INTENSIVE CORRECTION ORDERS02-Nov-2011
Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 2/11/2011
The Crimes (Sentencing Legislation) Amendment (Intensive Corrections Orders) Bill 2010 which introduced the sentence known as Intensive Correction Orders (‘ICO’) was assented to on the 28th June 2010. Upon the introduction of Intensive Correction Orders, Periodic Detention was abolished. The government’s aims at the time of introduction of this sentence are set out below in the second reading speech – however, essentially this sentence endeavours to rehabilitate offenders with a community based option.
The sentence of an Intensive Corrections Order is only available where the court has sentenced a person to imprisonment for a period of not more than 2 years and where the offence is not a prescribed sexual offence (see legislation below). Prior to being sentenced to such an order the offender must be assessed as suitable to undertake such an order (ss67, 69 and 70 of the Crimes (Sentencing Procedure) Act 1999 – ‘the Act). The assessment criteria for an ICO is set out in reg. 14 of Crimes (Sentencing Procedure) Regulation 2010 below. The regulations also impose a number of mandatory conditions on any Intensive Corrections Order including a minimum of 32 hours community service per month (see r175(o) Crimes (Administration of Sentences) Regulation 2008 below).
As to the amount of supervision or restrictions imposed by Probation and Parole depends upon which level the offender is assessed at, between 1 to 4. The levels are determined by the supervising officer according to the offender’s behaviour and compliance with the conditions of the ICO. As to the difference in levels, level 1 involves a curfew and electronic monitoring and level 4 there is no curfew and no electronic monitoring. As to the amount of hours worked – offenders may complete zero hours of work in one week and 16 hours of work in the next as long as a minimum of 32 hours work per month is completed for the duration of the order. It should also be noted that an offender may be required to complete more than 32 hours of work per month eg. if the offender is unemployed. Any programs the offender is directed or required to complete is also in addition to completing the minimum of 32 hours of work per month.
Crimes (Sentencing Procedure) Act 1999
7 Intensive correction orders
(1) A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community.
(2) If a court makes an intensive correction order directing that a sentence be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.
(3) This section is subject to the provisions of Part 5.
66 Intensive correction not available for certain sexual offences
(1) An intensive correction order 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 2 or more offences, any one of which is a prescribed sexual offence.
(2) In this section, "prescribed sexual offence" means:
(a) an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900 , being:
(i) an offence the victim of which is a person under the age of 16 years, or
(ii) an offence the victim of which is a person of any age and the elements of which include sexual intercourse (as defined by section 61H of that Act), or
(b) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraph (a), or
(c) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition, or
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).
67 Suitability of offender for intensive correction order
(1) An intensive correction order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied:
(a) that the offender is of or above the age of 18 years, and
(b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and
(c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and
(d) that the offender has signed an undertaking to comply with the offender’s obligations under the intensive correction order.
(2) In deciding whether or not to make an intensive correction order, the court is to have regard to:
(a) the contents of the assessment report on the offender (prepared under section 70), and
(b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order.
(3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report.
(4) A court may make an intensive correction order 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.
(5) If a court declines to make an intensive correction order with respect to an offender’s sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so.
(6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5).
68 Concurrent and consecutive sentences
(1) An intensive correction order may not be made in respect of a sentence of imprisonment (a "new sentence") to be served concurrently or consecutively (or partly concurrently and partly consecutively) with any other sentence of imprisonment the subject of an intensive correction order (an "existing sentence") if the date on which the new sentence will end is more than 2 years after the date on which it was imposed.
(2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section.
(3) This section does not limit the operation of section 58.
69 Referral of offender for assessment
(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.
(2) A court is not to refer an offender for such an assessment unless 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.
70 Assessment of suitability
(1) 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 section 67 (1) and such other matters as the regulations may require.
(2) An offender’s assessment report:
(a) must take into account, and specifically address, the matters prescribed by the regulations, and
(b) may indicate the nature of any conditions that it would be appropriate for the court to impose on an intensive correction order if such an order is made.
(3) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part.
71 Commencement of sentence
(1) Having made an intensive correction order in relation to a sentence of imprisonment, a court is to fix the date of commencement of the sentence so that the date of commencement is no later than 21 days after the date on which the order was made.
(2) Subsection (1) does not apply to a sentence of imprisonment that is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment the subject of an intensive correction order.
(3) An intensive correction order is not invalidated merely because it specifies a date of commencement of the sentence of imprisonment that does not comply with the requirements of this section.
CRIMES (ADMINISTRATION OF SENTENCES) REGULATION 2008
175 Mandatory conditions for intensive correction orders
The following are the mandatory conditions of an intensive correction order to be imposed by a court under section 81 of the Act:
(a) a condition that requires the offender to be of good behaviour and not commit any offence,
(b) a condition that requires the offender to report, on the date fixed as the date of commencement of the sentence or on such later date as may be advised by the Commissioner, to such local office of Corrective Services NSW or other location as may be advised by the Commissioner,
(c) a condition that requires the offender to reside only at premises approved by a supervisor,
(d) a condition that prohibits the offender leaving or remaining out of New South Wales without the permission of the Commissioner,
(e) a condition that prohibits the offender leaving or remaining out of Australia without the permission of the Parole Authority,
(f) a condition that requires the offender to receive visits by a supervisor at the offender’s home at any time for any purpose connected with the administration of the order,
(g) a condition that requires the offender to authorise his or her medical practitioner, therapist or counsellor to provide to a supervisor information about the offender that is relevant to the administration of the order,
(h) a condition that requires the offender to submit to searches of places or things under his or her immediate control, as directed by a supervisor,
(i) a condition that prohibits the offender using prohibited drugs, obtaining drugs unlawfully or abusing drugs lawfully obtained,
(j) a condition that requires the offender to submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor,
(k) a condition that prohibits the offender possessing or having in his or her control any firearm or other offensive weapon,
(l) a condition that requires the offender to submit to such surveillance or monitoring (including electronic surveillance or monitoring) as a supervisor may direct, and comply with all instructions given by a supervisor in relation to the operation of surveillance or monitoring systems,
(m) a condition that prohibits the offender tampering with, damaging or disabling surveillance or monitoring equipment,
(n) a condition that requires the offender to comply with any direction given by a supervisor that requires the offender to remain at a specified place during specified hours or that otherwise restricts the movements of the offender during specified hours,
(o) a condition that requires the offender to undertake a minimum of 32 hours of community service work per month, as directed by a supervisor from time to time,
(p) a condition that requires the offender to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report or that become apparent during the term of the order, as directed by a supervisor from time to time,
(q) a condition that requires the offender to comply with all reasonable directions of a supervisor.
CRIMES (SENTENCING PROCEDURE) REGULATION 2010 - REG 14
14 Assessment reports
(1) An offender’s assessment report must take into account, and specifically address, the following matters:
(a) any criminal record of the offender, and the likelihood that the offender will re-offend,
(b) any risks associated with managing the offender in the community (taking into account the offender’s response to supervision in the community on previous occasions),
(c) the likelihood that the offender will commit a domestic violence offence,
(d) whether the offender will have suitable residential accommodation for the duration of an intensive correction order,
(e) whether any circumstances of the offender’s residence, employment, study or other activities would inhibit effective implementation of an intensive correction order,
(f) whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary,
(g) whether the making of an intensive correction order would place at risk of harm any person who would be living with or in the vicinity of the offender,
(h) any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order,
(i) any physical or mental health conditions of the offender that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order,
(j) the existence and extent of any self-harm risk, including the likely impact of an intensive correction order on that risk, and the availability in the community of the support and treatment services necessary to manage the risk.
(2) If a child under the age of 18 years would be living with an offender serving a sentence of imprisonment by way of intensive correction, the assessment report must take into account, and specifically address, the effect on the child of that fact.
(3) If it appears to the officer preparing the assessment report that the offender is homeless:
(a) all reasonable efforts must be made by the Commissioner of Corrective Services, in consultation with the offender, to find suitable accommodation for the offender, and
(b) the report is not to be finalised until those efforts have been made.
(4) An offender’s assessment report must also include an assessment of:
(a) factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order, and
(b) the availability of resources to address those factors by targeted interventions under an intensive correction order, and
(c) any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court’s determination of an appropriate date to be fixed for the commencement of the sentence.
Second Reading The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform,
and Vice-President of the Executive Council) [10.42 p.m.]: I move: That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard. Leave granted.
The Government is pleased to introduce the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Bill 2010.
The bill introduces a new sentencing option—the intensive correction order—designed to reduce an offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community.
It also abolishes the sentence of periodic detention, giving effect to recommendations from the NSW Sentencing Council and calls from victims of crime representatives.
Essentially, an intensive correction order is a sentence of imprisonment of up to two years that is ordered to be served in the community, where offenders can be subject to a range of stringent conditions including 24 hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities.
The innovative new order is based on a model recommended by the NSW Sentencing Council, directed at addressing some of the documented shortcomings of periodic detention. The new order will be available statewide and offer offenders the opportunity to turn their lives around through addressing the identified factors associated with their offending. At the same time, the community will be safeguarded through the intensive monitoring and supervision of offenders.
The NSW Sentencing Council will report annually on the use of the new orders and will review their operation after five years. In addition, the New South Wales Bureau of Crime Statistics and Research will be asked to measure the effectiveness of the order in reducing re-offending.
While it is not intended to be a direct replacement of periodic detention, the power of the courts to make periodic detention orders will cease upon the commencement of the new intensive correction order.
In its report on periodic detention, the Sentencing Council highlighted the reasons why retaining periodic detention and introducing the new intensive correction order would not be appropriate. Among these reasons include the potential for the large degree of resources needed to support the intensive correction order to be diluted, thereby weakening its value, along with the risk that the problems identified with periodic detention may simply be perpetuated if the existing resources directed towards that sentencing option were not put to better use.
While the Government agrees with the Sentencing Council's conclusions on this issue and therefore will be repealing the provisions relating to periodic detention, it also wishes to ensure that existing offenders subject to these orders are not disadvantaged in any way when the new orders come into effect. The bill therefore includes transitional provisions allowing periodic detainees to continue to serve out their sentence after the power to make new periodic detention orders has come to an end.
Before I turn to the details of the bill, I would like to provide an overview of its background, including information about the detailed consultation which has occurred as part of its development.
On 4 June 2007, the Attorney General asked the NSW Sentencing Council to undertake a review of periodic detention.
In making this reference, the Attorney General said the following, and I quote from the AAP newswire on 4 June 2007:
Periodic detention is a scheme that is nearly 40 years old and it is appropriate to review it at this time.
The shadow Attorney General Greg Smith was also quoted in the same article as saying, and again I quote from the AAP newswire on 4 June 2007:
Periodic detention is a soft option for criminals whose crime obviously warrants imprisonment.
At the time, the Sentencing Council was chaired by former Supreme Court Justice and Chief Judge at common law, the Honourable James Wood QC.
The Council also included the following representatives:
Former Supreme Court Justice, the Honourable John Dunford QC, who remains Deputy Chair of the Council;
Howard Brown from the Victims of Crime Assistance League;
Martha Jabour from the Homicide Victims Support Group;
Ken Marslew from the Enough is Enough anti-violence movement;
Assistant Commissioner Catherine Burn from the New South Wales Police Force;
Commissioner of Corrective Services, Ron Woodham;
The Director of Public Prosecutions, Mr Nicholas Cowdery QC; and
The Senior Public Defender, Mr Mark Ierace SC.
As part of its review, the Sentencing Council was asked to look at a number of issues, including:
The extent to which periodic detention is used;
Its advantages and disadvantages; and
Whether there are better alternatives to periodic detention orders.
The council received submissions from 26 organisations and individuals, including members of the judiciary, legal groups like the Law Society of New South Wales, various government agencies, local councils and representatives of victims of crime. The council also issued 260 community consultation letters addressed to a range of other smaller community organisations, receiving a further 72 responses.
Consultation meetings and conversations were also held with local and overseas academics, think tanks and representatives from a range of New South Wales and Commonwealth Government agencies.
The council delivered its report in December 2007, recommending the abolition of periodic detention and its replacement with a new community based order.
In making this recommendation, the council highlighted a number of problems with periodic detention.
The most significant of these was the fact that it is not uniformly available throughout the State, which ultimately undermines consistency in sentencing and unfairly discriminates against offenders in certain parts of the state. While the council considered that this could potentially be remedied by making periodic detention available in every area of the state, it noted the fact that expansion would carry "very substantial capital costs and ongoing expenditure for facilities which, in some areas, would be likely to be underutilised".
The council therefore recommended its replacement by a community-based order, which could be more easily, and therefore more realistically, made available on a statewide basis.
The council also found that current facilities are underutilised and noted the significant downward trend in the making of periodic detention orders by the courts, from 1891 commencements in 1999/2000 to 1184 In 2004-05. I understand this situation has not improved, with the latest available statistics from the Bureau of Crime Statistics and Research revealing that only 1137 orders were made in 2008. The council also found that just under a third of periodic detainees fail to complete their orders, with indigenous detainees four times more likely to have unsuccessful outcomes. The council found that case management does not exist in any meaningful way for periodic detainees, and drew attention to several submissions which had· questioned the rehabilitative value of periodic detention, noting that 39 per cent of all offenders sentenced to periodic detention had another proven offence within the following two years, with this rate increasing to 55 per cent of Aboriginal offenders.
In highlighting these deficiencies, the council noted that periodic detention provided no case management or therapeutic or rehabilitative support for offenders. It found that the introduction of a community-based order would have the benefit of enabling offenders to participate in rehabilitative or educational programs.
The council further noted that several submissions had highlighted the negative impact of periodic detention in relation to employment and family duties, with suggestions that alternative community-based sanctions could have less of an impact in terms of dislocation.
The Sentencing Council also noted the reasons why retaining periodic detention and introducing a new community- based order would not be appropriate. Among these reasons include the potential for the resources needed to support the new order to be diluted, thereby weakening its value, along with the risk that the problems identified with periodic detention may simply be perpetuated if the existing resources directed towards that sentencing option were not put to better use.
In light of the Sentencing Council's key recommendation to introduce a new community-based sentence, the, Government went out to public consultation with a possible model for the new order, which was based closely on that suggested by the Sentencing Council, to be called an intensive correction order, or ICO.
Submissions were again received from a large number of different organisations and individuals, including:
Members of the judiciary;
Legal representatives, including the Law Society and the Bar Association;
Government agencies; and Community legal centres.
The stakeholder response to the public consultation was, on the whole, supportive of the new sentencing option. Many of the expressed concerns have been addressed in the bill.
For example, previous proposals to allow the commissioner to extend the term of the sentence, and to prevent the court from suspending the sentence if an offender is found unsuitable for an ICO, have been discarded.
The role of the court in the ICO sentencing process has also been strengthened as a result of the consultation process; it being responsible for imposing the mandatory and additional conditions, varying or revoking any additional conditions, and determining whether to extend the term of the order to account for work or reporting requirements missed.
The court has also been given a greater discretion in relation to the range of conditions that may be imposed as "additional conditions" of the order, where previously the consultation model had proposed predominantly mandatory conditions in this regard.
In finalising the bill, the Government circulated a copy of the bill and invited further comment from all those organisations who had made submissions on the consultation model, as well as key agency stakeholders such as the Office of the DPP, Legal Aid, and the courts. The bill was also circulated to victims of crime representatives, the Sentencing Council, and the now former Chair of the Sentencing Council, the Honourable James Wood, AO, QC.
A briefing session was also held with the Attorney General and the Minister for Corrective Services, with all of the above organisations invited. Those in attendance included representatives from the Law Society, the Bar Association, the Wesley Community Legal Centre and victims of crime representatives.
In providing feedback on the legislation, stakeholders have again expressed their strong support for the introduction of the intensive correction order.
In particular, I would like to place on the record the strong endorsement the bill has received from the Victims of Crime Assistance League, the Enough is Enough Anti-Violence Movement, and the Homicide Victims Support Group. I will turn to the comments these organisations have made in relation to the bill in a moment.
I would also like to place on the record the endorsement the bill has received from the Hon. James Wood, who as I outlined earlier was Chair of the NSW Sentencing Council when the review of periodic detention was undertaken.
The Government also received further comment on the legislation from the New South Wales Law Society, who raised some concerns with the proposed legislation, and suggested some changes. The Government considered these suggestions in detail, and in doing so, sought the further advice of Mr Wood, as many of the issues raised had been looked at by the Sentencing Council in conducting its initial review of periodic detention.
The Law Society is an important organisation, and one whose views the Government respects. We often seek the advice of the Law Society on a range of different proposals, and there is a tremendous amount of legislation which goes through this place which benefits from their input.
I therefore think it is important to place on the record the issues the Law Society has raised in relation to this bill, and to detail the consideration the Government has given them. It is also important to note that the Government has outlined and further detailed this consideration in a written response it has provided to the Law Society.
The Law Society's foremost concern relates to the proposed repeal of periodic detention. I understand the Society is of the view that the proposed abolition of periodic detention would remove an important component of the sentencing spectrum and lead to an increase in the use of full-time imprisonment.
It is worth noting that the Law Society also raised this issue in its submission on the ICO consultation paper. The Government first considered the society's arguments at that time, but decided to maintain its support for repealing periodic detention in light of the findings and recommendations of the Sentencing Council, which I outlined earlier.
In light of the Law Society's further comments on the bill, the Government once again sought the views of the Hon. James Wood, QC, who confirmed his support for the Sentencing Council's original findings and recommendations.
Once again, these included the fact that periodic detention is not available on a statewide basis, that making it so would incur significant costs and require the construction of facilities which would be likely to be underused, and finally, that periodic detention orders are often breached, fail to rehabilitate offenders and are becoming increasingly unpopular with the courts.
Indeed, in public comments made to the media today, Mr Wood has reiterated these points, saying this:
"The Council was concerned that periodic detention IS not available as a sentencing option in all parts of the State.
Further expansion to address this would incur very substantial costs and ongoing expenditure for facilities, which, in some areas, would probably be underutilised. "
The Government has also had to consider the fact that a number of other organisations are strongly in favour of abolishing periodic detention.
These include, most notably, victims of crime representatives such as Howard Brown of the Victims of Crime Assistance League, Ken Marslew of the Enough is Enough Anti-Violence Movement and Martha Jabour from the Homicide Victims Support Group.
I would like to place on the record what each of these organisations have said today in their comments to the media. Howard Brown has said:
"There's a good reason why no other state in Australia has weekend detention.
Because about a third breach their conditions and those who do comply receive absolutely no rehabilitative support or treatment whatsoever.
Even courts are turning away from it—nearly half the number of orders are being made compared to ten years ago."
Ken Marslew has said: "This is about getting fair dinkum with repeat criminal offenders.
Weekend detention is simply failing to rehabilitate them—39 per cent of those placed on orders reoffend within two years."
And Martha Jabour has said this:
"By enabling offenders to be monitored 24 hours, 7 days a week, and by requiring them to address the causes of their offending behaviour, these [Intensive Correction] Orders will be much more effective in protecting the community both in the short and long term."
In consideration of Mr Wood's advice, further input from victims of crime, and our own consideration of the competing arguments for and against retaining periodic detention, the Government has decided to proceed with the abolition of periodic detention.
The Law Society also expressed concern surrounding the proposed maximum term of the ICO, and has suggested that it be increased from two to three years.
The maximum cap of two years and the restriction on the Court setting a non-parole period were both recommended by the Sentencing Council. The Government therefore again sought Mr Wood's views on these issues, and he has confirmed that he continues to support the council's original recommendations and findings.
The Sentencing Council recommended the cap on the basis of statistics confirming that there are very few offenders currently sentenced to periodic detention for periods of between two and three years. The council's report noted that only 6% of the periodic detention population has a sentence length greater than 18 months and 82% of periodic detention orders are for 12 months or less. Furthermore, requiring an offender to remain under intensive supervision for periods of up to three years may increase the potential for breaches during the last portion of the sentence. In this regard, I note that periodic detention orders contain a non-parole period, and ICOs do not. This means that offenders under an ICO remain subject to supervision for the entire length of the order.
In light of these considerations, the Government has decided to maintain its support for keeping the maximum term of the ICO at two years.
The Law Society has also suggesting allowing the court to set a non-parole period for an ICO.
Once again, the Government sought Mr Wood's views on this issue, who again confirmed his support for the recommendations of the Sentencing Council.
The restriction on the court setting a non-parole period for an ICO was an essential feature of the model recommended by the Sentencing Council, on the basis that the offender should be subject to the supervision and conditions of the order for its full term. This will ensure that the rehabilitative focus of the order is maintained from beginning to end.
Some concern has been raised about the potential for an offender to be required to serve the remainder of their sentence in custody should their order be revoked. However, the Government considers that any concern in this regard
is tempered by the fact that offenders will have the opportunity to apply for a reinstatement of their ICO after serving one month in custody. This throws the onus onto offenders to demonstrate to the Parole Authority what steps they have taken to ensure that they will not fail to comply with the obligations of the order in the event that it is reinstated.
It is also worth emphasising that suitable offenders will be able to serve the remainder of their sentence by way of home detention as a result of an ICO being revoked.
The Law Society also sought to vest the power to revoke an ICO in the court rather than the Parole Authority. Once again, the proposal to vest the revocation function in the Parole Authority is in harmony with the model recommended by the Sentencing Council. Accordingly, the Government again sought the views of Mr Wood on this issue, who has again re-affirmed his support for the Sentencing Council model.
In making this recommendation, the Sentencing Council found that reservation to the Parole Authority of the primary responsibility for breaches would have two clear advantages. The first was that it would permit an expeditious response to a breach, thereby strengthening the deterrent effect of the sanctions that would underlie such orders. The second was that it would permit greater consistency in the determination of breach proceedings. The council's report also noted that vesting the revocation function in the Parole Authority is consistent with the manner in which home detention and periodic detention is currently administered. It is considered the most efficient means of administering the ICO, while retaining procedural fairness considerations and review avenues for offenders. As noted above, the existing power of the Parole Authority to reinstate a revoked periodic detention order has also been applied to the ICO.
It is expected that revocation and attendant functions can be dealt with more expeditiously by the Parole Authority. This was certainly the experience in relation to periodic detention orders, following the Periodic Detention of Prisoners Amendment Act 1998, which moved the function of periodic detention revocation from the court to the (then) Parole Board.
The committee expressed concern over the restriction on the Court's ability to make an ICO in the event that an offender is not assessed as suitable for the order.
The rationale for it is that Corrective Services New South Wales, as the agency administering the order, is best placed to advise which offenders they are able to adequately supervise in the community and the particular risks associated with the offender. This not only includes the risk the offender might pose to community safety, but also the risk to his or her own safety through the danger of self-harm. Other perhaps less drastic risks include the danger that an unsuitable offender might not be capable of meeting the requirements of an order, making it likely they would end up breaching the order. If a court were empowered to simply ignore this advice, this could place both the community and the individual offender at considerable risk, as well as compromising levels of compliance thereby exposing the offender to breach action.
The Government has therefore decided to maintain its support for the existing provision.
The Law Society also sought assurance from the Government that the proposed intensive correction order will be properly resourced so that it operates as intended and is uniformly available across the State.
I would like to relay and place on the record the Government's assurances in this respect, because it is no doubt an issue which is of interest to all members in considering this bill.
The Cabinet Standing Committee on the Budget has approved Corrective Services' costings and funding plan for the implementation of the ICO, which it noted may amount to $14.5 million during 2010-11. These funds will provide adequate resourcing for the initially projected 750-850 offenders on an ICO. This figure has been arrived at based on current numbers of offenders serving periodic detention orders.
The bill requires a court to first determine that it will sentence a person to imprisonment and then to seek a suitability assessment to assist the sentencing court in determining whether or not the sentence of imprisonment is to be served by way of an ICO. If the courts begin to sentence more offenders to an ICO than the current number of offenders sentenced to a periodic detention order, then this should mean that more offenders are being diverted from full-time imprisonment.
Accordingly, ensuring adequate resourcing for the ICO program in the future should not pose a significant problem if demand for the order starts to exceed initial expectations of numbers of offenders, as there will be off-set savings realised by these offenders not being placed in fulltime custody.
In recognition of the need for offenders to have suitable accommodation throughout the order, the Government will be increasing the rollout of Community Offender Support Program Centres (COSP Centres) at selected sites across the State. COSP Centres currently operate at Malabar, Emu Plains, Berkshire Park (near South Windsor), Campbelltown, and Kempsey, and there are plans to develop further COSPs at Nowra and Wagga Wagga. COSP Centres are aimed at providing short-term accommodation for offenders in exceptional circumstances who are unable to attain, or maintain, suitable accommodation and/or access to community support services. During the assessment stage of the ICO, if an offender's accommodation is assessed as unsuitable, consideration will be given to the option of short-term accommodation at a COSP Centre.
Corrective Services is also funded to undertake essential seven-day-a week compliance and monitoring activities with respect to offenders serving an ICO. This includes the use of electronic monitoring and the imposition of curfews thereby restricting movement of offenders. Other activities in this regard include random work and home visits and searches, together with random breath testing and urinalysis, as required.
Corrective Services has in place a range' of community programs delivered by a combination of program facilitators, probation and parole officers and external facilitators.
A significant limitation of periodic detention orders is their lack of availability statewide as a sentencing option. The ICO, however, will be progressively rolled out in phases, statewide. At commencement of the legislation, the order will be available across the Sydney Metropolitan area, Wollongong, Newcastle and Bathurst. Following on from this, it is intended to extend it Grafton, Wagga Wagga and Tamworth. Approximately, six months after the commencement of the legislation, the availability of the ICO will be extended to Dubbo, Goulburn and Queanbeyan. It is anticipated that the order will be available in Broken Hill nine months after the legislation has commenced. Approximately 12 months after the commencement of the order, it is proposed that it will be rolled out to all areas within a 200km radius of each of the above regional locations, effectively covering the State.
I now turn to the main detail of the bill.
The bill essentially amends the two primary pieces of sentencing legislation in this State—the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999, together with supporting regulations made under each Act. These pieces of legislation work together in relation to all sentencing options, making provision for the courts to impose appropriate sentences and how they are to be served, together with prescribing the manner in which those sentences will be administered by Corrective Services New South Wales and the State Parole Authority.
Schedule 1 to the bill amends the Crimes (Sentencing Procedure) Act 1999.
New section 7 of the Act will allow a court that has sentenced an offender to imprisonment for not more than two years to make an intensive correction order directing that the sentence be served by way of intensive correction in the community. The court will be precluded from setting a non-parole period for the sentence, as an essential feature of the order emphasised by the Sentencing Council is that the offender will be subject to the conditions of the order for the full term of the sentence. This will ensure that the rehabilitative focus of the order is maintained from beginning to end.
A new part 5 will be inserted into the Act to provide new sentencing procedures for intensive correction orders. New section 66 carries over an existing exclusion in respect of prescribed sex offenders currently applying in respect of periodic detention, in order that such offenders will not be eligible to receive an intensive correction order.
New section 69 provides for the court to refer offenders for a suitability assessment, before they have imposed a sentence of imprisonment on the offender, but only after they have considered all the alternatives and are satisfied that no sentence other than imprisonment is appropriate and that the sentence length is likely to be no more than two years. The reason for this level of prescription on the point of referral is to prevent any net widening effect through ensuring that intensive correction orders are only imposed on offenders who would otherwise have received a sentence of imprisonment. Otherwise, the new order could result in some offenders being exposed to sentences of imprisonment inappropriately.
New section 67 of the Act and clause 14 of the Crimes (Sentencing Procedure) Regulation 2005 combine to form the requisite matters upon which an offender's suitability for the intensive correction order is to be assessed. New section 67 provides that an order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied:
That the offender is 18 years of age or over;
That the offender is a suitable person for the order;
That it is appropriate in all the circumstances that the sentence be served by way of an intensive correction order in the community;
That the offender has signed an undertaking to comply with their obligations under the order.
Proposed clause 14 of the regulation provides that an offender's assessment must take into account, and specifically address, the following matters:
Any criminal record of the offender, and the likelihood that they will reoffend;
Any risks associated with managing the offender in the community;
The likelihood of the offender committing a domestic violence offence;
Whether the offender will have suitable accommodation for the duration of the order;
Whether any circumstances of the offender's residence, employment, study or other activities would inhibit effective implementation of the order;
Whether the people with whom the offender is likely to reside and/or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary;
Whether the making of an intensive correction order would place any person living with, or in the vicinity of, the offender, at risk;
Any dependency of the offender on alcohol or drugs, or any physical or mental health conditions, that would affect their ability to comply with the obligations of the order;
The existence of any self harm risk in respect of the offender and the likely impact of an intensive correction order on that risk, together with the availability in the community of the support and treatment services necessary to manage the risk.
Proposed clause 14 also provides that the offender's assessment report must also include an assessment of:
Factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order;
The availability of resources to address those factors by targeted interventions under an intensive correction order; and
Any issues relevant to the administration of an Intensive correction order in respect of the offender that may be relevant to the court's determination of an appropriate date to be fixed for the commencement of the sentence.
Schedule 2 to the bill amends the Crimes (Administration of Sentences) Act 1999.
New section 81 of the Act and clauses 175 and 176 of the Crimes (Administration of Sentences) Regulation 2008 combine to prescribe the mandatory and additional conditions that may be imposed on an Intensive correction order. The mandatory conditions, imposed by the court upon sentence, are based on those currently applying to existing sentencing options such as home detention and periodic detention, as well as to offenders on parole, and are necessary to ensure that offenders subject to intensive correction orders are appropriately supervised and monitored in the community. The particular conditions that set intensive correction orders apart from other sentencing options, however, include the combined requirements of undertaking a minimum of 32 hours of community service work per month, and engaging in activities addressing factors associated with their offending.
The additional conditions that may be imposed on an intensive correction order by the sentencing court include:
Requiring the offender to accept any direction of a supervisor in relation to the maintenance of or obtaining employment;
Requiring the offender to authorise contact between any employer of the offender and a supervisor;
Requiring the offender to comply with any direction of a supervisor as to the kinds of occupation or employment in which the offender mayor may not engage;
Requiring the offender to comply with any direction of a supervisor in relation to associating with specified persons or frequenting specified places;
Prohibiting the offender from consuming alcohol.
New section 81 of the Act also enables the court to impose any other condition the court considers necessary or desirable for reducing the likelihood of the offender reoffending.
New section 85 of the Act provides for the Commissioner of Corrective Services, on the application of an offender, to grant permission for the offender to not comply with a work or reporting requirement on the grounds of health, on compassionate grounds, or for any other reason the commissioner thinks fit. If such permission is granted, new section 86 allows the commissioner to give such directions to the offender as he determines necessary to ensure that they make up for any work or other activity avoided.
On the application of the commissioner, the sentencing court may extend an offender's intensive correction order for a period of up to six months if the court considers it necessary and appropriate to ensure that the offender complies with a direction of the commissioner under new section 86. In determining whether to extend the order, the court is to consider any hardship likely to be experienced by the offender if the order is extended, as well as any hardship likely to result from the court not extending the order (for example, if this may lead to the offender's order being revoked).
New section 89 of the Act allows the commissioner to deal with an offender's failure to comply with their obligations under the order by either taking no action, imposing a formal warning, or a imposing a more stringent application of the conditions (in accordance with their original terms). As an alternative or in addition to the above, the commissioner may decide to refer the breach to the Parole Authority because of its serious nature.
In addition to being able to impose any of the above sanctions, new section 90 of the Act allows the Parole Authority, in dealing with an offender's breach, to impose a period of up to seven days home detention on the offender, or as a last resort, revoke the Intensive correction order. Similar to the manner in which home detention and periodic detention is currently administered, the power to revoke the intensive correction order is vested in the Parole Authority, who may do so on its own initiative or on the recommendation of the commissioner. New section 163 of the Act allows the Parole Authority to revoke an order:
If it is satisfied that the offender has failed to comply with his or her obligations under the order;
If it is satisfied that the offender is unable to comply with the above as a result of a material change in the offender's circumstances;
If the offender fails to appear before it when asked to do so; If the offender has applied for the order to be revoked.
New section 163 also allows the Parole Authority to revoke an offender's intensive correction order on the recommendation of the commissioner if satisfied that health reasons or compassionate grounds exist that justify it revocation. The legislation allows for the commissioner to apply to the Parole Authority for appropriate orders to be made as a result of intensive correction orders revoked in these circumstances.
The effect of the revocation of an intensive correction order is that the offender must serve the remainder of the sentence in full-time detention.
If that period is 18 months or less, the Parole Authority may make an order directing that it be served by way of home detention.
Similar to the manner in which home detention and periodic detention is currently administered, new section 165 of the Act makes provisions for revoked intensive correction orders to be reinstated following the offender having served a minimum period of full-time detention. For intensive correction orders, this minimum period will be one month, and in support of the offender's application they must state what they have done, or are doing, to ensure that they will not fail to comply with their obligations under the order in the event that it is reinstated.
As mentioned, the bill contains a provision requiring the Sentencing Council to review the operation of the intensive correction order provisions after five years. A report on the outcome of the review is to be provided to the Attorney General and the Minister for Corrective Services and be tabled in Parliament.
The bill makes a number of consequential amendments to other legislation, directed at maintaining a level of equilibrium with current references to periodic detention, and includes transitional provisions allowing offenders already serving periodic detention orders to continue serving their sentences after the court's power to impose new periodic detention orders has ceased.
In summary, the bill represents a significant step forward in relation to the effective sentencing and rehabilitation of offenders. The shortcomings of periodic detention will be addressed by a superior sentencing option that directly targets reoffending through the intensive management of offenders in the community. The intensive correction order is not a soft option; it is reserved for offenders who would otherwise have been sentenced to a term of imprisonment. For offenders, the conditions are stringent and the consequences of non-compliance are significant—the Government makes no apology for this. However, the benefits it offers, for both the offender and the wider community, are substantial. Giving offenders the opportunity to address the factors impacting upon their offending can only make the community a safer place for everyone.
I commend the bill to the House.