Given that an ICO is considered as 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 of the [Crimes (Sentencing Procedure) Act]”: R v Tannous per Basten JA at [21]. Although one of the purposes of ICOs is to reduce the risk of re-offending, this does not confine the power to impose an ICO: R v Pogson at [99]. The other purposes of sentencing in s 3A(a)–(g) Crimes (Sentencing Procedure) Act 1999, such as “accountability of an offender” and denunciation, are relevant: R v Pogson at [98]. The statement of Simpson J in R v Boughen (2012) 215 A Crim R 476 at [110] that the courts may have lost “a vehicle by which to express denunciation” by the abolition of periodic detention and that ICOs should not be used as a substitute has to be read subject to R v Pogson at [108] referred to above. The imposition of an ICO, in R v Glynatsis (2013) 230 A Crim R 99 at [74], 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.

Section 66(1) provides that an ICO may not be made in respect of a sentence of imprisonment for a “prescribed sexual offence” or with respect to an aggregate sentence of imprisonment with respect to two or more offences, any one of which is a prescribed sexual offence. “Prescribed sexual offence” is defined in s 66(2) as an offence under Div 10 or 10A of Pt 3 Crimes Act 1900, being: an offence where the victim is under 16 years of age, or an offence where the victim is any age and which includes sexual intercourse (as defined by s 61H).

There is no express eligibility exclusion for offenders with a certain criminal history as is the case for home detention. The offender’s criminal record can be taken into account in the assessment report: cl 15(1)(a) Crimes (Sentencing Procedure) Regulation 2017.

The power to impose an ICO is not confined or restricted to offenders who are in need of rehabilitation and are at risk of re-offending: R v Pogson (2012) 82 NSWLR 60 at [99], [105]. The statements in R v Boughen (2012) 215 A Crim R 476 at [110] and R v Agius [2012] NSWSC 978 at [103]–[116] to the contrary were disapproved in R v Pogson. It is not necessary for a court to identify a need for “correction” of an offender before exercising the power to impose an ICO: R v Pogson at [96]. Although one of the purposes of ICOs is to reduce the risk of re-offending, this does not mean that the other purposes of sentencing in s 3A(a)–(g) of the Act — which include “accountability of an offender” and denunciation — are irrelevant: R v Pogson at [98].

The fact that the imposition of an ICO on a person may not be a productive or effective use of resources (see R v Aguis at [104]–[105]), is a matter relevant to the discretionary selection of the sentencing option: R v Pogson at [104]. However, it is not a circumstance which disqualifies offenders from eligibility for an ICO: R v Pogson at [104]. In each case, the court must make an assessment of an offender for the purpose of determining whether an ICO is the appropriate sentence: R v Pogson at [107].

Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to their suitability for intensive correction in the community: s 69(1). This course is not permitted unless the court is satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years: s 69(2). If the court considers from the outset that a suspended sentence is appropriate, it is unnecessary to refer an offender for assessment for an ICO. However, if the court decides not to impose a suspended sentence and refers the offender for assessment, there is no statutory impediment to the court reconsidering the option of a suspended sentence.

An offender who has been referred for assessment for intensive correction under s 69 is not to be referred for assessment for home detention in relation to the same sentence of imprisonment unless the court has decided not to make an ICO with respect to that sentence: s 80(1A).

In deciding whether or not to make an ICO, the court is to have regard to the contents of the assessment report on the offender and such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order: s 67.

When an offender is referred for assessment, the Commissioner of Corrective Services is to investigate and report to the court on the matters referred to in s 67(1) and such other matters as the regulations require: s 70(1). An offender’s assessment report must take into account and specifically address the matters prescribed by the regulations, and may indicate the nature of any conditions that it would be appropriate for the court to impose on an ICO if such an order is made: s 70(2). Clause 15(1) Crimes (Sentencing Procedure) Regulation 2017 provides that an offender’s assessment report must take into account and specifically address several matters. They are listed (a)–(j) and include:

Schedule 2 of the amending Act inserts a new Pt 3 in the Crimes (Administration of Sentences) Act. Unless otherwise stated, the provisions cited below refer to the Crimes (Administration of Sentences) Act. Part 3 deals with the general obligations of offenders (Div 1), permission for non-compliance with work or reporting requirements (Div 2) and breaches of ICOs (Div 3).

An ICO is subject to any conditions imposed by the sentencing court: s 81(1).

Corrective Services NSW has produced an ICO brochure. It sets out how the ICO works. Offenders are managed by four levels of supervision with conditions. These are set out in a Table in the brochure as follows:

© State of New South Wales through the Corrective Services NSW

The ICO brochure states on p 3:

The Commissioner may grant permission for the offender to not comply with a work or reporting requirement: s 85(1). The Commissioner may give such directions to the offender as the Commissioner determines to be necessary to ensure that the offender will undertake work or engage in an activity or program to the extent necessary to make up for the work, activity or program avoided as a result of the permission granted: s 86(1).

The sentencing court may, on the application of the Commissioner, extend the offender’s ICO by such period as the court considers necessary and appropriate for ensuring that the offender complies with a direction of the Commissioner under this section: s 86(3).

In determining an application to extend an offender’s ICO, the sentencing court is to give consideration to the following: any hardship likely to be experienced by the offender if the order is extended; the likelihood of the offender’s ICO being revoked if the order is not extended and any hardship likely to be experienced by the offender as a result; and such other matters as the court considers relevant: s 86(4).

An ICO cannot be extended if the term of the sentence to which the order relates has ended: s 86(5).

The power of the sentencing court to extend an ICO is limited to one extension of no more than 6 months: s 86(6).

If an ICO is extended, the term of the sentence to which the order relates is extended by the same period: s 86(7).

The Act also sets up an ICO Management Committee with the functions of, inter alia, providing advice and making recommendations to the Commissioner in connection with the case management of offenders who are subject to ICOs: s 92. The object of the ICO Management Committee is to promote consistency in breach reports and to ensure that matters are only referred to the Parole Authority for variation, revocation or suspension of an ICO as a last resort: Intensive Corrections Order (ICO) — Legislative and Operational Model at [24] A16 (issued by the Sentencing Council and posted on JIRS).

Breaches of an ICO are dealt with by the Commissioner of Corrective Services and the Parole Authority under ss 88–91. The courts do not deal with breaches. Where an offender breaches an ICO, the Commissioner may impose a formal warning; a sanction in the form of a more stringent application of the conditions; or, finally, the Commissioner can decide to refer serious breaches to the Parole Authority: ss 89(2), (3). That body can, inter alia, impose a period of up to 7 days home detention on the offender or revoke the ICO with the consequence that the sentence of imprisonment is served as full-time custody: s 90.

The Parole Authority may, on its own initiative or on the recommendation of the Commissioner, make an order revoking an ICO if it is satisfied that the offender:

The Parole Authority may also revoke an offender’s intensive correction order on the recommendation of the Commissioner if it is satisfied that health reasons or compassionate grounds exist that justify its revocation: s 163(2).

In “Intensive Correction Orders – three years on”, (2013) 25(8) JOB 65, his Honour Judge Paul Cloran sets out, in descending order, the reasons why the Parole Authority may revoke an order, including failing to comply with the condition to perform 32 hours community 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 arrest of the offender 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 164(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 164(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 164(3).

Sentencing alternatives under State or Territory law are available if prescribed under s 20AB Crimes Act 1914 and/or reg 6 Crimes Regulations 1990 (Cth). The Crimes Amendment Regulations 2010 (No 4) (Cth) amended reg 6 Crimes Regulation 1990 to enable an ICO to be imposed for a Commonwealth offence. An issue arose in R v JW (unrep, 4/6/12, NSWDC) before Jeffreys DCJ as to whether an ICO could be imposed for the offence of procure a person under 16 for sexual activity (s 474.26 Criminal Code (Cth)). An ICO cannot be imposed for the equivalent State offence (s 66EB Crimes Act 1900) because it is a “prescribed sexual offence”: see [3-630]. 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 whether by the use of the phrase “corresponding cases” in s 20AB can be read to refer to equivalent State offences and therefore preclude s 474.26 offences. Regulation 6 Crimes Regulation 1990 (Cth) does not exclude any offences from an ICO.

Section 99(2) Crimes (Sentencing Procedure) Act was amended so that an ICO can be imposed following the revocation of a good behaviour bond for a suspended sentence.

Unless otherwise stated, the provisions cited below refer to the Crimes (Sentencing Procedure) Act.

The Local Court is not empowered to impose an ICO if the offender is absent: s 25(1)(b).

The form of order is similar to other alternative forms of imprisonment whereby the court pronounces that 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).

An ICO commences on the date on which it is made: s 71(1). An ICO may be ordered to commence on a date other than the one on which it is made if it is to be served consecutively, or partly consecutively, with some other sentence of imprisonment the subject of an ICO: s 71(2). An ICO is not invalidated merely because it specifies a commencement date that does not comply with the requirements of s 71. Subsection (2) was inserted to correct the erroneous repeal of the subsections by Sch 1.7 of the Courts and Other Justice Portfolio Legislation Amendment Act 2015.

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 two years after the date on which it was imposed: s 68(1).

The court must ensure that all reasonable steps are taken to explain to the offender the offender’s obligations under the ICO and the consequences that may follow if the offender fails to comply with those obligations: s 72.

An ICO cannot be made until the offender has signed an undertaking to comply with the offender’s obligations under the ICO: s 67(1).

A court must cause written notice of the order to be given to the offender and to the Commissioner of Corrective Services as soon as practicable after making an ICO: s 73.

The following are additional references: