a public safety order under s 87ZA Law Enforcement (Powers and Responsibilities) Act 2002

6. an offence involving the discharge of a firearm

7. an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)–(f)

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

 

• ICO must not be made in respect of a sentence of imprisonment for a domestic violence offence, or an aggregate sentence of imprisonment where any one or more of the offences is a domestic violence offence, unless the court is satisfied the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected: s 4B(1). If the court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes the offender will reside with the victim of the domestic violence offence: s 4B(2).

 

An ICO may not be made with respect to offenders under the age of 18 years: s 7(3).

 

An ICO must not be made in respect of a single offence if the duration of the term of imprisonment for the offence exceeds 2 years: s 68(1). An ICO may be made in respect of an aggregate sentence of imprisonment, however the aggregate term must not exceed 3 years: s 68(2). Two or more ICOs may be made for two or more offences but the duration of any individual term of imprisonment must not exceed 2 years, and the duration of the term of imprisonment for all offences must not exceed 3 years: s 68(3); see R v Fangaloka [2019] NSWCCA 173 at [51].

 

Where a sentence for a single offence exceeds 2 years and, therefore, an ICO cannot be imposed, there is no requirement to consider s 66 of the Act: Cross v R [2019] NSWCCA 280 at [26].

 

The court may not make an ICO in respect of an offender who resides, or intends to reside, in another State or Territory, unless the regulations declare that State or Territory to be an approved jurisdiction: s 69(3). No State or Territory is currently declared to be an approved jurisdiction.

 

Key features to remember about ICOs include:

• The court must not make an ICO unless it has obtained an assessment report in relation to the offender, but the court is not bound by that report: ss 17D, 69(2). However, the court is not required to obtain a report if satisfied it has sufficient information available to justify making the ICO without one: s 17D(1A).

• An ICO must not be made for a single offence if the term of imprisonment exceeds 2 years. If two or more ICOs are made, the term of the aggregate or effective sentence of imprisonment must not exceed 3 years: s 68.

• ICOs are not available for certain offences, including manslaughter, murder, prescribed sexual offences, certain terrorism offences, breaches of serious crime prevention and public safety orders, and offences involving the discharge of a firearm: s 67.

• An ICO must not be made for offenders under the age of 18 years: s 7(3).

• An ICO can only be made for a domestic violence offence where the court is satisfied the victim of the offence and any person with whom the offender is likely to reside, will be adequately protected: s 4B.

• In determining whether to make an ICO, community safety is the paramount consideration. When considering community safety, the court is to assess whether an ICO or full-time detention is more likely to address the offender’s risk of reoffending: s 66.

• When making an ICO, the court is required to impose the standard conditions and at least one additional condition (unless there are exceptional circumstances) and may impose further conditions where necessary: ss 73, 73A, 73B. Home detention is available as an additional condition of an ICO: s 73A(2).

• The court must not make an ICO or impose a home detention or community service work condition unless it has obtained a relevant assessment report in relation to the offender: ss 73A(3), 17D(2), (4).

• A court cannot request an assessment report for a home detention condition until it has imposed a sentence of imprisonment: s 17D(3).

 

• The Parole Authority may, in certain circumstances, impose, vary or revoke any conditions of an ICO, including those imposed by the court: Crimes (Administration of Sentences) Act 1999, s 81A.