A court may order that a term of imprisonment be served by way of ICO. This is only applicable for sentences of 2 years or less.
First, the court must consider whether there are any alternatives to a sentence of imprisonment. The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate.
Second, the court must determine the length of the custodial sentence.
If the length is 2 years or less, an ICO can be considered as an alternative to full-time imprisonment.
In considering the imposition of an ICO the court needs to consider the objective seriousness of the offence.
An ICO is not available in relation to offences where the victim is under 16 years of age, or the offences involved sexual intercourse against a victim of any age.
Assessment for ICO
Before delivering sentence, the court will refer the offender for an assessment and a report is prepared by Corrective Services. This report provides an opinion of whether an ICO is appropriate. Corrective Services will also address in their report the offender’s criminal record, the likelihood of re-offending, the risks associated with managing the offender in the community, the likelihood that the offender will commit a domestic violence offence, and whether the offender will have suitable residential accommodation for the duration of the ICO.
To be eligible for an ICO the offender has to be above 18, a suitable person, and provide an undertaking to comply with the conditions of the ICO.
Conditions of an ICO
The court will impose mandatory conditions as part of the ICO that the offender must comply with. Some examples are that the offender is to be of good behaviour, reside at premises approved by his or her supervisor, submit to testing for alcohol and/or drugs, and undertake community service as directed by his or her supervisor. The court may also impose any additional conditions that are considered appropriate.
A breach of an ICO is dealt with by the Commissioner of Corrective Services and the State Parole Authority who impose their own penalties.
S 20AB of the Crimes Act 1914 (Cth) and Regulation 6 Crimes Regulations 1990 states that a sentence of imprisonment can be served by way of ICO in respect of a person convicted of a federal offence.