Changes to NSW Sentencing Options: Broadened Intensive Correction Orders

The NSW Parliament assented to the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (the Act) on 24 October 2017, which amends the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) as it relates to the sentencing options available to magistrates and judges in New South Wales.

The Act will abolish the following sentencing options in their current form:

• Home detention under section 6 of the Sentencing Act,
• Intensive correction orders under section 7,
• Community service orders under section 8,
• Good behaviour bonds with criminal convictions under section 9,
• Good behaviour bonds without convictions under a section 10 dismissal or conditional release order, and
• Suspended prison sentences under section 12.

It will create the following penalty categories in their place:

1. Conditional release orders (which will replace good behaviour bonds without conviction),
2. Community correction orders (which will replace community service orders and good behaviour bonds with conviction under section 9), and
3. Intensive correction orders (which will replace suspended sentences, home detention orders and existing ICOs).

This blog looks at the new regime for Intensive Correction Orders.

Intensive Correction Orders

Existing laws pertaining to Intensive Correction Orders (ICOs) will be abolished and replaced by a regime which broadens the scope of applicable conditions to encompass, among other things, home detention-type orders.

As is presently the case, the power to make ICOs will be contained in section 7 of the Sentencing Act.

The only change to that section will be that the power to make ICOs will arise where a court sentences a person ‘to imprisonment for 1 or more offences’ rather than ‘to imprisonment for not more than 2 years’, as is presently the case.

Section 17 will contain the provisions regarding ‘assessment reports’ sought by the court before deciding whether to make an ICO. As is presently the case, the reports will be prepared by a community corrections officer or, where relevant, a juvenile justice officer.

Section 17D(1) will require a court to obtain a report before making an ICO. Subsection (2) will prohibit the imposition of a home detention condition unless a report has been obtained relating to such a condition, and subsection (2) will require the same in respect of a community service condition.

The remainder of section 17 will deal with situations where multiple orders are imposed on a person, providing among other things that an ICO condition will prevail over a condition of a Community Correction Order (CCO), that a CCO condition will prevail over a condition of a Conditional Release Order (CRO), and that in any case a standard condition will prevail over an additional one.

Part 5 of the Sentencing Act contains the procedural requirements for ICOs. The entire Part will be repealed and replaced by the following rules.

Restrictions on making ICOs

Division 2 of the Part will set out the restrictions on a court’s power to make an ICO.

Section 66 stipulates that the ‘paramount consideration’ when deciding whether to impose an ICO is ‘[c]ommunity safety’, and that when making such a determination, a court is to assess whether an ICO is more likely to address the person’s risk of reoffending than full-time imprisonment.

Section 67 will prohibit the making of an ICO for the following offences:

• Murder or manslaughter,
• Any ‘prescribed sexual offence’, which includes any sexual offence committed against a person under 16, or which includes an element of sexual intercourse, or any child pornography or child abuse material offence,
• Any terrorism offence,
• Any contravention of a serious crime prevention order or public safety order,
• Any offence involving the discharge of a firearm, or
• Any offences that includes an intention, attempt, conspiracy or incitement to commit any of the above offences.

A person who is being sentenced for more than one offence will not be able to receive an ICO if any one of those offences is a prohibited offence.

Section 68 will prohibit a court from imposing an ICO as an alternative to imprisonment for any single offence where it has determined that the applicable period of imprisonment exceeds 2 years.

The court will, however, be empowered to impose an aggregate ICO period of up to 3 years where it is sentencing for more than one offence.

Section 69 will require a court to have regard to the contents of the assessment report, and any other evidence from a community corrections officer that it considers relevant, when deciding whether to make an ICO.

However, the court will not be bound by the assessment report.

Term and commencement of ICOs

Division 3 will deal with the term and commencement date of ICOs.

Section 70 will provide that the duration of the ICO will be the same as the term of imprisonment imposed for the relevant offence, unless the ICO is revoked.

Section 71 will provide that an ICO starts when it is made, unless consecutive (or partly consecutive) sentences are imposed.

Conditions of ICOs

Perhaps the most significant amendments are contained in the new Division 4, which relates to the standard and additional conditions applicable to ICOs.

Section 73 will require a court to impose to impose standard conditions that the person subject to an ICO must not commit an offence for the duration of the order, and must submit to supervision by a community corrections officer.

Section 73A will require a court to impose at least 1 of the following additional conditions:

• Home detention,
• Electronic monitoring,
• Curfew,
• Community service work (up to 750 hours),
• Participation in a rehabilitation program or acceptance of treatment,
• Abstention from alcohol or drugs, or both,
• Non-association with particular persons,
• Prohibition from frequenting or visiting a place or area.

A court may limit the duration of an additional condition; so, for example, it may prescribe a 6 month home detention condition when the duration of the ICO is 2 years.

Section 73B empowers a court to order any ‘further conditions’ at the time of sentencing, provided they are not inconsistent with the standard and additional ones.

Imposing, varying or revoking ICO conditions

The Parole Authority will be empowered under section 81A to impose, vary or revoke ICO conditions post-sentencing upon application by a community corrections officer provided that a court could have imposed the same conditions at the time of sentencing.

This essentially bestows power upon the Parole Authority to override the determination of the sentencing court regarding the conditions appropriate to an offender.

More flexibility but less judicial oversight

The new regime appears to offer greater flexibility to magistrates and judges when tailoring an ICO.

That said, it is notable that the option of a ‘suspended prison sentence’ will no longer be available to the courts.

And it is a cause for concern that the Parole Authority will be empowered to add, vary or revoke ICO conditions post-sentencing on application by a community correction officer – a situation which enables a court’s decision regarding the conditions appropriate to a particular offender to be overridden.

The changes will come into effect on a day to be appointed by proclamation, which is expected to be sometime in September 2018.

The impact (if any) of the new regime remains to be seen.