The Crimes (Sentencing Procedure) Act 1999 is to be amended on 24 September 2018. One of the amendments to the legislation is to expand Section 7 of the Crimes (Sentencing Procedure) Act 1999.
The amendments provide that when the sentencing court is deciding to make an Intensive Corrections Order (ICO), community safety must be the paramount consideration (s 66 of the Crimes (Sentencing Procedure) Act 1999). The Court will still be required to obtain an assessment report in relation to an offender before an ICO may be imposed.
An Intensive Corrections Order (ICO) is a type of prison sentence served in the community. An ICO order of the Court requires you to perform 32 hours of community service per month of your sentence, to comply with certain conditions and to be strictly supervised by Community Corrections.
A court can only impose an ICO if they conclude 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, home detention or full time prison.
If the court is considering an ICO, it must refer you to Corrective Services for assessment to help determine whether an ICO is appropriate. Not everyone is determined to be 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 can not 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.
Part 5 of the Crimes (Sentencing Procedure) Act 1999 outlines the procedures for intensive correction orders.
- Section 68 (1) states that ICOs will only be available if the duration of the term of imprisonment imposed is two (2) years or below.
- Section 68 (2) states that ICOs may also be available in respect of an aggregate sentence of imprisonment, but only if the duration does not exceed three (3) years.
- Section 68 (3) states that two (2) or more ICOs can be made.
Section 72 outlines the conditions that an ICO is subject to. These include:
- Standard conditions imposed by the sentencing Court under section 73.
- Any additional conditions imposed by the sentencing Court under section 73A.
- Any further conditions imposed by the sentencing Court under section 73B.
- Any imposed by the Parole Authority under section 81A or 164 of the Crimes (Administration of Sentences) Act 1999.
Section 73 (2) outlines the standard conditions which must be imposed on an ICO.
The standard conditions of an intensive correction order are the following:
- A condition that the offender must not commit any offence,
- A condition that the offender must submit to supervision by a community corrections officer.
Section 73A (1) outlines that at least one (1) 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, an assessment report must state that the offender is suitable to be subject to such a condition:
The additional conditions of an intensive corrections order 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,
- a place restriction condition prohibiting the frequenting of or visits to a particular place or area.
Section 73B outlines the further conditions which may be imposed on an ICO:
- The sentencing Court may at the time of sentence impose further conditions on an intensive corrections order.
- This section does not permit the sentencing Court to impose any further conditions so as to be inconsistent with:
- any of the standard conditions of an intensive corrections order, or
- any of the additional conditions (whether or not imposed on the intensive corrections order) referred to in section 73A (2).
- The sentencing Court may limit the period during which a further condition imposed by it on an intensive corrections order is in force.
Section 67 outlines that an ICO must not be made for certain offences:
- An intensive corrections order 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),
- an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraphs (a) – (g).
Existing Section 12 (Suspended Sentence) and Section 6 (Home Detention Order) of the Crimes (Sentencing Procedure) Act 1999 will be omitted. A Home Detention Order will be an additional condition that the sentencing Court can impose.
As a result of amended legislation this penalty (information below) was repealed on 24 September 2018.
Section 7 of the Crimes (Sentencing Procedure) Act 1999 is where this type of penalty is found. Section 7 states:
- A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community.
- If a court makes an intensive correction order directing that a sentence be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.
If you are sentenced to an ICO then you have been convicted of the offence, and it will appear on your criminal record.
If the Court has determined that you will receive a sentence of imprisonment of less than two years, they can order a report to assess whether you can serve that term by way of an ICO, instead of in full time custody.
If the report does not assess you as being suitable, you cannot be sentenced to an ICO.
There are a number of sexual offences which are also, automatically ineligible for an ICO.
The mandatory conditions are as follows:
- be of good behaviour and not commit any offence,
- report, on the date fixed as the date of commencement of the sentence or on a later date advised by the Commissioner, to a local office of Corrective Services NSW or other location advised by the Commissioner,
- reside only at premises approved by a supervisor,
- prohibition on you leaving or remaining out of New South Wales without the permission of the Commissioner,
- prohibition on you leaving or remaining out of Australia without the permission of the Parole Authority,
- you must submit to receiving visits by a supervisor at the offender's home at any time for any purpose connected with the administration of the order,
- you must authorise his or her medical practitioner, therapist or counsellor to provide to a supervisor information about the offender that is relevant to the administration of the order,
- you must submit to searches of places or things under his or her immediate control, as directed by a supervisor,
- you are prohibited from using prohibited drugs, obtaining drugs unlawfully or abusing drugs lawfully obtained,
- you must submit to breath testing, drug testing or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor,
- you must not possess or having in your control any firearm or other offensive weapon,
- you must submit to surveillance or monitoring (including electronic surveillance or monitoring) that a supervisor may direct, and comply with all instructions given by a supervisor in relation to the operation of surveillance or monitoring systems,
- you are prohibited from the offender tampering with, damaging or disabling surveillance or monitoring equipment,
- you must comply with any direction given by a supervisor that requires the offender to remain at a specified place during specified hours or that otherwise restricts the movements of the offender during specified hours,
- you must undertake a minimum of 32 hours of community service work a month, as directed by a supervisor from time to time,
- you must engage in activities to address the factors associated with his or her offending as identified in the offender's assessment report or that become apparent during the term of the order, as directed by a supervisor from time to time,
- you must comply with all reasonable directions of a supervisor,
- you must submit to a medical examination by a specified medical practitioner, as directed by a supervisor, in relation to the offender's capacity to undertake community service work or to otherwise comply with the offender's obligations under the intensive correction order.
Additional conditions can be imposed by the Court as well.
Breaches of an ICO are dealt with by the Commissioner of Community Corrections and the Parole Authority. You will not be taken back before the Court if you breach an ICO.
If you breach an ICO, the Commissioner may impose a formal warning; a sanction in the form of a more stringent application of the conditions; or, finally, the Commissioner can decide to refer serious breaches to the Parole Authority.
The Parole Authority can impose a period of up to 7 days home detention on the offender or revoke the ICO.
If the Parole Authority revokes your ICO, they will issue a warrant for your arrest, so that you serve the remainder of your ICO in jail.
The Parole Authority can backdate the breach of your ICO to the date the breach happened. This is important, as if the breach happened some time ago, you may not get ‘credit’ for any time you were subject to the ICO after the breach. This can mean that you end up spending longer in custody.
It is important to get legal advice if you think you have breached your ICO, as the consequences can be severe.
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