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.
The changes made 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 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 “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.
An ICO cannot be backdated: see Pronouncement of ICO by court, terms and commencement at [3-660].
ICOs made before 24 September 2018 continue in operation but with revised conditions.
Home detention orders made before 24 September 2018 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
See also [3-300] Penalties of imprisonment.
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 when “a court is considering, or has made, an intensive correction order”: s 64. [Emphasis added.] In R v Fangaloka  NSWCCA 173 at , Basten JA concluded that there was no requirement to consider whether to direct that a sentence of imprisonment be served by way of ICO in every case that meets the requirements of Pt 5. McCallum JA agreed in Wany v DPP  NSWCA 318 (Meagher JA and Simpson AJA agreeing) observing, at , that the text of s 64 supported that view. However, the obligation to consider making an ICO may be enlivened where a cogent argument is advanced for taking that course: Wany v DPP at .
[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); see R v Fangaloka  NSWCCA 173 at .
A court cannot manipulate pre-sentence custody to bring 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, making an ICO requires a sentencing court to follow a three stage process before directing that the sentence can be served in that way: R v Fangaloka  NSWCCA 173 at ; Mandranis v R  NSWCCA 97 at –.
First, 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  NSWCCA 455 at ; R v Hamieh  NSWCCA 189 at .
Second, if a sentence of imprisonment is appropriate, the court determines the length of sentence without regard to how it is to be served: R v Douar at ; R v Zamagias  NSWCCA 17 at ; Zreika v R  NSWCCA 44 at . It is preferable for the court to articulate its conclusion as to the appropriate term: R v Assaad  NSWCCA 182 at . It is inappropriate to consider how the sentence will be served before determining its length: R v Ryan  NSWCCA 394 at , .
The court must then consider whether any alternative to full-time imprisonment should be imposed: R v Zamagias at ; R v Foster  NSWCCA 215 at ; Campbell v R  NSWCCA 87 at , . The appropriateness of an alternative option depends on various factors, including whether such an alternative results in a sentence that reflects the objective seriousness of the offence and fulfils the purposes of punishment. Sight should not be lost of the fact that the more lenient the alternative the less likely it will do so: R v Zamagias at ; R v Hamieh at ; R v Douar at . It is preferable to make clear that such alternatives have been considered and, if necessary, explain why they are not appropriate, although a failure to do so is not erroneous: Casella v R  NSWCCA 201 at –; see also Campbell v R  NSWCCA 87 at .
The third step of considering whether an alternative to full-time imprisonment should be imposed does not equate to an express obligation to consider whether it is appropriate that the sentence be served by way of an ICO. Neither s 7 nor Pt 5 of the Act should be construed as obliging the court to consider whether it is appropriate that a sentence of less than 2 years be served by way of an ICO: R v Fangaloka at -; Karout v R  NSWCCA 253 at –. In R v Fangaloka at , Basten JA (Johnson and Price JJ agreeing) addressed the broader implications of such an approach observing that:
If there were such an obligation, the Local Court (where the power to impose imprisonment for an individual offence is limited to 2 years) would be required to consider imposing a sentence by way of ICO in every case in which imprisonment was appropriate.
However, an obligation to consider making an ICO may be enlivened where a cogent argument is advanced for taking that course: Wany v DPP  NSWCA 318 at ; Blanch v R  NSWCCA 304 at –.
Inherently lenient or a substantial punishment?
An ICO has the capacity to operate as substantial punishment, but can also reflect a significant degree of leniency because it does not involve immediate incarceration: R v Pullen  NSWCCA 264 at ; R v Pogson  NSWCCA 225 at ; Whelan v R  NSWCCA 147 at ; see also R v Fangaloka at .
In R v Pullen the court concluded that ICO’s under the new scheme still involved substantial punishment given the multiple mandatory obligations attached to the standard conditions (see Crimes (Administration of Sentences) Regulation 2014, cll 186, 187 and 189) and that the degree of punishment involved, and its appropriateness in a particular case, should be assessed having regard to the number and nature of conditions imposed. In some cases, an ICO could be more onerous because of the significant number of obligations prescribed by the regulations: R v Pullen at .
In R v Fangaloka, the court, when discussing the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO, observed at ;
there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of imprisonment.
[3-632] Mandatory considerations when determining whether to impose ICO
Community safety must be the court’s paramount consideration when determining whether to make an ICO: s 66(1) Crimes (Sentencing Procedure) Act 1999. Such consideration is mandatory, regardless of the weight it is ultimately given: Wany v DPP  NSWCA 318 at , ; R v Fangaloka  NSWCCA 173 at . This does not require express reference to s 66, but it must be apparent, even if by implication, that consideration has been given to ss 66(1) and (2): Blanch v R  NSWCCA 304 at –; Mourtada v R  NSWCCA 211 at ; . The obligation to consider s 66 only arises when the court is considering whether the sentence can be served by way of an ICO. If the proposed sentence exceeds 2 years, in the case of a sentence for an individual offence, or 3 years where an aggregate sentence is being contemplated, there is no requirement to consider s 66: s 68; Cross v R  NSWCCA 280 at ; .
While community safety can operate in different ways in different circumstances, the purpose of s 66 is “merely to ensure that the court does not assume that full time detention is more likely to address a risk of reoffending than a community-based program of supervised activity”: R v Fangaloka at ; Mourtada v R at .
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). This requirement recognises community safety is not achieved simply by incarcerating an offender, but that incarceration may have the opposite effect; the concept of community safety is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community: R v Pullen  NSWCCA 264 at . Consideration of specific deterrence also plays an important role in making the assessment required by s 66(2): Mourtada v R at –; .
Having reached a conclusion favouring an ICO under s 66(2), a sentencing court retains a discretion to refuse to make such an order. Of this, McCallum JA said, in Wany v DPP, at :
So much is made plain by s 66(3); and see the remarks of Basten JA in Fangaloka at . But the point of the section is to require the sentencing court to consider that question without any preconception in favour of incarceration as the only path to rehabilitation.
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).
When deciding whether to make an ICO, the court must also consider the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act, any relevant common law principles, and may consider any other matters thought relevant: s 66(3).
Whether s 3A and other considerations subordinate to community safety
There is controversy as to whether or not community safety, made the “paramount consideration” by s 66(1), has primacy over other relevant considerations, including the purposes of sentencing in s 3A.
In R v Pullen at  the court held that prioritising community safety this way necessarily meant other considerations, including those in s 3A, became subordinate. This was subsequently described in Mandranis v R  NSWCCA 97 as the “inescapable consequence” of the clear language of s 66(1) — although only at the point of considering whether to make an ICO. The purposes of sentencing in s 3A will have already been taken into account when determining the length of the sentence: Mandranis v R at –.
By contrast, the court in R v Fangaloka at  concluded it would be wrong to treat every consideration other than the means of addressing the risk of reoffending as subordinate. The obligation to consider the likelihood of a particular form of order addressing the offender’s risk of re-offending, (found in s 66(2)) was said not to derogate from either the purposes of sentencing in s 3A or other relevant matters: at .
In Karout v R  NSWCCA 253 at , Fullerton J (Hoeben CJ at CL agreeing) addressed the relationship between ss 3A and 66 as follows:
… were the legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing courts a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender’s risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed.
Controversy concerning a restrictive interpretation of s 66(2)
Cases since R v Fangaloka have expressed concern about what was described by Basten JA (Johnson and Price JJ agreeing) in R v Fangaloka at  as “an alternative reading of s 66” which was “restrictive rather than facilitative”. His Honour said:
Thus, the paramount consideration in considering whether to make an ICO is the assessment of whether such an order, or fulltime detention, is more likely to address the offender’s risk of reoffending. That is, unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight. [Emphasis added.]
In Casella v R  NSWCCA 20 at , Beech-Jones J (Bathurst CJ and N Adams J agreeing) expressed “significant doubts” about the correctness of the emphasised statement, observing “[n]othing in s 66 purports to operate as a prohibition to that effect”: see also Wany v DPP at  (McCallum JA; Simpson AJA agreeing, Meagher JA not deciding) and Mandranis v R at  (Simpson AJA; Garling and N Adams JJ agreeing) which support this proposition.
Arguably, however, the impugned comments in R v Fangaloka do not represent Basten JA’s concluded view on this issue as his Honour went on to state at :
The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender’s risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [Emphasis added].
In Mourtada v R  NSWCCA 211, Basten JA, after acknowledging the controversy resulting from his observations at  of R v Fangaloka, went on to say:
No doubt the judgment could have been more clearly expressed, but the view accepted at - did not include the proposition that a positive favourable opinion was required before an ICO should be imposed. Rather, a more nuanced approach was adopted to the weighing of the various considerations required to be taken into account under s 66. At  the reasoning noted that the purpose of s 66 was “to ensure that the court does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity.” The sentencing court was not required to favour an ICO over full-time custody but it was required to have specific regard to community protection and to bear in mind that short sentences were not necessarily effective as a means of deterring further offending.
An application for special leave to appeal against the “restrictive” interpretation of s 66 was refused by the High Court on the basis it had no prospect of success: Fangaloka v The Queen  HCASL 12.
[3-634] ICOs available for sentences of 6 months or less
Nothing in s 5(2) or Pt 5 of the Crimes (Sentencing Procedure) Act 1999 precludes imposing an ICO for a sentence of 6 months or less: Casella v R  NSWCCA 201 at ; . In Casella v R, the applicant’s appeal was allowed and he was re-sentenced to 6 months imprisonment which the court directed was to be served by way of an ICO. Beech-Jones J, with whom Bathurst CJ and N Adams J agreed, concluded that the statement in R v Fangaloka at  that “in practice, Pt 5 is unlikely to be applied to very short sentences (for 6 months or a lesser period)” should not be regarded as having any binding effect on either the CCA or lower courts as this issue was not essential to the outcome in that case: at .
[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).
If a sentence of imprisonment has been imposed and the court then requests an assessment report for the purpose of considering whether the sentence should be served by way of an ICO, the referral acts as a stay on the sentence and the offender should either be remanded in custody or granted bail: s 17C(2). If the offender subsequently fails to appear, the court may issue a warrant: Bail Act 2013, s 77A.
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).
It is important to comply with the mandatory requirements of s 17D(4) as that will enable proper consideration of the appropriate sentence: RC v R; R v RC  NSWCCA 76 at –. 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  NSWCCA 44 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). In Casella v R  NSWCCA 201, the fact that the applicant had been on conditional bail while his appeal was pending was found to be an exceptional circumstance for the purposes of s 73A: at . 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 from a community corrections officer states that imposing 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 to be taken into account before suspending a supervision condition are found 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 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.
The Local Court cannot make an ICO in the offender’s absence: s 25(1)(b) Crimes (Sentencing Procedure) Act 1999.
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 must commence on the date it is made (unless it 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. It cannot be backdated: Mandranis v R  NSWCCA 97 at –; R v Edelbi  NSWCCA 122 at –. The term of the ICO may be reduced for pre-sentence custody to enable the ICO to commence on the day that sentence is imposed: Mandranis v R at ; see also [12-500] Counting pre-sentence custody.
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 the ICO obligations and the consequences of a failure to comply: 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].
Where an ICO is revoked, a warrant is issued for the offender’s arrest and the sentence 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
Judicial Commission of NSW, Local Court Bench Book, 1988–, “Intensive correction orders” at [16-340]
H Donnelly, “Fitting intensive correction orders within the statutory scheme” (2010) 22 JOB 90.