This week the High Court of Australia (HCA) handed down a favourable judgement in Stanley v DPP (Stanley). This is relevant for those looking to avoid full-time imprisonment (jail) and instead receive an intensive correction order (ICO).
What is the difference between an intensive correction order and jail?
Both jail and ICOs are forms of "imprisonment".
ICOs have replaced suspended sentences and home detention pursuant to Section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (SPA). Section 7(1) states:
A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
Community safety must be of "paramount consideration" when the sentencing court is deciding whether to make an ICO in relation to an offender.
Further, s.66(2) of the SPA provides that, when considering community safety, the court is to assess whether making the ICO or serving the sentence in jail is more likely to address the offender's risk of reoffending.
In layperson's terms, before the HCA judgment of Stanley this week, sentencing courts did not have to consider ICOs when it determined that the offender would receive a term of "imprisonment".
Sentencing courts must now consider ICOs
Now, however, a sentencing court must consider both options of jail or ICOs when sentencing an offender to "imprisonment". In effect, the sentencing court must now make a subsequent and separate decision once it determines that the offender will receive "imprisonment".
This leaves scope for defence lawyers to now argue that their client's sentence be an ICO instead of jail.
If you or someone you know are potentially going to receive a jail sentence, contact O'Brien Criminal and Civil Solicitors to find out your legal options.
Our lawyers have the experience and knowledge to guide you through the legal process.