Section 20AB of the Crimes Act 1914 (Cwth) allows courts in NSW to impose penalties for commonwealth offences that are similar to penalties available for state crimes.
This means that because Intensive Correction Orders (or ICOs) are available for NSW state offences, they are also available for commonwealth offences.
On 24 September 2018, broadened intensive correction orders replaced suspended sentences, home detention and existing intensive correction orders in New South Wales.
An intensive correction order is an alternative to imprisonment, and can only be imposed after a court has determined that a prison sentence is appropriate.
There are certain rules a court must follow before imposing an intensive correction order.
The two year rule:
A court can only make an intensive correction order where it has imposed a prison terms of two years or less.
However, ICOs totally up to three years can be made where a person is being sentenced for multiple offences, each of which attracted prison terms of two year or less.
The ‘paramount consideration’ when deciding whether to impose an ICO is ‘community safety’, and a court must assess whether an ICO would be more likely to address the defendant’s risk of reoffending than full-time imprisonment.
A court cannot impose an ICO for the following offences:
- Murder or manslaughter,
- Any ‘prescribed sexual offence’, which includes any sexual offence committed against a person under 16, or which includes an element of sexual intercourse, or any child pornography or child abuse material offence,
- Any terrorism offence,
- Any contravention of a serious crime prevention order or public safety order,
- Any offence involving the discharge of a firearm, or
- Any offences that includes an intention, attempt, conspiracy or incitement to commit any of the above offences.
A court must order an assessment report before making an ICO.
It must have regard to the contents of the report, but is not bound by it.
A CCO cannot be imposed for a domestic violence offence unless the court has considered the safety of the complainant.
The standard (mandatory) conditions of an ICO are that:
- the defendant must not commit any further offences, and
- the defendant must submit to supervision by a community correction officer.
The court must impose at least one of the following additional conditions:
- Home detention,
- Electronic monitoring,
- Community service work (up to 750 hours),
- Participation in a rehabilitation program or acceptance of treatment,
- Abstention from alcohol or drugs, or both,
- Non-association with particular persons,
- Prohibition from frequenting or visiting a place or area.
A court may at the time of sentencing impose any further conditions, as long as they are not inconsistent with the existing standard or additional conditions.
It may limit the duration of an additional condition; so, for example, it may prescribe a 6 month home detention condition when the duration of the ICO is 2 years.
The Parole Authority can impose, vary or revoke ICO conditions after the sentencing date upon application by a community corrections officer provided that a court could have done the same at the time of sentencing.
The Authority cannot, however, impose a home detention or community service condition unless it has received an assessment report by a community correction officer which states that such a condition is appropriate.
An ICO must always have at least one additional condition.
A community correction officer can suspend the supervision condition and any additional conditions conditionally or unconditionally for a specific period or time or indefinitely.
An ICO can last for up to 2 years.
If a community correction officer suspects a person of breaching an ICO, he or she can record the breach and:
- take no action,
- issue an informal warning,
- issue an informal warning and advise that any further breach will result in referral to the Parole Authority,
- issue a reasonable direction,
- impose a curfew (of up to 12 hours in any 24 hour period),
- refer the breach to the Parole Authority.
In the event the breach is referred to the Parole Authority, it may record the breach and:
- take no action,
- issue a formal warning,
- impose additional condition/s,
- change or revoke existing additional condition/s,
- revoke the ICO.
If the ICO is revoked, the defendant will be ordered to serve the full sentence in prison.
The decision to revoke an ICO can be appealed to the Parole Authority.
However, this can only be done after the defendant has served at least one month in prison.
The appeal should outline any steps undertaken to ensure the ICO conditions will be complied with in the future.
The Parole Authority may order a further assessment report to determine whether the defendant is still suitable for an ICO.
If so, the Authority may release the defendant from custody under the ICO.