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Intensive correction order – Complete guide – Crime

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KEY TAKEAWAYS

An
intensive correction order
is the second most serious type of
punishment a court can sentence an offender for committing a
criminal offence in Australia. It’s also called an
“ICO” for short and is actually an imprisonment penalty
that is served, not in jail, but within the community with
supervision and community programs. It can be applied by a court
for very serious offenses committed where the court would otherwise
impose a full time prison sentence.

WHAT IS AN INTENSIVE CORRECTION ORDER IN AUSTRALIA?

ICO meaning? An
intensive correction order
in NSW is called an “
ICO
” for short and is a way of serving an imprisonment
sentence in the community, instead of being sent to full-time jail.
Because it’s a type of jail sentence served outside in the
community, it’s also considered an alternative to full-time
jail for very serious offenders.

An ICO can apply to offenders if the court believes that a
community-based sentence is more likely to reduce the risk of
him/her reoffending than sending that person to full-time jail. The
main concern is community safety.

1) Section 10 Dismissal without conviction (without good
behavior bond)

2) Conditional Release Order without conviction (with good behavior
bond)

3) Section 10A with conviction (without good behavior bond)

4) Conditional Release Order with conviction (with good behavior
bond)

5) Community Correction Order with conviction

6)
Intensive Correction Order
with conviction

7) Full-time Imprisonment

THE SENTENCING STARTING POINT

When the sentencing court is going to sentence an offender for a
criminal offence, the Judge will in his/her mind go through the
following considerations in this order:

  1. The maximum penalty the offence carries under law

  2. Whether a standard non parole period applies to the
    offence?

  3. Whether after considering all possible alternatives of
    sentencing, that no punishment other than imprisonment is
    appropriate? And considerations to the purposes of punishment.

  4. The length of the imprisonment sentence

  5. The final step is to consider whether the imprisonment sentence
    should be served in full time jail or in the community under an
    ICO.

When finally considering the mode of the imprisonment sentence,
there are two available options, namely full time custody or
Intensive Correction Order
.

If an ICO is imposed, instead of full-time jail, then a
non-parole period will not be set for the imprisonment sentence.
The non-parole period is the period of jail time behind bars a
person must do before being eligible for release back into the
community on parole.

An ICO cannot be imposed on an offender if the offender is under
the age of 18-years.

An ICO can also be imposed for short term imprisonments
sentences of 6 months or less.

IS THE JUDGE REQUIRED TO CONSIDER AN ICO?

The sentencing court may be required to consider imposing an ICO
if a reasonable or cogent argument is made to the court for it.

The case study of Mourtada v R (2021) is a good illustration of
this. The applicant appealed against a sentence of imprisonment for
two offences involving the illegal importation of tobacco products.
The applicant was one of multiple offenders who were sentenced in
the same proceedings for related offences. His counsel at the
sentence hearing had submitted that an ICO was appropriate in the
circumstances. The sentencing judge did not engage with that
submission in his remarks in respect of the applicant. At the
conclusion of the sentence proceedings, counsel for the applicant
asked:

“Has your Honour considered the matters in section 66 of
the Crimes (Sentencing Procedure) Act in terms of the submission
made for an ICO, and protection of the community?”

The sentencing judge replied that he had, and elaborated:

“… I just thought the objective seriousness of the
matters were such that they needed to be served by way of full-time
imprisonment for the purposes of general and specific
deterrence.” (Mourtada at [19])

The Court granted leave to appeal and dismissed the appeal
because the exchange following the delivery of sentence was a clear
indication that the sentencing judge had considered whether an ICO
should be imposed, despite his Honour not having referred to s 66
in his remarks.

WHAT HAPPENS IF THE COURT FAILS TO CONSIDER AN ICO WHEN
REQUIRED TO?

There is no rule that a sentencing court must consider making an
ICO in all cases where imprisonment ends up being considered the
most appropriate sentence to impose. However, if the sentencing
court fails to consider an ICO in a situation there is a
requirement to consider it, the court will be considered to have
fell into error. This can then be successfully appealed in a higher
court.

A case study example is Khalil v R [2022] NSWCCA. Here the
sentencing Judge’s remarks failed to disclose the reasoning for
rejecting the submission that was advanced in favour of an ICO.
Those remarks didn’t either expressly or inferentially disclose
the reasoning for rejecting an ICO, which amounted to error.

CHECKLIST TO SATISFY BEFORE AN ICO CAN BE IMPOSED

What are the steps and hurdles that must be considered and
satisfied before an ICO punishment can lawfully be imposed by a
sentencing Judge in court? The following are a checklist and guide
to follow generally, namely, sections 66, 67, 68, 69, 70, 71, 72,
73A and 73B, 17D and 4B Sentencing Act.

Section 66 Community Safety

Section 66 Sentencing Act requires the court to take community
safety as paramount consideration when considering an ICO, by
assessing whether making an ICO or full time detention is more
likely to address the risk of reoffending.

This assessment includes identifying any contributing factors to
the offending behaviour, that can be more effectively addressed by
the imposition of community supervision and programs under an ICO
than full time custody, for purposes of section 66.

Section 66 was amended by the Crimes (Sentencing Procedure)
Amendment (Sentencing Options) Act 2017 (NSW), which commenced on
24 September 2018.

The purpose of the amendment was explained by the Attorney
General of NSW, in the second reading speech on 11 October 2017,
which:

  • acknowledged that ICO’s are designed to reduce the risk of
    re-offending through community supervision and programs, and

  • acknowledged that evidence shows that community supervision and
    programs are more effective at reducing the risk of reoffending
    than full time detention for terms of imprisonment of under 2 years
    (Also reflected in Pullen).

When considering an ICO, the court must also consider the
purposes of sentencing and any relevant common law sentencing
principles, and any other matters that the court thinks
relevant.

In Wany, the court also referred to the fact that parliament had
expressed its recognition that responsibility and accountability
are as much able to be reflected by the successful completion of a
period of supervision within the community, possibly with
additional conditions, as by the service of a short term
imprisonment (Wany v DPP [2020] NSWCA 318 at [10]).

Section 67 Offences that Preclude an ICO

This provision precludes a court from imposing an ICO if any of
the offences outlined in the section applies, including
murder/manslaughter, prescribed sexual offences, an offence
involving the discharge of a firearm, terrorism offences or a
contravention of the serious crime prevention order.

A ‘prescribed sexual offence’ here is defined in s67(2)
and includes an offence under Division 10 or 10A of Part 3 Crimes
Act 1900, being an offence involving a victim aged under 16, or an
offence where the victim is of any age where the elements of the
offence include sexual intercourse as defined by s61H Crimes Act
1900.

A prescribed sexual offence also includes certain offences under
the Commonwealth Criminal Code where the victim was under the age
of 16 years.

These offences include using a carriage service for child abuse
material, and production or possession of child abuse material
under both state and federal laws.

Section 68 Limits the Duration of the Imprisonment Sentencing
Term (H3)

Section 68 precludes the court from making an ICO if:

  • for a single offence, the duration of the imprisonment term
    exceeds 2 years, or

  • for an aggregate imprisonment sentence, the duration of the
    aggregate term exceeds 3 years.

Section 69 Assessment Reports

This provision requires a court to have regard to the contents
of an assessment report, and evidence from the community
corrections officer and any other information before the court that
the court considers necessary for purposes of deciding whether to
make an ICO.

Significantly, the court is not bound by the assessment report,
except for where section 73A(3) Sentencing Act applies.

Section 73A(3) precludes a court from imposing a home detention
or community service work condition on an ICO unless an assessment
report states that the offender is suitable to be subject of such a
condition.

For ICO’s, section 17D requires the court to obtain an
assessment report before it can make an ICO unless:

  • if the court is satisfied there’s sufficient information to
    justify the making of an ICO without an assessment report (except
    if required to obtain an assessment report for purposes of home
    detention or community service work condition to an ICO).

Sections 17D(2) and (4) requires a court to obtain an assessment
report relating to a home detention or community service work
condition before it can impose any such condition to an ICO.
Section 73A(3) then restricts it further (as outlined earlier).

Can an ICO be Imposed if the Offender Lives in Another State or
Territory? (H3)

Short answer is no. The court is only permitted to impose an ICO
in respect of an offender who resides or intends to reside in
another State or Territory if that State or Territory is declared
by the regulations to be an approved jurisdiction, according to
section 69(3) Sentencing Act.

Currently no state or territory has been declared by the
regulations to be an approved jurisdiction for purposes of 69. This
has also been acknowledged under note 3 of Part 3 Sentencing
Regulation.

Factors that an Assessment Report Must Address

Section 12A(1) Sentencing Regulation provides a non-exhaustive
list of factors that an assessment report must address, including
the following:

  • the offender’s risk of re-offending

  • factors relating to the offender’s offending behaviour

  • factors that may impact on the offender’s ability to
    address his/her offending behaviour

  • how the matters referred to above would be addressed by
    supervision and then availability of resources to do so

  • any conditions that would facilitate the effective supervision
    of the offender in the community

  • the offender’s suitability for community service work

  • a summary of the offender’s response to any previous period
    of management in the community in respect of any relevant
    order,

  • any additional matters that the court wishes to have
    specifically addressed.

Significantly, an assessment report doesn’t need to address
a matter already referred to if the matter is not relevant to the
circumstances relating to the offender or the court doesn’t
require the matter to be addressed (section 12A(3) Sentencing
Regulation).

Factors an Assessment Report for Home Detention is Required to
Address (H3)

Section 12B(1) Sentencing Regulation provides a non-exhaustive
list of matters that an assessment report for a home detention
condition is required to address, including the following:

  • the offender’s suitability for home detention,

  • any risks associated with imposing home detention, including
    any risks to the offender or any other persons, including children,
    and any strategies that could manage the risks,

  • any other matters relevant to administrating an Intensive
    Correction Order with a home detention condition

Importantly an assessment report is not to be finalised until
reasonable efforts have been made by a community corrections
officer in consultation with the offender, to find suitable
accommodation if it appears that the offender doesn’t have
accommodation suitable for a home detention condition (section 12B
Sentencing Regulation).

Section 70 and 71: Can Pre-custody Imprisonment Be Taken Into
Account to Reduce the Term of an ICO?

The ICO term is the same as the term of imprisonment in respect
of which the order is made (section 70 Sentencing Act).

Section 71(1) Sentencing Act requires the ICO to commence on the
date on which it’s made.

Section 71(2) Sentencing Act says that (1) doesn’t apply to
an ICO order made in relation to an imprisonment sentence to be
served consecutively (or partly concurrently and partly
consecutively) with some other imprisonment sentence the subject of
an ICO.

This would cause injustice to offenders who have served time in
custody before sentencing (or re sentencing on appeal) occurs, who
would otherwise have time served taken into account in the way
permitted by sections 24(a) and 47(3) Sentencing Act. In those
circumstances, an ICO would be precluded upon a strict
interpretation of 71.

Simpson AJA in Mandranis from [55] onwards elaborates more on
this issue.

Particularly at [61] where Her Honour addresses this issue and
said that an offender who’s served time in custody prior to
sentencing is entitled to have that time recognised without
sacrificing other options that might be available. Sections 70 and
71 which prohibit this, should not prohibit this because it is
unjust. The way to overcome this, is for the pre-sentence custody
period to be adjusted by deducting it to the term of the sentence,
so that the ICO commences on the day it’s made (complying with
s71 and s70). The sentence actually recorded and imposed would be
less (by the length of the pre-sentence custody) than the sentence
found to be appropriate to meet the purposes of sentencing.

Conditions Imposed on an ICO Sentence: Sections 72, 73, 73A and
73B (H3)

Under section 72 Sentencing Act, an ICO is subject to standard
conditions (s73), additional conditions (73A), any further
conditions imposed by the sentencing court under s73B, and any
conditions imposed by the Parole Authority under section 81A or 164
Administration of Sentences Act.

After a sentencing court makes an ICO with conditions in respect
of the offender, the ICO conditions are afterwards imposed, varied
or revoked by the Parole Authority rather than the sentencing
court.

Section 73 requires the sentencing court when imposing an ICO,
to impose the standard conditions, namely, conditions that the
offender must not commit any offence and that the offender must
submit to supervision by a community corrections officer.

Standard condition obligations of supervision concerning an ICO
are outlined in clause 187 Administration of Sentences Regulation,
under the authority of section 82 of the Administration of
Sentences Act.

Section 73A Sentencing Act requires the sentencing court to
impose at least 1 of the additional conditions on an ICO (unless
there are exceptional circumstances not to).

Additional conditions of an ICO include:

  • home detention

  • electronic monitoring

  • curfew

  • community service work requiring the performance of community
    service work for a specified number of hours (not exceeding 750
    hours or the number of hours prescribed by the regulations in
    respect of the class of offences to which the relevant offence
    belongs, whichever is the lesser)

  • rehabilitation or treatment condition requiring the offender to
    participate in a rehabilitation program or to receive
    treatment

  • an abstention condition requiring abstention from alcohol
    and/or drugs

  • non association condition prohibiting association with
    particular persons

  • place restriction condition prohibiting the frequenting of or
    visits to a particular place or area

The sentencing court can limit the period during which an
additional condition imposed by it on an ICO is in force (section
73A(4) Sentencing Act).

The period during which a community service work condition
requiring the performance of a specified number of hours is in
force must not be less than the period prescribed by the
regulations in respect of the specified number of hours of
community service work (section 73A(5) Sentencing Act).

Clause 14 Sentencing Regulation prescribes the minimum and
maximum periods that a community service work condition can be in
force for in an additional condition of an ICO.

The minimum periods are:

  • 6 months: if the number of hours of community service work
    required to be performed does not exceeds 100 hours,

  • 12 months: if the number of hours of community service work
    required to be performed exceeds 100 hours but does not exceed 300
    hours,

  • 18 months: if the number of hours of community service work
    required to be performed exceeds 300 hours but does not exceed 500
    hours,

  • 2 years: if the number of hours of community service work
    required to be performed exceeds 500 hours

The maximum hours are:

  • 100 hours: for offences for which the maximum term of
    imprisonment provided by law does not exceed 6 months,

  • 200 hours: for offences for which the maximum term of
    imprisonment provided by law exceeds 6 months but does not exceed 1
    year,

  • 750 hours: for offences for which the maximum term of
    imprisonment provided by law exceeds 1 year.

Section 73B Sentencing Act allows the sentencing court to impose
further conditions on an ICO, so long as they are not inconsistent
with any of the standard conditions or any of the additional
conditions.

Clause 202 Administration of Sentences Regulation prohibits an
offender from being directed to perform more than 8 hours of
community service work in any one day, unless by agreement between
offender and a community corrections officer or supervisor.

Section 4B Domestic Violence Offences

Section 4B Sentencing Act prohibits the sentencing court from
imposing an ICO in respect of an imprisonment sentence for a
domestic violence offence. This includes an aggregate imprisonment
sentence for 2 or more offences, any one or more of which is a
domestic violence offence.

The sentencing court can impose an ICO in those circumstances if
satisfied that the victim, and any person with whom the offender is
likely to reside, will be adequately protected (whether by ICO
conditions or for some other reason).

In addition, under this provision, the sentencing court is also
prohibited from imposing a home detention condition if the court
reasonably believes that the offender will reside with the victim
of the domestic violence offence.

Important to also note is section 4A Sentencing Act which
requires a sentencing court to impose either full time detention or
a supervised order in respect to a person guilty of a domestic
violence offence.

A supervised order here includes an ICO, CCO or CRO, that is
subject to a supervision condition.

In short, a non-conviction sentence can still be imposed by the
sentencing court in domestic violence offences.

ICOS AND BREACHES OF ICOS FOR FEDERAL OFFENCES

An ICO under the NSW Sentencing Act is an available sentencing
option for federal or commonwealth offences in NSW. The Parole
Authority also have the power to administer an ICO, including
imposing, varying or revoking ICO conditions for federal
offences.

Section 20AC Commonwealth Crimes Act requires the sentencing
court to deal with ICO breaches. Only the sentencing court can
therefore revoke an ICO order for federal offences. However, the
same is not the case for NSW offences for breaches of ICO’s.
For NSW State offences, breaches are dealt with not by the
sentencing court, but they are dealt with by the Parole Authority
and/or Community Corrections Officer.

Where an ICO order has been made for a federal offence and
there’s information before a Magistrate alleging that the
offender has without reasonable cause or excuse failed to comply
with the ICO, the Magistrate can (s20AC(2)):

  • issue a summons directing the offender to appear before the
    sentencing court, or

  • issue a warrant for the offender’s apprehension if
    information is laid on oath and the Magistrate is of the opinion
    the summons might not be effective.

If the offender after being served with a summons then fails to
attend court or has been admitted to bail but then fails to attend
court, the court can also issue a warrant for his/her apprehension,
but only if there is proof of the service of the summons (or the
admission of the offender on bail) (s20AC(3)).

Where the offender appears before the sentencing court, and the
court is satisfied that he/she has, without reasonable cause or
excuse, failed to comply with the ICO order, the Court can
(s20AC(6)):

  • without prejudice to the continuance of the ICO order, impose
    an pecuniary penalty not exceeding 10 penalty units, and/or

  • revoke the ICO order, and re-sentence the offender for the
    original federal offence, or

  • take no action.

The offender has the right to appeal that sentence.

WHAT CAN A COMMUNITY CORRECTIONS OFFICER DO IF THERE’S AN
ICO BREACH FOR NSW STATE OFFENCES?

The community corrections officer or Commissioner can do any of
the following if satisfied that an offender has breached his/her
ICO obligations:

  • record the breach and take no action

  • give an informal warning

  • give a formal warning that further breaches will result in
    referral to the Parole Authority

  • give a reasonable direction to the offender relating to the
    kind of behaviour by the offender that caused the breach,

  • impose a curfew of up to 12 hours in a 24 hour period

  • alternatively or additionally, refer the breach to the Parole
    Authority because of the serious nature of it, with a
    recommendation as to the action the Parole Authority may take.

In determining which action to take, or whether to take action
at all, the community corrections officer may have regard to any
action previously taken in respect of the breach or any earlier
breaches of the order.

WHAT CAN THE PAROLE AUTHORITY DO IF THERE’S AN ICO BREACH
FOR NSW STATE OFFENCES?

The Parole Authority may conduct an enquiry if it has reason to
suspect that there’s a failure to comply with the ICO
obligations, whether or not the order has expired (section 162
Administration of Sentences Act).

The offender may make submissions to the Parole Authority in
relation to the matters under enquiry.

The Parole Authority has the power to make an ICO interim
suspension order, and issue an arrest warrant if on the
Commissioner’s application, the Parole Authority is satisfied
that the Commissioner has reasonable grounds for believing
that:

  • the offender’s failed to comply with his/her ICO
    obligations, or

  • there’s a serious and immediate risk that the offender will
    leave NSW in breach of the ICO conditions, or

  • there’s a serious and immediate risk that the offender will
    harm another person, or

  • there’s a serious and immediate risk that the offender will
    commit an offence, and

  • due to the urgency of the circumstances, there’s
    insufficient time for a Parole Authority meeting to deal with the
    matter.

Unless sooner revoked, such a suspension order ceases to have
effect at the end of 28 days after it’s made, or if the
offender’s not in custody when it’s made, at the end of 28
days after he/she is taken into custody.

The Parole Authority can take any of the following action if
satisfied that an offender’s breached his/her ICO
obligations:

  • record the breach and take no action,

  • give a formal warning,

  • Impose ICO conditions, to the extent of what the sentencing
    court could have imposed,

  • vary or revoke ICO conditions, except for standard conditions,
    and (relevant to varying) to the extent of what the sentencing
    court could have,

  • revoke the ICO order (revocation order).

The Parole Authority here can impose an ICO condition of:

  • 30 days home detention,

  • To submit to the use of an electronic monitoring device,

  • Ancillary conditions relating to any imposed condition.

If any of the additional conditions on an ICO are revoked by the
Parole Authority, the revoked additional condition must be replaced
with another additional condition, unless there’s already
another additional condition in force.

A home detention or community service work condition on an ICO
cannot be imposed unless a report has been prepared by a community
corrections officer stating that such a condition is appropriate in
the circumstances.

OTHER POWERS OF THE NSW PAROLE AUTHORITY

The Parole Authority can also impose, vary or revoke ICO
conditions, on the application of the offender or a community
corrections officer.

The Parole Authority cannot vary or revoke a standard condition,
and it can only impose a home detention or community service work
condition if a community corrections officer report has been
prepared and states that such a condition is appropriate.

If an additional condition of an ICO is revoked, the Parole
Authority is required to replace it with another additional
condition unless there’s already another additional condition
in force.

However, a replacement additional condition is not required to
be imposed if the Parole Authority is satisfied there are
exceptional circumstances.

Section 164AA Administration of Sentences Act gives the Parole
Authority the power to, on its own initiative or on recommendation
of the Commissioner, revoke an ICO if:

  • satisfied the offender’s unable to comply with his/her ICO
    obligations as a result of a material change in his/her
    circumstances,

  • the offender’s applied for revocation,

  • the offender failed to appear before the Parole Authority when
    called on under s180 Administration of Sentences Act.

Section 180 Administration of Sentences Act can be engaged when
the Parole Authority conducts an enquiry, it can:

In addition, under these provisions, the Parole Authority can
revoke the ICO order, on the recommendation of the Commissioner, if
it’s satisfied that health reasons or compassionate grounds
exist to justify it.

OTHER POWERS OF THE COMMUNITY CORRECTIONS OFFICER

A community corrections officer can:

  • suspend an ICO supervision condition for a period or
    indefinitely,

  • suspend an ICO curfew, non-association or place restriction
    condition for a period(s).

This power must be exercised subject to clause 189I
Administration of Sentences Regulation, which requires the
community corrections officer to take the following matters into
account before exercising the power to suspend an ICO supervision
condition:

  • risk of re-offending,

  • seriousness of the offender’s criminal history,

  • likely benefit of the supervision condition continuing to apply
    and the effect of any other measures that are being, or may be,
    taken to address the risk of re-offending,

  • resources available to supervise.

A community corrections officer must obtain approval by a more
senior officer before he/she suspends an ICO supervision
condition.

In addition, notice must be provided to the offender of the
making or revocation of the suspension order.

The suspension or revocation order takes effect when notice of
the order is given to the offender.

WARRANTS FOLLOWING REVOCATION OF AN ICO

The Parole Authority can issue a warrant to commit the offender
to a correctional centre to serve the remainder of the sentence by
way of full time detention if the ICO order is revoked (section 181
(1) Administration of Sentences Act).

The warrant can be recalled or suspended by the Parole
Authority.

The effect of the warrant gives a police officer the power to
arrest and take the offender into custody for the remainder of the
sentence.

EXPIRED ICO

The Parole Authority can exercise the functions under Part 7 in
relation to an ICO order even after the order has expired. Part 7
functions are basically the sentencing courts powers in imposing
and considering an ICO already discussed earlier.

WHEN DOES THE REVOCATION ORDER TAKE EFFECT?

An ICO can be revoked by the Parole Authority:

  • whether or not the offender’s been called on to appear
    before it, and

  • whether or not it’s held an enquiry

However, the revocation order takes effect on the date on which
it’s made or on such earlier date as the Parole Authority
thinks fit.

According to section 164A(2) Administration of Sentences Act,
the earliest date on which the revocation order can take effect is
the date of the first occasion on which it appears to the Parole
Authority that the offender failed to comply with his/her ICO
obligations.

If an offender is not taken into custody until after the day on
which the revocation order takes affect, the term of his/her
sentence is extended by the number of days he/she was at large
after the order took effect.

YOUR OPTIONS AFTER AN ICO IS REVOKED

There are three main options you have after an ICO ends up
getting revoked. These include the review process, the reinstating
process, or the Supreme Court application process.

Review of Revoked ICO

Following revocation, the Parole Authority must serve a
revocation notice to the offender (section 173(1) Administration of
Sentences Act).

The revocation notice must be served as soon as practicable
following revocation.

If a section 181 warrant is issued, then the revocation notice
must be served as soon as practicable after the warrant’s been
executed, and in any case, within 21 days after the offender’s
returned to custody.

The revocation notice is required to:

  • state a date on which the Parole Authority is to meet to
    reconsider the revocation (between 14 days and 28 days from being
    served the revocation notice), and for purpose of reconsidering the
    date on which the revocation order takes effect, if that date is an
    earlier date than the date on which the revocation order was made,
    and

  • outline that the offender has, not later than 7 days before the
    set date, to notify the Secretary of the Parole Authority if he/she
    intends to make submissions to the Parole Authority in relation to
    the reconsideration.

According to section 174 Administration of Sentences Act, upon
notifying the Parole Authority that the offender intends to make
submissions, a hearing will be set on the same set date in relation
to:

  • reconsidering the ICO revocation, and/or

  • reconsidering the date on which the revocation order takes
    effect, if that date is an earlier date than the date on which the
    revocation order was made.

The Parole Authority, after reviewing all reports, documents and
other information placed before it, must decide whether or not
(section 175 Administration of Sentences Act):

  • to rescind the revocation, or

  • to rescind or vary the date on which the revocation order takes
    effect.

This review/reconsideration of the revocation avenue is not
available if the ICO is revoked within 30 days before the sentence
expires (section 175A Administration of Sentences Act).

Reinstating a Revoked ICO

The offender can apply to the Parole Authority (or on the Parole
Authority’s own initiative), to reinstate the revoked ICO in
respect to the balance of the sentence (section 165(1)
Administration of Sentences Act).

Important to note that, Part 5 Sentencing Act does apply to and
in respect of the Parole Authority and offender when this avenue is
engaged.

The application must state what the offender has done or is
doing to ensure he/she won’t fail to comply if the ICO is
reinstated.

The Parole Authority may refer the offender to the Commissioner
for assessment as to his/her suitability for ICO. The commissioner
will then be required to arrange a reinstatement report prepared by
a community corrections officer to be furnished to the Parole
Authority for its consideration (clause 190(1) Administration of
Sentences Regulation).

The Parole Authority is precluded from imposing a community
service work or home detention condition to a reinstated ICO unless
a reinstatement report states that the offender is suitable to be
subjected to such condition(s) (section 190(3) Administration of
Sentences Regulation).

Preconditions before an application can be made to reinstate a
revoked ICO include:

  • the offender must have served at least 1 month of the sentence
    in custody following revocation, and

  • the offender must not be subject to an imprisonment sentence by
    way of full-time detention that’s yet to commence.

Supreme Court Application

Following an ICO revocation, the offender can apply to the
Supreme Court for a direction to be given to the Parole Authority
as to whether the information relied upon was false, misleading or
irrelevant (section 176(1) Administration of Sentences Act).

This application can only be considered by the Supreme Court if
the court is satisfied that the application isn’t an abuse of
process and that there appears to be sufficient evidence to support
the application.

This does not give the Supreme Court power to consider the
merits of the Parole Authority’s decision otherwise than on the
grounds under 176(1).

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