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:
- The ‘conditional release order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/conditional-release-order/)’ (CRO) now replaces the ‘section 10 bond’ as a non-conviction. The new CRO, however, allows a Magistrate or Judge to now impose more conditions than the previous s10 bond could.
- The ‘community corrections order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/community-correction-order/)’ (CCO) now replaces the ‘section 9 bond’ and ‘community service order’. The new CCO, however, allows a Magistrate or Judge to now impose more conditions than the previous section 9 bond could.
- The new ‘intensive corrections order’ (ICO) replaces the old intensive corrections order by expanding it to allow a Magistrate or Judge to now impose more conditions than what the previous ICO could. We will discuss this in more detail below.
- The ‘suspended sentence’ has now been abolished: The suspended sentence was a penalty option that effectively sentenced an offender to imprisonment which was wholly and immediately suspended upon the offender entering into a good behaviour bond for the same term. This sentencing option proved to be ineffective (http://www.abc.net.au/news/2018-09-23/suspended-sentences-abolished-in-nsw-from-monday/10294654).
What Sentencing Penalties Remain the Same in NSW?
The following sentencing penalties in NSW remain the same:
- The section 10 dismissal (also referred to as section 10(1)(a) under the Crimes (Sentencing Procedure) Act 1999 (NSW)). This penalty option leaves an offender with a non-conviction, without the imposition of any conditions or fine.
- Section 10A: This leaves an offender with a conviction, without the imposition of any conditions or fine;
- Fine: This leaves an offender with a conviction and fine as a penalty.
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:
- Eligibility requirements for an ICO; and
- 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:
- If the Judge or Magistrate first determines that a sentence of imprisonment of no more than two years will be imposed on the offender for a single offence, and 3 years in the case of imposing an aggregate sentence for multiple offences; and
- If the Judge or Magistrate finds that an ICO is more likely to address the offender’s risk of re-offending than prison; and
- The offence must not be any of the following serious offences:
- Murder or manslaughter
- Discharging firearms
- Terrorism, or prescribed sex offences where the victim is less than 16 years old, child abuse material or child pornography offences; and
- Where an assessment report has been obtained expressing that the offender is suitable to serve the sentence as an ICO; and
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’:
- Not to commit further offences; and
- Adhere to being supervised. The supervision is conducted by a community corrections officer.
A Judge or Magistrate, after imposing the above standard conditions, must also impose one of the following ‘additional conditions’:
- Prohibit the offender from going to a specified place or location;
- Prohibit the offender from contacting specified people;
- Requirement that the offender participate and complete treatment or rehabilitation to address any identified issues;
- Require the offender to undergo no more than 750 hours of community service work;
- Prohibit the offender from leaving his/her home between specified hours;
- Require the offender to adhere to being electronically monitored;
- Require the offender to comply with a home detention condition.
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:
- Require the offender to remain at home for no more than twelve hours in a 24 hours period; or
- Give the offender a reasonable direction; or
- Give the offender a formal warning expressing that a referral will be made to the Parole Authority if a further breach occurs; or
- Give the offender an informal warning; or
- Take no action at all; or
- Refer it to the Parole Authority. This may occur if the breach is serious enough. In addition, the community correction officer can also recommend what kind of action that the Parole Authority should take. If it is referred to the Parole Authority, the Parole Authority can do any one of the following if satisfied that an ICO is breached:
- Revoke the ICO, in which case the ICO sentence stops. You must then serve the imprisonment sentence in full time custody; or
- Amend or revoke some of the ICO conditions (except the standard conditions); or
- Impose conditions, including a requirement that the offender stay at home for no more than 30 days and/or electronic monitoring; or
- Give a formal warning without taking any action; or
- Take no action at all.
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).