Intensive Correction Orders (ICOs)
In the Australian Capital Territory (ACT), an Intensive Correction Order (ICO) is a type of prison sentence served in the community.
A court can only impose an ICO if it concludes that the only appropriate penalty is a sentence of “imprisonment”. A sentence of imprisonment doesn’t necessarily mean you will go to prison; it can consist of either a suspended prison sentence, an ICO or full-time prison.
If the court is considering an ICO, it must refer you to ACT Corrective Services for assessment to help determine whether an ICO is appropriate. Not everyone is found suitable for an ICO by Corrective Services. Corrective Services may find that you are not suitable if you are unable to reside at a specific address or if you cannot complete community service work because of medical reasons. Even if you are deemed suitable, the court will not necessarily impose an ICO and can opt for a different sentence of imprisonment.
Section 11 of the Crimes (Sentencing) Act 2005 provides that if someone’s sentence of imprisonment is for not more than 2 years the court may order that the sentence be served by intensive correction in the community (an Intensive Correction Order).
The court may make an ICO if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to:
- the level of harm to the victim and the community caused by the offence; and
- whether the offender poses a risk to 1 or more people or the community; and
- the offender’s culpability for the offence having regard to all the circumstances.
An ICO must not be combined with a sentence of full-time imprisonment, a suspended sentence of imprisonment or a good behaviour order (Section 29, Crimes (Sentencing) Act).
Section 41 of the Crimes (Sentence Administration) Act 2005 states that to serve intensive correction, an offender must, during the period of the offender’s sentence, comply with:
- the core conditions of the offender’s order; and
- any additional condition of the offender’s order; and
- any non-association order or place-restriction order made by the sentencing court; and
- any requirement prescribed by regulation; and
- any other requirement under the above Act or the Corrections Management Act 2007 that applies to the offender.
A regulation may make provision in relation to electronic monitoring to monitor the offender’s compliance with a condition of the offender’s ICO.
Section 42 of the Crimes (Sentence Administration) Act sets out the core conditions for an Intensive Correction Order:
- the offender must not commit any offences, inside or outside Australia, and,
if charged with an offence, must tell Corrective Services about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge;
- the offender must notify Corrective Services of any change of contact details as soon as possible, but not later than 1 day after the day the offender becomes aware of the changes;
- the offender must comply with any direction given to the offender by Corrective Services under either the above Act or the Corrections Management Act 2007 in relation to the ICO;
While on ICOs, offenders are on probation under the supervision of Corrective Services’ director‑general (or her delegate) and must comply with the director-general’s reasonable directions in relation to the probation. Any test sample given by the offender (under a direction under Section 43 of the Crimes (Sentencing) Act) must not be positive to alcohol or illicit drugs;
Any test sample given by the offender (under a direction under Section 43 of the Crimes (Sentencing) Act) must not be positive to alcohol or illicit drugs;
Section 42 stipulates also that the offender must not:
- leave the ACT without the director-general’s approval; or
- leave Australia without the Sentence Administration Board’s written approval; and if leaving the ACT or Australia, the offender must comply with any condition of the approval to leave;
Further, the offender must comply with any direction by the director-general to:
- live at any premises; or
- undertake any program; or
- report to a Corrections officer; or
- allow a Corrections officer to visit the place where the offender lives at any reasonable time.
The offender must comply with any notice to attend a hearing of the Sentence Administration Board.
An Intensive Correction Order may include 1 or more of the following additional conditions:
- community service;
- a rehabilitation program;
- reparation order, non-association or place-restriction orders;
- a condition prescribed by regulation;
- any other condition, not inconsistent with the Crimes (Sentencing) Act or the Crimes (Sentence Administration) Act, that the court considers appropriate.
Examples of some of the conditions contemplated include taking medication and co-operating with medical assessments; supplying samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a Corrections officer; attending educational, vocational, psychological, psychiatric or other programs or counselling; and not driving a motor vehicle or consuming alcohol or non‑prescription drugs or medications.
If the court imposes community service as part of an ICO, Section 46 of the Crimes (Sentence Administration) Act provides that the director-general may direct an offender to do community service work that the director-general considers suitable.
The direction must include details of:
- the community service work;
- the place to which the offender must report for the work;
- the time when the offender must report;
- the person (if any) to whom the offender must report;
- the offender’s Corrections supervisor.
Offenders are not required to do work they are not capable of doing; and directions must, as far as practicable, avoid any interference with the offender’s normal attendance at another place for work or at an educational institution.
The offender must also comply with any reasonable direction given to the offender, orally or in writing, by the work supervisor in relation to the community service work.
If the offender cannot comply with the director-general’s direction regarding community service, the offender must tell his or her Corrections supervisor as soon as possible.
If an offender fails to report to do community service work or fails to do that work or fails to comply with a reasonable direction by the work supervisor, the director-general may direct the offender, orally or in writing, not to do the community service work and to leave the place where it was to be done.
If an offender fails to report to do community service work because he or she was remanded in custody or detained under mental-health legislation, the offender is taken to have performed community service work in accordance with the direction for that particular work period.
An offender must not do, or be credited with, more than 8 hours of community service work on any day.
Participation in a program for therapy or education must not make up more than 25 per cent of the total number of hours of community service work required to be performed by an offender subject to a community service condition under an ICO.
An offender must tell the director-general as soon as possible about any change of which the offender is aware in the offender’s physical or mental condition that affects his or her ability to do community service work safely.
The director-general may direct an offender to give a test sample for alcohol or illicit drugs when reporting to do community service work.
An ICO may also include a curfew condition, if the court is satisfied that each adult who is living at the curfew place or has parental responsibility or guardianship for a person who is living at the curfew place consents to the curfew.
Curfews are imposed under Part 5.5 of the Crimes (Sentence Administration) Act, which provides that a curfew condition of an ICO must include details of:
- the place where the offender must remain for the curfew;
- the period of time (not longer than the offender’s sentence) that the curfew will be in place.
The director-general of Corrective Services may, at any time while a curfew condition is in effect, direct the offender to remain at a different place for the curfew if satisfied that each adult who is living at the place, or has parental responsibility or guardianship for a person who is living at the place, consents to the place being used for that purpose.
The sentencing court may recommend an amount of time that the offender should remain at the curfew place each day.
The director-general may, after taking into account any recommendation of the sentencing court, direct the offender, orally or in writing, to remain at the curfew place for a period of time (not more than 12 hours in a 24-hour period) each day.
To comply with a rehabilitation-program condition on an ICO, the offender must comply with Part 5.4 of the Crimes (Sentence Administration) Act.
The director-general may give an offender directions, orally or in writing, in relation to a rehabilitation program condition to which the offender’s intensive correction order is subject.
A direction may include details of the following:
- the program the offender must attend;
- the place to which the offender must report for the program;
- the time when the offender must report;
- the person (if any) to whom the offender must report.
If the Territory makes an agreement with an entity under which an offender may participate in a rehabilitation program provided by the entity, the director-general must ensure that the agreement requires the entity, on the director-general’s request, to give the director-general written reports about the offender’s participation in the rehabilitation.
Is an ICO a conviction and will I have a criminal record?
If you are sentenced to an ICO then you have been convicted of the offence, and it will appear on your criminal record.
What happens if I breach an ICO?
If a Corrections officer believes on reasonable grounds that an offender has breached his or her ICO obligations, the matter must be reported to the Sentence Administration Board.
If a police officer believes on reasonable grounds that a breach has occurred, he or she may arrest the offender without a warrant and, as soon as practicable, bring the offender before the board, or if the board is not sitting, a magistrate.
Section 60 of the Crimes (Sentence Administration) Act provides that if the offender is brought before a magistrate, the magistrate must adjourn the matter until the offender can be brought before the board.
A judge or magistrate may issue a warrant for an offender’s arrest if satisfied, by information on oath, that there are reasonable grounds for suspecting that the offender has breached, or will breach, any of the offender’s ICO obligations.
The board may conduct an inquiry to decide whether an offender has breached any of his or her obligations.
The board must hold a hearing for an inquiry:
- on application by the director-general; or
- after receiving a report from a Corrections officer; or
- if the offender is arrested.
However, the above provisions do not apply if the offender has been convicted of a new offence punishable by imprisonment.
Before the board starts an inquiry, the director-general must give written notice of the inquiry to the offender and the Director of Public Prosecutions.
The notice must include:
- the reasons for the inquiry; and
- an invitation for the offender to make submissions to the board by a stated date for the inquiry; and
- if a board hearing is to be held in relation to the inquiry:
- the date, time and location of the hearing; and
- a statement about the offender’s rights at a board hearing (as provided by Section 209 of the Crimes (Sentence Administration) Act.
An offender who is given notice of a hearing under this section must appear at the hearing.
If, after an inquiry, the board is satisfied that the offender has breached his or her ICO obligations, the board may do 1 or more of the following:
- give the offender a warning;
- suspend the ICO for:
- if the offender admits that the offender has breached an obligation – 3 days to be served by imprisonment by full‑time detention, but not past the end of the offender’s sentence; or
- in any other case – 7 days to be served by imprisonment by full-time detention, but not past the end of the offender’s sentence;
- cancel the ICO;
- refer the offender to a court for amendment or discharge of the ICO if the board decides that the offender is unlikely to be able to serve the remainder of the order by intensive correction, having regard to:
- the offender’s health; or
- any exceptional circumstances affecting the offender.
The board must not give more than 3 warnings in a 12-month period.
If, after being sentenced to an ICO, an offender is convicted or found guilty of a new offence, the sentencing court must, as soon as practicable:
- cancel the intensive correction order, unless cancellation is not in the interests of justice; and
- if the court cancels the ICO, order that the remainder of the offender’s sentence be served by full‑time detention. The court must state when the period of full‑time detention starts and ends; and may set a non-parole period if the sentence of imprisonment for which the ICO was made is more than 12 months; and the period of full-time detention is more than 30 days.
If the court decides that it is not in the interests of justice to cancel the ICO, it must give reasons.
If the board is satisfied that the offender has withdrawn his or her consent to an ICO, it must cancel that ICO.
For advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
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