1. What is an ICO?
An ICO is an order of imprisonment for not more than 2 years made by the court. The sentence is to be served by way of intensive correction within the community under the supervision of Corrective Services New South Wales (CSNSW).
From 1 October 2012 Periodic detention in NSW were replaced with Intensive Corrections Orders.
There is no minimum length for an ICO, and no parole period.
An ICO may not be made for a sentence(s) to be served consecutively or concurrently with another sentence of imprisonment subject to an ICO if the date on which the new sentence will end is more than 2 years after the date on which the ICO was imposed. [CSPA s68]
The court can make can make an ICO in the absence of the offender. [CSPA s25]
An ICO is not available for prescribed sexual offences [Crimes (Sentencing and Procedure) Act 1999, s66]
In order to be referred for an ICO assessment the court must be satisfied that:
- The Offender is over 18 years of age;
- A suitable person to serve their sentence by way of intensive correction within the community;
- That it is appropriate in all circumstance that the sentence be served by way of intensive correction within the community; and
- The offender has signed an undertaking to comply with obligations under an ICO
In order to issue an ICO the court must first be satisfied beyond all alternatives that no penalty other than imprisonment is appropriate and that the term of imprisonment will be a period no more than 2 years [CSPA s69(2), R v Hamieh (2010) NSWCCA 189 at 76].
The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served [R v Zamagias (2002) MSWCCA 17 at (26)].
Suitability assessments are routinely undertaken by the Community Compliance and Monitory Service (CCMS). The report, once complete, is sent to the Court for consideration.
The assessment report will specifically address the following factors:
- Any criminal record and likelihood of recidivism;
- Any risks associated with managing the offender in the community;
- Likelihood of offender committing a domestic violence offence;
- Whether the offender will have suitable residential accommodation for the duration of an intensive correction order;
- Whether residents understand and consent to the order;
- Whether the order would place at risk any person living in the residence;
- Alcohol or drug abuse;
- Physical or mental health issues;
- Existence and extent of self-harm risk and the likely impact of an ICO on that risk;
- The impact of the order on children under the age of 18; and
- Public Interest
The report needs to state that in the opinion of the person making the assessment the offender is suitable for an ICO [CSPA s67 (4)].
The court must have regard to the following factors when determining the appropriateness of an ICO:
- Content of assessment report; and
- Any evidence provided by the Commissioner of Corrective Services (CCS) which the court deems necessary and appropriate.
The court may decline to make an order regardless of the outcome of the report. In this instance the court must provide a record of its reasons for making such an Order. [CSPA s67]
Mandatory ICO conditions for Offenders:
- Be on good behaviour and not commit any offences;
- Report to CCS on fixed date;
- Reside only at prescribed premises;
- Not to leave NSW without permission of CCS;
- Not to leave Australia without permission of the State Parole Authority (SPA);
- Receive supervisor for home visits;
- Authorise Doctor or therapist to provide supervisor with relevant information;
- Submit to searches of places or things under offender’s immediate control
- Not to obtain or abuse unlawful drugs;
- Submit to tests for drug and alcohol abuse;
- Not to possess a firearm or offensive weapon;
- Submit to surveillance or monitoring;
- Not to tamper with surveillance equipment;
- Comply with curfew as directed;
- Minimum of 32 hours per week community service work;
- Participate in programs to address offending behaviour as directed ; and
- Comply with all reasonable directions by supervisor
Additional conditions which may be imposed include:
- Accept any direction by supervisor in relation to maintenance of or obtaining employment;
- Authorise contact between employer and supervisor;
- Comply with direction as to kinds of employment in which the offender may not engage;
- Comply with direction not to associate with specified persons;
- Not to consume alcohol; and
- Comply with direction not to go to specified places
LEVELS OF SUPERVISION LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 Curfew Yes Discretionary No No Electronic Monitoring Y Discretionary N N Community work [minimum 32 hrs p/week] Y Y Y Yes, with limited CSNSW spot checks Participation in programs to address offending behaviour as directed by CSNSW Y Y Y Y Drug Testing Y Y Y Y Alcohol testing on work and program sites – and home if non-consumption of alcohol is imposed by court as additional condition Y Y Y Y Minimum face-to-face contact with CSNSW supervisor Weekly Fortnightly Monthly Six-weekly
 Offenders are entitled to work full or part time under an order in addition to their community service obligations
There are two categories for breaching an ICO:
- Includes: Breaking curfew, tampering with a monitoring device or being convicted of a criminal offence
- Result: Revocation of ICO, followed by home detention order or imprisonment.
- Includes: Failing alcohol or drug test, refusing to submit to a test, failing to follow directions, unauthorised absences from programs
- Result: CCS can issue a warning, vary ICO conditions, require offender to attend an additional program to address offending behaviour, impose a stricter curfew, increase reporting frequency or institute electronic monitoring
The CCS has the discretion to extend the ICO for a period, or for a number of periods. Such an extension cannot exceed a total of 90 days; otherwise the ICO must be revoked, resulting in a home detention order or imprisonment. Where the terms of an extension would result in the maximum period of an ICO being exceeded the Commissioner must refer the matter to the State Parole Authority (SPA).
The SPA has the discretion to:
- Determine applications by the CCS for revocation or suspension of an ICO;
- Implement sanctions including a formal warning, variation of an ICO, 7-days home detention or revocation;
- Extend an ICO period for up to 6 months; and
- Reinstate an ICO after it has been revoked.
An ICO may be cancelled if it cannot continue to run through no fault of the offender, for instance due to lack of available community work.
There is a form on the CSNSW website for offenders who wish to apply for a variation or revocation of a condition, or wish to ask the court to impose an additional condition.
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