Why Do We Have Intensive Correction Orders? (ACT)

Intensive Correction Orders (ICOs) are prison sentences served in the community. They are a relatively new sentencing option and have been available in the ACT only since 2016. The availability of ICOs as a sentencing option in the criminal courts has saved some people from relatively lengthy prison sentences. This is illustrated in the 2021 ACT Supreme Court decision of R v Butler.

What is an ICO?

As its name suggests, an ICO subjects an offender to intensive correction. This can include curfews, up to 500 hours of community service, non-association conditions, place restrictions, counselling requirements and the completion of specified courses.

Failure to comply with the conditions of an ICO can result in immediate imprisonment. When a person breaches their ICO, they will be dealt with by the Sentence Administration Board without recourse to a court.

Why were ICOs introduced in the ACT?

A recent ACT case R v Butler [2021] ACTSC 294 highlights the multitude of factors that led to the introduction of Intensive Correction Orders in the Territory.

Butler was an assault matter that involved a victim being stabbed in the neck. Justice Elkaim made plain that the usual course to be followed for such serious offending was prison time. However, the court then had to consider the unique set of subjective features of the offender, and, critically, the views of the principal victim.  “This really is a quite exceptional case,” he found.

“Normally I would not consider this option [an ICO], the combination of the criminal history and the nature of the offences demanding a full-time custody sentence. I would not have thought that the 69 days already served was enough.”

The offender in Butler was charged with two counts of assault occasioning actual bodily harm and one of using a prohibited weapon. The maximum penalty for each was five years imprisonment.

The circumstances of the offending were as follows. While his home was flooded, the offender went to stay with two friends, who were brothers. A fourth person arrived and alcohol was consumed. An argument broke out and offender was told to leave. Instead, he trapped one of the brothers on the couch, struck him on the cheek and then stabbed him with a flick knife to the left side of the throat. The fourth person intervened and received superficial stab wounds to the palm of one hand.

The offender’s personal history was as follows. After adoption and removal to Sweden, the offender had been fostered before being returned to Australia where he was placed with his maternal grandparents who, in the Judge’s words, were “non-functioning alcoholics”.

He had left school in Year 8, been in prison in the year he turned 21 and had had many prison sentences since. He had also endured liver disease, post-traumatic stress disorder, a bacterial condition, borderline personality disorder, and heroin and alcohol dependence.

He had suffered a fractured skull when hit as a child with a piece of concrete and again as an adult when shot with a tear-gun canister during a Bathurst prison riot. Prisoners had jumped on his head in an attack at Junee and he had been assaulted by prison officers in Long Bay.

At the time of sentence, he had a perforated ear drum, endocarditis (infection of the heart valves), diverticular disease (inflamed pouches in the digestive tract) and a pulmonary embolism.

The judge was a master of understatement: “The offender is currently not very well.”

The victim of the stabbing provided a Victim Impact Statement which the judge said was “noteworthy for its graciousness”. It comprised only four sentences and suggested that time served in prison before sentence (69 days) “seems sufficient”. That said, the victim “now slept surrounded by knives in different places”, concluding: “For as much as I have tried to leave it behind, this event still affects me sadly.”

The decision in Butler

“General and specific deterrence are very important considerations,” the judge ruled. “So too is the need for criminal behaviour to be punished, in particular where a person has suffered significant physical and/or mental harm. Against that were “overwhelming subjective factors”, including this telling observation: “There is also a long history of being in prison which does not seem to have had much of a deterrent effect.”

This point is precisely why various jurisdictions have adopted Intensive Correction Orders. These provide a way to rehabilitate offenders, which is seen as the community’s best protection against re-offending.

“Then there is the decency of the victim …” the judge continued. “The ICO Assessment Report says the offender is a suitable candidate for an ICO. Normally I would not consider this option, the combination of the criminal history and the nature of the offences demanding a full-time custody sentence. I would not have thought that the 69 days already served was enough.

“But this really is a quite exceptional case. This had been recognised by the Crown who submitted that a custodial sentence was appropriate but it would be a matter for the Court as to how that sentence should be served. I am grateful to the Crown for taking an attitude that is both fair and relevant to the appropriate sentencing principles.”

For the neck-stabbing assault, the court imposed a sentence of 24 months. For the other assault, it imposed 19 months. For possessing the knife, it imposed 6 months imprisonment. All these sentences were made wholly concurrent and were to be served in the community on an Intensive Correction Order with a condition that the offender engage in mental-health, alcohol and drug assessments, counselling, treatments, or programs as directed.

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