Intensive Correction Orders

An Intensive Corrections Order (“ICO”) is a sentencing order that was introduced on 24 September 2018 into the Crimes (Sentencing Procedure Act) 1999. The power for a Court to impose an Intensive Corrections Orders is under Section 7 of the Act with the sentencing procedures for ICOs being contained in Part 5, Sections 66 – 73B of the Act.  

What is an Intensive Corrections Order?

There are two kinds of “terms of imprisonment” under the sentencing legislation. The first is an Intensive Corrections Order (ICO) and the second is full time custody. An Intensive Correction Order (ICO) is a term of imprisonment which is served in the community by way of a good behaviour bond. When a person is sentenced to an ICO they do not go to Gaol and are able to remain in the community subject to strict conditions and supervision by Community Corrections. 

A Court must not sentence a person to a term of imprisonment if any other sentencing option (such as a Community Corrections Order or Fine) is appropriate. This test is known as the “Section 5 threshold”, if there are no other appropriate sentencing options the threshold has been crossed, and the Defendant will be sentenced to a “term of imprisonment” (either an ICO or full time custody).

In determining whether a person will serve their term of imprisonment in the community under an Intensive Corrections Order or will be sentenced to full time imprisonment, the Court must apply Section 66 of the Act which places the protection of the community as the paramount consideration and also requires the Court to consider whether making an ICO or serving the sentence in custody is more likely to address the offender’s risk of reoffending. 

Legislation:

When is an Intensive Corrections Order not available?

Intensive Corrections Orders are not available for certain offences pursuant to Section 67 of the Act. These include:

• Murder and manslaughter;
• Terrorism offences;
• An offence involving the discharge of a firearm;
• Prescribed sexual offences (including sexual touching without consent, sexual assault, possession/dissemination, or production of child abuse material, filming a person engaged in a private act or filming their private parts if the person is under the age of 16 years).

An ICO cannot be imposed if the term of imprisonment for a single offence exceeds two years. A person can receive an ICO of up to three years for multiple offences, but not more than two years for a single offence. The Court cannot order an Intensive Corrections Order if there is an aggregate term of more than three years imprisonment. 

The sentencing Court cannot impose an ICO if the person resides, or intends to reside, in a state or territory other than New South Wales unless that other state or territory is declared by the regulations to be an approved jurisdiction.

Conditions of an Intensive Corrections Order (“ICO”):

Standard Conditions 

When a Court imposes an ICO on an offender, Section 73 of the Act requires the Court to impose the ‘standard conditions’ of that order. 

The standard conditions of an intensive corrections order are:

1. A condition that the offender must not commit any offence,
2. A condition that the offender must submit to supervision by a community corrections officer.

Additional Conditions 

The sentencing Magistrate or Judge also has the ability to impose additional conditions as part of the Intensive Corrections Order pursuant to Section 73A of the Act. Those additional conditions include:

1. a home detention condition,
2. an electronic monitoring condition,
3. a curfew condition imposing a specified curfew,
4. 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),
5. a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment,
6. an abstention condition requiring abstention from alcohol or drugs or both,
7. a non-association condition prohibiting association with particular persons,
8. a place restriction condition prohibiting the frequenting of or visits to a particular place or area.

Conditions Which Cannot Be Imposed 

While the Court can impose further conditions upon an offender, the Act states that the following cannot be imposed with an Intensive Corrections Order:

1. If the condition would be inconsistent with the standard conditions of the order, 
2. If the condition would be inconsistent with the additional conditions of the order. 

Consequences of Breaching an Intensive Corrections Order:

Unlike breaches of a Conditional Release Order or a Community Corrections Order, breaches of an Intensive Corrections Order are not dealt with by the Courts but by the NSW State Parole Authority. 

Any failure to comply with an ICO may result in the Community Corrections Office (Probation & Parole) imposing harsher conditions or referring the person to the State Parole Authority. Ultimately, the ICO may be revoked with the consequence that the sentence of imprisonment is served as full-time custody (i.e. prison).

Community Corrections can take any of the following actions in response to a breached ICO:

• Record the breach and take no action; or
• Provide the person with an informal warning; or
• Provide a formal warning to the person and advise him/her that any further breaches will be reported to the Parole Authority;
• Give a reasonable direction to the person; or
• Impose a curfew of up to 12 hours in any 24 hour period; or
• Notify the State Parole Authority through a report which would include a recommendation as to the type of action Community Corrections believes is appropriate for the Parole Authority to take. 

Where a referral is made to the NSW State Parole Authority, the Authority will hold a hearing to determine whether the ICO should be revoked. If the ICO is revoked, the person should expect to serve the remaining duration of the ICO in Gaol.

Will I get a criminal record for an Intensive Corrections Order?

Yes, if a person is sentenced to an Intensive Corrections Order (ICO) they are convicted of the offence and this conviction will be recorded on their criminal record. 

Related Consequences of a Community Corrections Order:

Automatic and Mandatory Licence Disqualification 

Some traffic offences (such as speeding >30km/h, drink driving, negligent driving or driving while suspended) also carry a licence disqualification consequence in addition to their prescribed maximum penalties. The provisions relating to automatic and mandatory disqualification periods for traffic offences are contained in Section 205 of the Road Transport Act 2013. 

The Legislation states that when the Defendant is convicted of the offence, the automatic and mandatory licence disqualification will be applied against the Defendant’s licence. 

As an ICO is a conviction penalty, when a person is sentenced to an ICO, this will trigger the automatic and mandatory licence disqualification being applied and their licence will be disqualified for the prescribed period. 

Mandatory Interlock Order

Similarly, if the offence for which a person is being sentenced contains a ‘mandatory interlock’ provision then when a person is convicted the Court is required to impose a mandatory interlock order on the Defendant. Mandatory Interlock Orders involve two stages:

1. Licence Disqualification – A period of disqualification is applied to the licence, then
2. Interlock Order – After the disqualification period has been served, order the Defendant to obtain an interlock licence and have an interlock device installed in their vehicle for the prescribed period of time. 

As an ICO is a conviction penalty, when a person is sentenced to an ICO, this will trigger the mandatory interlock order being applied to their licence.