New NSW Sentencing Penalty Introduced: The New ‘Intensive Corrections Orders’

https://www.criminaldefencelawyers.com.au/blog/new-nsw-sentencing-penalty-introduced-the-new-intensive-corrections-orders/


On 24 October 2017, Parliament in NSW assented to the amending legislation which effectively changed the Crimes (Sentencing Procedure) Act 1999 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/1999/92).

As of 24 September 2018, three major new sentencing options were introduced into NSW. A Magistrate or Judge can now impose any one of these new sentencing or penalty options for traffic and criminal offences in NSW.

Main Focus of the New Sentencing Options: Community Treatment for Offenders

The changes are significant and aim to simplify the sentencing options. It also attempts to be more effective by reducing re-offending to protect the community by utilising community-based treatment.

The new sentencing options attempt to do this by identifying factors that contributed to the offender committing the offence in the first place, such as mental health, drugs or alcohol.

After identifying these factors, the Judge or Magistrate can then better cater an appropriate penalty option (by imposing appropriate conditions that the new law now provides) best suited to help an offender to address the contributing factor(s) with community-based treatment.

A Recap of our Previous Blogs on the New Sentencing Penalties

Our previous two blogs have outlined two of the three new sentencing options that a Magistrate or Judge can impose for all traffic and criminal offences in NSW.

To recap, the previous two blogs have outlined how the new ‘community corrections order (https://www.criminaldefencelawyers.com.au/blog/new-sentencing-option-introduced-in-nsw-community-correction-orders/)’ has now replaced the old ‘section 9 bond’ and ‘community service order’.

This blog will now outline the third of the 3 new sentencing options in NSW, ‘the intensive corrections order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/intensive-correction-order/)’, which commenced as of 24 September 2018.

What are the Major Changes to the Sentencing Penalties in NSW?

The major changes to the NSW sentencing penalties include the following:

What Sentencing Penalties Remain the Same in NSW?

The following sentencing penalties in NSW remain the same:

The New ‘Intensive Corrections Order’

The new ‘intensive corrections order’ (ICO) now replaces the old ICO sentencing penalty in NSW. It gives a Judge or Magistrate access to more conditions to pick from than the old ICO ever did.

An ICO is a type of imprisonment sentence that a Judge or Magistrate can impose for serious traffic and criminal offences. It’s considered as an alternative to full time imprisonment and will leave an offender with a criminal conviction.

Although an ICO is an imprisonment sentence, the offender doesn’t actually go to jail. Instead the offender will be subject to strict conditions with supervision.

An ICO penalty sentence is one step away from a full-time prison sentence.

A Judge or Magistrate can only impose an ICO as a penalty if the following two criteria are satisfied:

  1. Eligibility requirements for an ICO; and
  2. There are conditions available to be included into the ICO to appropriate address an offender’s risks of re-offending.

When a Judge or Magistrate decides to impose an ICO on an offender, the Judge or Magistrate must impose all of the standard conditions and one of the additional conditions available for ICO’s.

Eligibility Requirements for an ICO

A Judge or Magistrate can only consider imposing an ICO as a penalty on an offender if each of the following are first satisfied:

What are the ‘Standard Conditions’ and ‘Additional Conditions’ of an ‘Intensive Corrections Order’?

A Judge or Magistrate is required, when sentencing an offender to an ICO, to attach both of the following ‘standard conditions’:

A Judge or Magistrate, after imposing the above standard conditions, must also impose one of the following ‘additional conditions’:

If an assessment reports comes back saying that an offender is unsuitable for community service or home detention due to physical injuries or because the victim resides with the offender, the Judge or Magistrate will not impose those conditions.

An ICO has more conditions available for a Court to impose on an offender than a CCO or CRO.

ICO and Domestic Violence Offences

The law takes domestic violence extremely seriously.

Where it involves a domestic violence offence and the victim will live with the offender, a Judge or Magistrate can only impose an ICO on an offender if appropriate conditions are available to adequately protect the victim.

A home detention condition will certainly not be allowed to be imposed in those circumstances.

Breaching an ‘Intensive Corrections Order’

Breaching an ICO occurs when an offender fails to comply with any of the imposed conditions attached to an ICO. If this happens, the offender’s community corrections officer can do any 1 of the following:

Unlike the other sentencing options, the above is governed by the Crimes (Administration of Sentences) Act 1999 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/cosa1999348/).

Appealing the Parole Authority’s Decision to Revoke the ICO

An offender who’s ICO has been revoked by the Parole Authority can apply under section 165 of the Crimes (Administration of Sentences) Act 1999 (NSW) to request that the Parole Authority ‘reinstate’ your ICO.

If the Parole Authority agrees to reinstate an offender’s revoked ICO, the offender will then be immediately released from custody. This will require the offender to then serve the rest of the sentence with the ICO conditions in force.

When Can I Appeal the Parole Authority’s Decision to Revoke the ICO?

An offender must serve at least one month in custody before he/she can apply for the Parole Authority to reinstate the revoked ICO.

When making this application, the offender needs to state what he/she has or his now doing to convince the Parole Authority that there will likely be no more breaches of the ICO if the ICO is successfully reinstated.

Before a revoked ICO can be reinstated, the Parole Authority will normally first adjourn the offender’s case to obtain a new ‘assessment report’.

This report will express whether or not the offender is suitable for an ICO.

The offender’s community corrections officer will interview the offender for the purposes of drafting this report for the Parole Authority.

The revoked ICO usually gets reinstated if the assessment report expresses that the offender is suitable for an ICO.

Can an ‘Intensive Corrections Order’ be Changed?

An ICO can be changed after it is imposed by the Court. It can be changed to add, change or revoked any of the conditions.

Either the offender or the community corrections officer may apply to change the ICO conditions under section 81A of the Crimes (Administration of Sentences) Act 1999 (NSW).

Can an ‘Intensive Corrections Order’ be Suspended?

Either the supervision condition or any of the ‘additional conditions’ of an ICO can be suspended by the community corrections officer.

The community corrections officer can suspend these conditions for a specified period of time (or indefinitely) under section 82A of the Crimes (Administration of Sentences) Act 1999 (NSW).


Related Articles

  • Spent Convictions (https://www.criminaldefencelawyers.com.au/blog/spent-convictions/)

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