On 1 October 2010 there was a significant change to the sentencing law of New South Wales. On this day Periodic Detention ceased to be a sentencing option in New South Wales and a new community sentencing option called “An Intensive Correction Order” became available. This change is contained in the Crimes (Sentencing Procedure) Act 1999 (Section 7 and Part 5).
An Intensive Correction Order is an order of imprisonment of not more than 2 years made by a Court, which directs that the sentence is to be served by way of intensive correction in the community. An Intensive Correction Order is served in the community under the strict supervision of the Corrective Services NSW.
Periodic Detention Orders were for sentences of similar duration which could then be served by way of “weekend” or “mid-week” detention. Persons who were sentenced to periodic detention would enter a facility run by the Corrective Services on a Friday evening in remain in that facility and be released on a Sunday evening (stage 1) and with reduced time in the facility as one progressed to stage 2.
A person sentence to an Intensive Correction Order may have conditions imposed which include:
- Reside only at premises approved by the Probation and Parole Supervisor;
- To be subject to random unannounced home visits;
- To submit to searches;
- To be subject to drug and alcohol testing;
- To be subject to electronic monitoring; and
- Comply with curfews.
One of the particular conditions that applies to Intensive Correction Orders is that the offender is required to undertake a minimum of 32 hours of community service work per month and is required to engage in activities addressing factors associated with their offending behaviour.
By reason of a decision of the Court of Criminal Appeal in New South Wales R v Boughen: R v Cameron (2012) NSW Court of Criminal Appeal 17, reasons behind a Court determining as to whether or not an Intensive Correction Order was applicable to a particular offender were defined. They were defined to require a Court to find that there was a need for rehabilitation of the offender before a Court could impose such an order.
In R v. Boughen: R v. Cameron, above sighted, it involved two persons sentenced with respect to conspiracies to defraud the Commonwealth. There both offenders were convicted over the evasion of tax and both were persons who were of prior good character and that there was little prospect of reoffending in the future and hence because of that lack of prospect and because of the nature of the allegations there was found by the Court of Criminal Appeal that there was no need then for rehabilitation and as such one of the necessary requirements to be found before the Court could consider an Intensive Correction Order was not available.
This decision is most important because an Intensive Correction Order was an alternative to full time imprisonment and different types of offences where the Court may consider a full time imprisonment but find that there is a need for rehabilitation and that the appropriate sentence to be imposed is of 2 years or less then in such a case the Court can fix a sentence of an Intensive Correction Order but simply because rehabilitation is not found to be factor then that sentencing option is no longer available and hence if a Court considered initially that a gaol sentence was appropriate then that would be the only sentence which could then be imposed.
As a solicitor who practice largely as an advocate in criminal law then it is very important that myself, and solicitors and practitioner advocates in the criminal law, be aware of the sentencing rules and seek to establish, to the satisfaction of the sentencing Judge/Magistrate that rehabilitation is a very much live issue and that if a sentence of imprisonment of 2 years or less is being contemplated then because of the need for rehabilitation that an Intensive Correction Order could be considered as the appropriate sentence to be imposed.
This article was written by Michael Kirby, a solicitor who left Adams & Partners in 2014.