Full time custody v Intensive Corrections Order

When a court sentences an offender to a period of imprisonment, the term of imprisonment can be served either in the community, known as an Intensive Corrections Order (ICO), or by way of full time jail. Previously, when making this decision, a court was required to consider a number of factors known as the ‘purposes of sentencing’, which are outlined in the Crimes (Sentencing Procedure) Act 1999 (CSPA). Rehabilitation has always been an important factor for a court to consider when sentencing an offender, but it generally carried no more weight than the other six purposes of sentencing which include punishment, denunciation and deterrence.

However, due to recent changes in legislation, rehabilitation has been given increased weight for offenders facing a full time custodial sentence. This is as a result of section 66 CSPA, which states, “community safety must be the paramount consideration when the court is deciding whether to make an intensive correction order in relation to an offender.” Section 66(2) goes on to confirm that when considering community safety, the court is required to assess whether an ICO or full time custody is more likely to address the offender’s prospects of rehabilitation.

What does this mean?

In appropriate cases, if an offender can demonstrate that they have positive rehabilitation prospects, then it is now more likely this balance will fall in favour of the offender remaining in the community and serving the term of imprisonment via an ICO. The other ‘purposes of sentencing’ still play an important role, but the Criminal Court of Appeal has recently commented that these factors are now subordinate to the assessment of community safety.

Why did the law change?

This shift is as a result of parliament recognising that short periods of imprisonment often have little to no effect on an offender’s likelihood of re-offending. Instead, supervision and effective rehabilitation is more likely to ensure an offender does not come back before a court.

Case Study

This week, Zoe Whetham appeared for a client who had been charged with serious offences. In addition, these charges meant that she was in breach of multiple suspended sentences and two good behaviour bonds from previous matters. All of her offending was linked to one underlying issue which up until recently, had not been addressed.

When she was first charged, she was refused bail by police. Zoe appeared on her behalf at court, and convinced the magistrate to grant bail on the condition that our client enter a residential rehabilitation program. She successfully completed this program, and worked with Zoe to compile positive evidence to be used in her sentence.

These documents were tendered on our client’s behalf. Zoe then submitted to the court that notwithstanding the seriousness of the charges, our client’s risk of re-offending is better addressed via a sentence served in the community. Despite our client previously being told that if she re-offended, there would be no other option than full time custody, his Honour ultimately agreed with Zoe’s submissions and ordered an ICO. As a result our client was able to avoid being sentenced to jail, and instead will be able to continue with her rehabilitation in the community under strict supervision.

Photo by Craid Lloyd