Intensive Corrections Orders

An Intensive Correction Order (ICO) is a sentence of imprisonment served in the community. Where a sentencing court is determining whether to impose an Intensive Correction Order on an offender, the court must take into account a number of sentencing considerations.

A court can only impose an ICO if the court concludes that the only appropriate penalty is a sentence of ‘imprisonment’. However, a sentence of imprisonment does not necessarily mean a full-time jail sentence and can also include an ICO.

If the court is considering an ICO as an alternative to a full-time jail sentence, it will usually refer the offender to Corrective Services for assessment to help determine whether an ICO is available. Corrective Services may find that the offender is not suitable if they are unable to reside at a specific address or have a drug or alcohol problem.

Even where the offender is deemed suitable the court will not necessarily impose an ICO, and can opt for a different sentence of imprisonment, such as full-time custody.

When can an ICO be imposed?

Part 5 of the Crimes (Sentencing Procedure) Act 1999 outlines the procedures for ICOs including when they can be imposed and for what offences. ICOs will only be available if the duration of the term of imprisonment imposed is two years or less.

ICOs may also be available in respect of an aggregate sentence of imprisonment, but only if the duration does not exceed three years. An aggregate sentence of imprisonment is a “combined” sentence of imprisonment for two or more offences. Alternatively, a person with two or more sentences can be sentenced to two or more ICOs.

Offences for which ICOs are not available

Section 67 of the Act outlines that an ICO must not be imposed for certain offences. An ICO must not be made in respect of a sentence of imprisonment for any of the following offences:

• murder or manslaughter;
• a prescribed sexual offence;
• 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;
• an offence relating to a contravention of a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016;
• an offence relating to contravention of a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002;
• an offence involving the discharge of a firearm;
• an offence that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)-(f); and
• an offence of attempting, or of conspiracy or incitement, to commit an offence referred to above.

What conditions are attached to ICOs?

An ICO must include the “standard” conditions as well as at least one additional condition. Section 72 of the Crimes (Sentencing Procedure) Act 1999 contains the conditions that an ICO may be subject to. These include:

• Standard conditions imposed by the sentencing court that the offender must not commit any further offences and must be subject to supervision by community corrections.
• Any additional conditions imposed by the sentencing court under section 73A or 73B of the Act.
• Any conditions imposed by the Parole Authority under section 81A or 164 of the Act.

As outlined above, section 73A (1) of the Act outlines that at least one additional condition must be imposed by the sentencing court. If the sentencing court is considering imposing the additional condition of home detention or community service work, the court must obtain a sentence assessment report and that report must conclude that the offender is suitable to be subject to such a condition.

The additional conditions of an ICO that are available to be imposed are the following (as directed by the sentencing court):

• a home detention condition;
• an electronic monitoring condition;
• a curfew condition imposing a specified curfew;
• a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours);
• a rehabilitation or treatment condition requiring the offender participate in a rehabilitation program or to receive treatment;
• an abstention condition requiring abstention from alcohol or drugs or both;
• a non-association condition prohibiting association with particular persons; and
• a place restriction condition prohibiting the frequenting of or visits to a particular place or area.

What happens if an ICO is breached?

Breaches of ICOs are dealt with by the Commissioner of Community Corrections and the Parole Authority. The offender will not be taken back before the court to determine whether they have breached the ICO or whether revocation or some other action should take place. Such determinations will be made by the Commissioner and, if necessary, the Parole Authority.

If an offender breaches an ICO, the Commissioner may:

• impose a formal warning;
• impose a sanction in the form of a more stringent application of the conditions; or
• refer breaches to the Parole Authority, which can revoke the order.

If the Parole Authority revokes the offender’s ICO, they will issue a warrant for their arrest, so that the offender can be taken into custody to serve the remainder of the ICO in full-time custody, unless parole is granted at an earlier date.

The Parole Authority will backdate the breach of the ICO to the date the breach happened. This is important, as if the breach happened some time ago, the offender may not get ‘credit’ for any time they were subject to the ICO after the breach. This can mean that the offender ends up spending longer in custody.

It is important to get legal advice in relation to any potential breaches of an ICO, as the consequences can be severe.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.