The criminal lawyers at Australian Criminal Law Group are experts at arguing for Intensive Correction Orders rather than full-time imprisonment when our clients are sentenced for serious crimes.
Below is a breakdown of the law around Intensive Correction Orders.
What is an Intensive Correction Order?
Section 7(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment for one or more offences may make an intensive correction order (ICO) directing that the sentence be served in the community.
Community safety is the paramount consideration when determining whether to make an ICO. When considering community safety, the court is required to assess whether an ICO or full-time detention is more likely to address the offender’s risk of reoffending. This requirement recognises that community safety is not achieved simply by incarcerating an offender, but that incarceration may have the opposite effect. As the Attorney General stated when introducing the legislation, “community safety is not just about incarceration… community supervision and programs are far more effective (at reducing re-offending).
Are ICOs available for all sentences?
An ICO can be made for up to 2 years for a single offence. If an ICO is made for multiple offences or two or more ICOs are made, the sentence of imprisonment must not exceed 3 years.
An ICO is also not available for certain offences, including murder or manslaughter, terrorism, an offence involving the discharge of a firearm, and a prescribed sexual offence. A prescribed sexual offence includes offences where the victim is under 16 years, or the offence involves sexual intercourse and the victim is of any age, child prostitution, and child pornography offences.
An ICO must not be made in respect of a sentence of imprisonment for a domestic violence offence unless the court is satisfied that the victim of the domestic violence offence, and any person living at the residence, will be adequately protected.
What is the process the court follows to impose an ICO?
An ICO is a form of imprisonment, and making an ICO requires a sentencing court to follow a three-stage process before directing that the sentence can be served in that way. The three stages are:
- The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate.
- If a sentence of imprisonment is appropriate, the court determines the length of sentence without regard to how it is to be served. It is inappropriate to consider how the sentence will be served before determining its length.
- The court must then consider whether any alternative to full-time imprisonment should be imposed.
Community safety is the paramount consideration when undertaking the third step to decide whether an alternative to full-time imprisonment should be imposed.
What have the courts said about community safety?
His Honour Gleeson JA, in Stanley v R, clearly stated the relevant principles in considering community safety. Those being:
- Consideration of community safety is mandatory, regardless of the weight it is ultimately given, so long as the sentence is 2 years or below for a single offence, or three years for more than one offence.
- The power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration. The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety.
- Community safety is premised upon the view that an offender’s risk of reoffending may differ depending on how their sentence of imprisonment is served. It implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety.
- The nature and content of the conditions that an ICO might impose will be important in measuring the risk of reoffending.
- Community safety is to be considered in a forward-looking manner, considering the offender’s risk of reoffending.
What are the conditions that can be imposed as part of an ICO?
The court must impose the standard conditions on the ICO at the time of sentence, at least one additional condition, and may impose further conditions.
The standard conditions are that the offender must not commit any offence and must submit to supervision by a community corrections officer.
In addition to the standard conditions, the court must, at the time of sentence, impose at least one of the additional conditions, unless satisfied there are exceptional circumstances.
The additional conditions available include:
- Home detention.
- Electronic monitoring.
- A curfew.
- Community service work requiring the performance of community service work for a specified number of hours.
- A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment.
- 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.
The court may impose further conditions on an ICO, but these must not be inconsistent with any standard or additional conditions.
What happens when someone breaches an ICO?
Where the Commissioner of Corrective Services or a community corrections officer is satisfied an offender has failed to comply with their obligations under an ICO, a community corrections officer may:
- Record the breach and take no formal action.
- Give an informal warning to the offender.
- Give a formal warning that further breaches will result in referral to the Parole Authority.
- Give a direction about the non-compliant behaviour
- Impose a curfew.
If the breach is more serious, the Commissioner or a community corrections officer can refer the breach to the Parole Authority. In that case, where the Parole Authority is satisfied that an offender has failed to comply with their obligations under an ICO, it may:
- Record the breach and take no further action.
- Give a formal warning.
- Impose any conditions on the ICO.
- Vary or revoke the conditions of the ICO, including those imposed by the court.
- Revoke the ICO.
Why choose Australian Criminal Law Group?
The Australian Criminal Law Group are experts on ICOs. We convince courts to make such orders when people are sentenced for serious crimes.
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Contact us now for an in-person appointment at our Sydney, Parramatta, or Blacktown office, or via phone or video.