Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010

 

Preliminary

A new sentencing option, an intensive correction order (ICO), has been introduced by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (the amending Act), which commences on 1 October 2010: Published LW 17 September 2010. Although the new sentencing option is not intended to be a direct replacement for periodic detention, the power of the courts to make periodic detention orders will cease on the commencement of the amending Act. The abolition of periodic detention as a sentencing option does not affect the continuing operation of a periodic detention order made before the repeal: Crimes (Sentencing Procedure) Act 1999, Sch 2 Pt 20 (as amended). Sentences of imprisonment of not more than 2 years can be served by way of an ICO: new s 7(1).

The object of this Special Bulletin is to set out the principal amendments made by the amending Act. It does not replace the text of the amendments, nor does it set out practical matters such as the “roll-out plans”; the phases of implementation; or the various supervision levels that offenders may be placed on during the course of their sentences.

Broadly speaking, Sch 1 of the amending Act amends the Crimes (Sentencing Procedure) Act and Sch 2 amends the Crimes (Administration of Sentences) Act 1999. Schedule 3 purports to amend the Crimes (Sentencing Procedure) Regulation 2005. However, those regulations have been repealed and new regulations have been made: Crimes (Sentencing Procedure) Regulation 2010 (which commenced on 1 September 2010). The 2010 regulations will be amended by the Crimes (Sentencing Procedure) Amendment (Intensive Correction Orders) Regulation 2010: Published LW 6 August 2010 and will also commence on the date the amending Act commences on 1 October 2010. Schedule 4 amends the regulations made under the Crimes (Administration of Sentences) Act, while Sch 5 amends other Acts.

The references below to provisions of the principal Acts and regulations are to provisions as amended by the amending Act and regulation (although the amendments do not commence operation until 1 October 2010).

Stages before an ICO can be considered

An ICO is a “custodial sentence” referred to in Pt 2 Div 2 of the Crimes (Sentencing Procedure) Act. For that reason, the steps or stages required before an order can be imposed are the same as those taken in relation to other alternatives to full-time imprisonment: home detention, periodic detention (repealed) and suspended sentences. It is therefore necessary to revisit the reasoning process that must be undertaken before such an alternative form of imprisonment can be imposed.

The preliminary question to be considered is whether there are any alternatives to the imposition of a sentence of imprisonment. 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 (2005) 159 A Crim R 154 at [70]; R v Hamieh [2010] NSWCCA 189 at [76].

The court then sets the term of imprisonment without regard to the manner it is to be served: R v Douar (2005) 159 A Crim R 154 at [71]; R v Zamagias [2002] NSWCCA 17 at [26]. The availability of an alternative to full-time custody will generally be governed by the length of the term of imprisonment that the court has already determined should be imposed, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. In the case of an ICO, s 69(2) of the Crimes (Sentencing Procedure) Act provides that an offender cannot be referred for assessment “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”.

The third stage is reached only when the length of the sentence of imprisonment has been determined. An important consideration as to whether or not the sentence should be served other than by way of full time imprisonment is whether it “… would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment”: R v Douar (2005) 159 A Crim R 154 per Johnson J at [72], quoted with approval in R v Hamieh [2010] NSWCCA 189 at [76]; see also R v Zamagias [2002] NSWCCA 17 at [28].

Power to make an ICO

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

A court that has sentenced an offender to imprisonment for not more than two years may make an ICO directing that the sentence be served by way of intensive correction in the community: s 7(1).

Although s 7(1) is expressed in the past tense, “[a] court that has sentenced”, s 7(3) 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 “in circumstances in which a court is considering, or has made, an intensive correction order”: s 64. [Emphasis added.]

Restrictions on the power to make an ICO

Division 2 of Pt 5 sets out specific restrictions on the power to make an ICO.

ICO not available for “prescribed sexual offences”

Section 66(1) states that an ICO may not be made in respect of a sentence of imprisonment for a “prescribed sexual offence”. “Prescribed sexual offence” is defined in s 66(2) as an offence under Div 10 or 10A of Pt 3 of the 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 14(1)(a) Crimes (Sentencing Procedure) Regulation 2010.

Suitability and assessment of offender for an ICO

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 two years: s 69(2). If the court considers that a suspended sentence is appropriate, it is unnecessary to refer an offender for assessment for an ICO.

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 14(1) of the Crimes (Sentencing Procedure) Regulation 2010 provides that an offender’s assessment report must take into account and specifically address several matters including: any criminal record of the offender; the likelihood that the offender will re-offend; any risks associated with managing the offender in the community; the likelihood that the offender will commit a domestic violence offence; and whether the offender will have suitable residential accommodation for the duration of an ICO.

A court may make an ICO with respect to an offender’s sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community: s 67(4).

If a court declines to make an ICO despite an assessment report that states that the offender is a suitable person, the court must indicate this to the offender and make a record of its reasons for doing so: s 67(5).

Section 67(1) provides an ICO may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied that:

ICO conditions

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 as amended by the amending 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).

Mandatory conditions

The sentencing court must at the time of sentence impose on an ICO the conditions prescribed by the regulations as the mandatory conditions of an ICO: s 81(2). Clause 175 of the Crimes (Administration of Sentences) Regulation 2008 specifically lists 17 mandatory conditions (a)–(q) “to be imposed by a court under section 81”. These include: the offender is to be of good behaviour and not commit any offence; the offender is to reside only at premises approved by a supervisor; the offender is to submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor; the offender is to undertake a minimum of 32 hours of community service work per month, as directed by a supervisor from time to time; and the offender is to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report.

Additional conditions imposed by the courts

The sentencing court may, at the time of sentence or subsequently on the application of the Commissioner or the offender, impose additional conditions on an ICO, or vary or revoke any additional conditions imposed by it on an ICO: s 81(3).

The court may refuse to entertain an application by the offender under this section if the court is satisfied that the application is frivolous or vexatious: s 81(5). The court may, at its discretion, deal with an application with or without the parties being present and in open court or in the absence of the public: s 81(6).

Additional conditions are provided for by regulation: s 81(4)(a). Clause 176 of the Crimes (Administration of Sentences) Regulation sets out six additional conditions (a)–(f). These include: the offender is to accept any direction of a supervisor in relation to the maintenance of, or obtaining of employment; a condition that prohibits the offender consuming alcohol; and for the offender to comply with any direction not to go to specified places or districts or places of a specified kind.

The court may also impose any other condition that the court considers necessary or desirable for reducing the likelihood of the offender re-offending: s 81(4)(b). However before imposing an additional condition under s 81(4)(b), a court is to consider whether the condition will create a need for additional resources and must not impose the condition unless satisfied that any such additional resources that will be needed are or will be made available: s 81(7).

The court is not permitted to impose any additional conditions, or vary any additional conditions imposed by it, so as to be inconsistent with any of the conditions prescribed by the regulations as the mandatory conditions: s 81(8).

Supervision levels

A Department of Corrective Services officer has advised the Judicial Commission of NSW that all offenders serving an ICO will be placed on various supervision levels during the course of the sentence. Each level will be precisely outlined in a forthcoming Department of Justice and Attorney General publication.

Extension of an ICO — permission for non-compliance

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 six 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).

Breaches of an ICO

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 Commission may: issue 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: s 89(2). 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 amending 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 State Parole Authority for variation, revocation or suspension of an ICO as a last resort: Legislative and Operational Model at [24] A16 (issued by the Sentencing Council and posted on JIRS).

Federal offences

At the time of writing, neither s 20AB of the Crimes Act 1914 (Cth) nor reg 6 of the Crimes Regulation 1990 (Cth) has been amended to enable an ICO to be imposed for a Commonwealth offence.

Suspended sentence breaches and ICOs

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

Pronouncement of an ICO by court

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

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

The form of order will be 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).

The court must fix a date of commencement no later than 21 days after the date on which the order was made except where it is to be served consecutively or partly concurrently with another ICO: s 71.

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.