Intensive correction orders (ICOs) (alternative to full-time imprisonment)
Section 7(1) Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community.
Part 5 Crimes (Sentencing Procedure) Act sets out the sentencing procedures governing ICOs. The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, which commenced on 24 September 2018, restructured and amended the provisions relating to ICOs, including repealing and replacing Pt 5.
The changes made to the structure of an ICO allow offenders to access intensive supervision as an alternative to a short prison sentence and “help courts ensure that offenders address their offending behaviour and are held accountable”: Attorney General (NSW), the Hon M Speakman SC, Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill and cognate legislation, NSW, Legislative Assembly, Debates, 11 October 2017, p 2.
A feature of the new Pt 5 is that community safety is the paramount consideration when determining whether to make an ICO because, the Attorney General said, at p 2, “community safety is not just about incarceration” and that “community supervision and programs are far more effective” at reducing re-offending.
The provisions in Pt 5 also:
give the court more discretion to tailor the particular conditions to be imposed on the ICO to the individual offender
require that an ICO be subject to two standard conditions and at least one additional condition (which may include home detention)
further restrict the offences for which an ICO can be made.
ICOs made before 24 September 2018 continue in operation but with revised conditions.
Home detention orders are taken to be ICOs subject to standard ICO conditions and a home detention condition. See ICOs and home detention orders made before 24 September 2018 at [3-690].
[3-610] Power to make ICO subject to Pt 5
A court that has sentenced an offender to imprisonment in respect of one or more offences may make an ICO directing that the sentence be served by way of intensive correction in the community: s 7(1) Crimes (Sentencing Procedure) Act 1999. If such an order is made, the court must not set a non-parole period for the sentence: s 7(2).
Although s 7(1) is expressed in the past tense, “[a] court that has sentenced”, s 7(4) makes it clear that the power under s 7(1) is “subject to the provisions of Part 5” of the Act. Part 5 is headed “Sentencing procedures for intensive correction orders” and applies “in circumstances in which a court is considering, or has made, an intensive correction order”: s 64. [Emphasis added.]
[3-620] Restrictions on power to make ICO
Part 5, Division 2 Crimes (Sentencing Procedure) Act 1999 sets out specific restrictions on the power to make an ICO.
ICO not available for certain offences
Section 67(1) provides that an ICO must not be made in respect of a sentence of imprisonment for:
murder or manslaughter
a prescribed sexual offence
a terrorism offence within the meaning of the Crimes Act 1914 (Cth) or under s 310J Crimes Act 1900
an offence relating to a contravention of a serious crime prevention order under s 8 Crimes (Serious Crime Prevention Orders) Act 2016
an offence relating to a contravention of a public safety order under s 87ZA 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).
“Prescribed sexual offence” is defined in s 67(2) and encompasses a range of offences including offences under Pt 3, Divs 10–10A Crimes Act where the victim is under 16 years or the offence involves sexual intercourse and the victim is of any age; child prostitution; voyeurism offences where the victim is a child; State and Commonwealth child abuse material and child pornography offences; offences of trafficking children and procuring children for sexual activity under the Criminal Code (Cth) and some repealed offences under the Crimes Act 1914 (Cth).
Nor can an ICO be made with respect to an aggregate sentence of imprisonment in relation to two or more offences, where any one of the offences is an offence listed in s 67(1): s 67(3).
ICOs and domestic violence offences
An ICO must not be made in respect of a sentence of imprisonment for a domestic violence offence, or an aggregate sentence of imprisonment where any one or more of the offences is a domestic violence offence, unless the court is satisfied the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected: s 4B(1). If the court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes the offender will reside with the victim of the domestic violence offence: s 4B(2).
ICOs not available for juvenile offenders
An ICO may not be made with respect to offenders under the age of 18 years: s 7(3).
ICOs not available where imprisonment exceeds limits
An ICO must not be made in respect of a single offence if the duration of the term of imprisonment for the offence exceeds 2 years: s 68(1). An ICO may be made in respect of an aggregate sentence of imprisonment, however the aggregate term must not exceed 3 years: s 68(2). Two or more ICOs may be made for two or more offences but the duration of any individual term of imprisonment must not exceed 2 years, and the duration of the term of imprisonment for all offences must not exceed 3 years: s 68(3).
A court cannot manipulate pre-sentence custody for the purpose of bringing a sentence within the jurisdictional ceiling for the imposition of an ICO: R v West  NSWCCA 250.
ICOs not available for offenders residing in other jurisdictions
The court may not make an ICO in respect of an offender who resides, or intends to reside, in another State or Territory, unless the regulations declare that State or Territory to be an approved jurisdiction: s 69(3). No State or Territory is currently declared to be an approved jurisdiction.
[3-630] ICO is a form of imprisonment
An ICO is a “custodial sentence” referred to in Pt 2, Div 2 Crimes (Sentencing Procedure) Act 1999. Since it is a form of imprisonment, there are steps the court must follow before a sentence of imprisonment by way of an ICO can be imposed.
The preliminary question is whether there is an alternative to the imposition of a sentence of imprisonment. The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act; R v Douar (2005) 159 A Crim R 154 at ; R v Hamieh  NSWCCA 189 at .
If a sentence of imprisonment is appropriate, the court then determines the term of imprisonment without regard to the manner it is to be served: R v Douar at ; R v Zamagias  NSWCCA 17 at ; Zreika v R (2012) 223 A Crim R 460 at . It is preferable for the court to articulate its conclusion as to the appropriate term: R v Assaad  NSWCCA 182 at . It is impermissible to select an ICO and then determine the length of the sentence: R v Ryan (2006) 167 A Crim R 241 at , .
The court must then consider whether any alternative to full-time imprisonment, namely an ICO, should be imposed: R v Zamagias at ; R v Foster  NSWCCA 215 at ; Campbell v R  NSWCCA 87 at , .
Inherently lenient or a substantial punishment?
Under the previous ICO scheme, the courts recognised that while an ICO has the capacity to operate as substantial punishment, it can also reflect a significant degree of leniency because it does not involve immediate incarceration: R v Pogson  NSWCCA 225 at ; Whelan v R (2012) 228 A Crim R 1 at . One basis for considering an ICO “substantial punishment” was because the order was subject to mandatory conditions which deprived the offender of their liberty “in a real and not merely fictional sense”: R v Pogson at .
In R v Tannous (2012) 227 A Crim R 251, which was decided with respect to the previous statutory scheme, Basten JA said at  that a sentencing court only has “very general” information as to the actual operation of an ICO but that in a sentence appeal it might be possible to ascertain the degree of leniency or harshness of the conditions in the particular case. In doing so, the appeal court should have regard to the statutory scheme as it existed at the time of sentencing and the material before the judge: R v Tannous at .
The leniency (or severity) of an ICO will ultimately depend on the particular conditions imposed on the order.
[3-632] Community safety paramount consideration
When determining whether to make an ICO, community safety must be the court’s paramount consideration: s 66(1) Crimes (Sentencing Procedure) Act 1999. When considering community safety, the court must assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of re-offending: s 66(2). The court must also consider the purposes of sentencing in s 3A, any relevant common law principles and any other matters: s 66(3).
Evidence to assist in determining an offender’s risk of re-offending may be contained in an assessment report as the regulations require that this be addressed: cl 12A(1)(a) Crimes (Sentencing Procedure) Regulation 2017. However, subject to certain qualifications, not presently relevant, the court is not bound by the assessment report: s 69(2).
Cases decided under the previous ICO scheme, such as R v Pogson  NSWCCA 225, which discuss the relevance of the other purposes of sentencing such as “accountability of an offender” and “denunciation” may be instructive.
The statutory requirement that the court specifically assess the offender’s risk of re-offending, reflects, to some extent, the observations of Simpson J (as her Honour then was) in R v Boughen (2012) 215 A Crim R 476 and R v Agius  NSWSC 978 at –, made in respect of the previous ICO scheme. Her Honour observed, in R v Boughen at , that “it is clear that the principal focus of [an ICO] is rehabilitation”. In that case (tax fraud), the minimal prospect of the respondent re-offending was said to render the ICO inappropriate: R v Boughen at –. In R v Agius, her Honour reiterated at : “the objective of intensive correction orders is the rehabilitation of offenders at risk of re-offending” and, at , the only proper purpose of an ICO is “correction — correction from criminal engagement”. Although these views were subsequently rejected by a five-judge bench in R v Pogson, the case was decided under the previous ICO scheme which did not give primary significance to the risk of re-offending.
Another common law consideration relevant to whether or not the sentence should be served other than by way of full-time imprisonment is whether it “would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment”: R v Douar (2005) 159 A Crim R 154 at ; R v Hamieh  NSWCCA 189 at ; R v Zamagias  NSWCCA 17 at . Further, in R v Tannous (2012) 227 A Crim R 251 at , the court said that given an ICO is considered a form of imprisonment it “must have a significant punitive effect and therefore reflect, in all likelihood, a range of purposes identified in s 3A”. In R v Glynatsis (2013) 230 A Crim R 99 at , the imposition of an ICO (under the previous ICO provisions) on an offender who had been convicted of nine insider trading offences, did not adequately provide for general deterrence bearing in mind the nature of the criminality concerned.
[3-635] ICO assessment reports
In deciding whether or not to make an ICO, the court is to have regard to the contents of an assessment report and such evidence from a community corrections officer as the court considers necessary: s 69(1) Crimes (Sentencing Procedure) Act 1999.
The relevant statutory requirements for assessment reports are contained Pt 2, Div 4B (ss 17B–17D) Crimes (Sentencing Procedure) Act.
An assessment report may be requested:
after an offender has been found guilty and before imposing sentence: s 17C(1)(b)(i)
during sentencing proceedings after a sentence of imprisonment has been imposed: s 17C(1)(b)(ii)
during proceedings to correct a sentencing error: s 17C(1)(b)(iv).
A court must not:
make an ICO unless it has obtained a relevant assessment report in relation to the offender (although it is not required to obtain an assessment report if satisfied there is sufficient information before it to justify making the ICO): s 17D(1), s 17D(1A)
impose a home detention or community service work condition on an ICO unless it has obtained an assessment report relating to the imposition of such a condition: s 17D(2), 17D(4)
request an assessment report concerning the imposition of a home detention condition unless it has imposed a sentence of imprisonment on the offender for a specified term: s 17D(3).
The court is not bound by the assessment report except in the circumstances identified in s 73A(3): s 69(2). Section 73A(3) provides that a court must not impose a home detention condition or community service work condition on an ICO unless an assessment report states the offender is suitable.
A court may form the view that an ICO is not appropriate where a report indicates the offender will be unable to comply with the conditions of an ICO or if he or she is likely to breach the conditions: R v Zreika (2012) 223 A Crim R 460 at .
For the matters the assessment report must address, see Requirements for assessment reports at [3-510].
[3-640] ICO conditions
ICO conditions are imposed by the court under Pt 5, Div 4 Crimes (Sentencing Procedure) Act 1999, and may be imposed, varied or revoked by the Parole Authority or, in some circumstances, Community Corrections: Crimes (Administration of Sentences) Act 1999, ss 81, 81A, 164.
An ICO is subject to:
standard conditions (s 72(3) Crimes (Sentencing Procedure) Act)
additional conditions (s 73A)
any further conditions imposed by the court (s 73B)
any conditions imposed by the Parole Authority under ss 81A or 164 Crimes (Administration of Sentences) Act 1999.
The court must, at the time of sentence, impose on the ICO the standard conditions, at least one additional condition and may impose further conditions: s 73.
Range of conditions
The court must, at the time of sentence, impose on an ICO the standard ICO conditions, which are that the offender must not commit any offence and must submit to supervision by a community corrections officer: s 73(1), 73(2).
In addition to the standard conditions, the court must, at the time of sentence, impose at least one of the additional conditions referred to in s 73A(2), unless satisfied there are exceptional circumstances: s 73A(1A). The additional conditions available include:
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.
If the court determines not to impose an additional condition, it must record its reasons for doing so, however, the failure to record reasons does not invalidate the sentence: s 73A(1B).
The court must not impose a home detention or community service work condition on an ICO unless an assessment report states the offender is suitable to be the subject of such a condition: s 73A(3). The court may limit the period during which an additional condition is in force: s 73A(4).
Maximum hours and minimum periods for community service work
The maximum number of hours that may be specified for community service work in an additional condition of an ICO are set out in cl 14(1) Crimes (Sentencing Procedure) Regulation 2017:
100 hours for offences with a maximum term of imprisonment of 6 months or less
200 hours for offences with a maximum term of imprisonment exceeding 6 months but not 1 year
750 hours for offences with a maximum term of imprisonment exceeding 1 year.
The minimum period that a community service work condition of an ICO must be in force is set out in cl 14(2):
6 months if the hours of work do not exceed 100 hours
12 months if the hours of work exceed 100 hours but not 300 hours
18 months if the hours of work exceed 300 hours but not 500 hours
2 years if the hours of work exceed 500 hours.
The court may impose further conditions on an ICO but these must not be inconsistent with any standard or additional conditions (whether or not they are imposed on the particular ICO): s 73B.
Offenders’ obligations under ICO conditions
The obligations of offenders subject to the standard ICO conditions are set out in cll 186, 187 Crimes (Administration of Sentences) Regulation 2014: s 82 Crimes (Administration of Sentences) Act. Their specific obligations with respect to home detention, electronic monitoring, curfew, community service work, rehabilitation or treatment, abstention, non-association, and place restriction conditions are set out in cll 189–189G.
Power of Parole Authority and Community Corrections to vary conditions
The Parole Authority may, on application of a community corrections officer or the offender, impose, vary or revoke any conditions of an ICO, including those imposed by the sentencing court: s 81A(1) Crimes (Administration of Sentences) Act. However, the Parole Authority must not vary or revoke a standard condition, or impose or vary any other condition unless the sentencing court could have imposed or varied the condition under Pt 5 Crimes (Sentencing Procedure) Act: s 81A(2). If the Parole Authority revokes an additional condition on an ICO, it must replace it with another additional condition, unless there is already another additional condition in force with respect to the order, or unless there are exceptional circumstances: s 81A(3)–(4).
The Parole Authority must not impose a period of home detention or a condition requiring community service work unless a report prepared by a community corrections officer states the imposition of such a condition is appropriate: s 81A(2)(d).
A condition of an ICO relating to supervision, curfew, non-association and place restriction (ss 73(2)(b), 73A(2) Crimes (Sentencing Procedure) Act) may be suspended by a community corrections officer: s 82A. The factors the community corrections officer must take into account before suspending a supervision condition are set out in cl 189I Crimes (Administration of Sentences) Regulation 2014.
An ICO expires at the end of the sentence to which it relates unless it is sooner revoked: s 83.
Care must be exercised in the administration of the conditions. The capacity to direct the offender must be confined to a legitimate purpose in furtherance of the specific court order: R v Pogson  NSWCCA 225 at . For example, requiring an offender to submit to breath testing where the offender is not subject to a court-ordered condition prohibiting the use of alcohol may be beyond power: R v Pogson at .
[3-650] Multiple orders
Only one “relevant order” can be in force for an offender at the same time for the same offence: s 17F(1). “Relevant order” is defined as an ICO, CCO or CRO: s 17E. If an offender is subject to multiple orders at the same time, an ICO (and its conditions) prevails over a CCO (and its conditions) and a CCO (and its conditions) prevails over a CRO (and its conditions): s 17F(3),(4). Despite this, a standard condition prevails over a condition that is not standard: s 17F(4)(c). For community service work and curfew conditions under multiple orders, see Multiple orders at [3-520].
[3-660] Pronouncement of ICO by court, terms and commencement
The Local Court is not empowered to make an ICO in the offender’s absence: s 25(1)(b) Crimes (Sentencing Procedure) Act 1999.
The form of order is that the court pronounces the offender is sentenced to a term of imprisonment for a particular duration and then directs that it be served by way of an ICO. The court must not set a non-parole period: s 7(2). At the time of sentence, the court must impose on the ICO the standard conditions, additional conditions and any further conditions: s 73.
Unless sooner revoked, the term of an ICO is the same as the term of imprisonment in respect of which the order is made: s 70; s 83 Crimes (Administration of Sentences) Act 1999.
An ICO commences on the date it was made, unless the ICO is made in relation to a sentence of imprisonment that is to be served consecutively, or partly consecutively, with another sentence of imprisonment the subject of an ICO: s 71.
An offender may not be subject to two or more ICOs to be served concurrently or consecutively (or partly concurrently and partly consecutively) where the date at which the new sentence will end is more than 2 years after the date on which it was imposed: s 68(1).
Explaining the order
The court must ensure that all reasonable steps are taken to explain to the offender his or her obligations under the ICO and the consequences that may follow if the offender fails to comply with those obligations: s 17I(1).
A court must cause written notice of the order to be given to the offender and to Corrective Services as soon as practicable after making an ICO: s 17J(1).
[3-670] Breaches of ICOs
Where the Commissioner of Corrective Services or a community corrections officer is satisfied an offender has failed to comply with his or her obligations under an ICO, a community corrections officer may, pursuant to s 163(2) Crimes (Administration of Sentences) Act 1999:
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 breaches to the Parole Authority: s 163(3). In that case, where the Parole Authority is satisfied an offender has failed to comply with his or her obligations under an ICO (s 164(1)), it may, pursuant to s 164(2):
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.
Section 164(6) prescribes certain restrictions on the power of the Parole Authority to vary, revoke or impose conditions following the breach of an ICO. They are the same as those applying where the Parole Authority varies, revokes or imposes conditions generally (without a breach) under s 81A: see ICO conditions at [3-640].
In “Intensive Correction Orders – three years on”, (2013) 25(8) JOB 65, his Honour Judge Paul Cloran set out, in descending order, the reasons why the Parole Authority may revoke an order, including failing to comply with the then mandatory condition to perform 32 hours community service work per month, breach of the requirement to be of good behaviour, being charged with further offences, failing to reside at the approved address, removing an electronic bracelet and using illicit drugs over an extended period of time.
Where an ICO is revoked, a warrant is issued for the offender’s arrest and the sentence being served on the ICO ceases to run. A revocation order takes effect on the date on which it is made or on such earlier date as the Parole Authority thinks fit: s 164A(1). The earliest date on which the revocation order may take effect is the first occasion on which it appears to the Parole Authority that the offender failed to comply with his or her obligations under the order: s 164A(2). If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is extended by the number of days the person was at large after the order took effect: s 164A(3).
[3-680] Federal offences
Sentencing alternatives under State or Territory law are available to federal offenders if prescribed under s 20AB Crimes Act 1914 (Cth) and/or reg 6 Crimes Regulations 1990 (Cth). The Crimes Amendment Regulations 2010 (No 4) (Cth) amended reg 6 Crimes Regulation 1990 (Cth) to enable an ICO to be imposed for a Commonwealth offence.
Section 20AB provides, inter alia, “such a sentence or order may in corresponding cases be passed or made” [emphasis added]. The question that arises is the extent to which the phrase “corresponding cases” in s 20AB can be read to refer to equivalent State offences.
Neither reg 6 Crimes Regulation nor s 20AB exclude specific offences from an ICO. However, s 67(1) Crimes Sentencing Procedure Act 1999 (NSW) purports to exclude a number of Commonwealth offences from an ICO: see Restrictions on power to make ICO at [3-620].
Section 20AC Crimes Act 1914 addresses the circumstance where a Commonwealth offender has failed to comply with an ICO, made under s 20AB(1).
[3-690] ICOs and home detention orders made before 24 September 2018
Existing ICOs made under s 7 Crimes (Sentencing Procedure) Act 1999 before 24 September 2018 are taken to be an ICO subject to:
the standard ICO conditions
any conditions imposed under s 81(3) Crimes (Administration of Sentences) Act 1999 and in force immediately before 24 September 2018
a condition requiring the offender to undertake a minimum of 32 hours of community service work a month as directed by a community corrections officer; and
any other conditions prescribed by the regulations: Sch 2, Pt 29, cl 72.
The conditions imposed on the ICO by the court under s 81 Crimes (Administration of Sentences) Act 1999 as in force before 24 September 2018 cease to apply to the order: Sch 2, Pt 29, cl 72(5).
An offender who is subject to a condition requiring 32 hours of community service work a month is subject to the same obligations as prescribed for the purposes of s 82 Crimes (Administration of Sentence) Act for an offender who is subject to a community service work condition of an ICO: Sch 2, Pt 29, cl 72(3A).
Sections 163 and 164 Crimes (Administration of Sentences) Act (the breach provisions) as in force from 24 September 2018 apply to an ICO in respect of action that may be taken for a breach of the order: Sch 2, Pt 29, cl 72(4).
Existing home detention orders
An existing home detention order made under s 6 before 24 September 2018 is taken to be an ICO subject to the following:
the standard ICO conditions
a home detention condition
any conditions imposed under s 103(1)(b) or (c) Crimes (Administration of Sentences) Act in force immediately before 24 September 2018
any other conditions prescribed by the regulations: Sch 2, Pt 29, cl 71.
The ICO operates for the same term as the home detention order: Sch 2, Pt 29, cl 71(5). A parole order made in relation to the home detention order ceases to have effect from 24 September 2018 and any period during which the offender would have been subject to a parole order is to be served subject to the standard conditions of the ICO only: Sch 2, Pt 29, cl 71(6), (7).
If an assessment report was prepared for an offender for the purposes of former s 78 (suitability for home detention) or s 86 (suitability for community service work) before their repeal, the report is taken to be an assessment report for the purposes of s 17D(2) and (4) and a further report is not required: Sch 2, Pt 29, cl 82A(1), (2).
Appeals in respect of converted orders
An appeal with respect to an ICO made before 24 September 2018 is not affected by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 unless the court hearing the appeal decides to re-sentence the offender, in which case it must do so in accordance with the Act as in force from 24 September 2018: Sch 2, Pt 29, cl 86(2), 86(3).
[3-710] Additional references
P Mizzi, “The sentencing reforms — balancing the causes and consequences of offending with community safety” (2018) 30 JOB 73
P Cloran,“Intensive Correction Orders – three years on” (2013) 25 JOB 65
Judicial Commission of NSW, Local Court Bench Book, 1988–, “Intensive correction orders” at [10-220]
H Donnelly, “Fitting intensive correction orders within the statutory scheme” (2010) 22 JOB 90.