Intensive correction orders - general principles
11In its original form, s 7 of the Sentencing Procedure Act provided that a sentence of imprisonment of not more than 18 months might be served by way of home detention. From 1 October 2010, the provision was varied so as to provide for imprisonment to be served by way of intensive correction in the community. That is to occur by the making of "an intensive correction order". Where such an order is made, the Court is not to set a non-parole period: s 7(2). Section 7 is described as being "subject to" the provisions of Pt 5 of the Sentencing Procedure Act. Further, in common with all sentences of imprisonment, it is also subject to the operation of Pt 4, which makes general provision for procedures in setting terms of imprisonment: see ss 44-63.
12Part 5, by contrast, is specific to procedures for intensive correction orders: s 64-73A. An intensive correction order is not available in respect of certain sexual offences: s 66. Further, it may not be made unless the court is satisfied with respect to the conditions of eligibility in s 67. These include satisfaction that the offender is "a suitable person" to serve the sentence by way of intensive correction in the community: s 67(1)(b).
13Section 69 states that before imposing a sentence of imprisonment "the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community": s 69(1). Whilst that provision confers a power, it appears that the obtaining of such a report is a necessary pre-condition to making such an order because there is a requirement for the court, in taking that step, to have regard to the contents of the assessment report on the offender: s 67(2)(a). Further, the power to make such an order is conditioned upon an affirmative assessment that the offender is a suitable person to serve the sentence in the community: s 67(4). A finding of suitability does not, however, mandate such an order: s 67(3).
14The exercise of the power to make an intensive correction order is not solely contained within the Sentencing Procedure Act. There is a further requirement that the sentencing court impose conditions, prescribed as mandatory conditions by the Crimes (Administration of Sentences) Regulation 2008 (NSW), the obligation being imposed by s 81(2) of the Crimes (Administration of Sentences) Act 1999 ("the Administration Act").
15Perhaps because a sentencing judge does not usually expect to find mandatory conditions upon which a sentence may be imposed in the Administration Act, that obligation appears to have been overlooked in the present case. There was some discussion in the course of argument as to the effect of that omission, which it is unnecessary to determine.
16Simpson J has expressed the view that an offender should not be subject to an intensive correction order unless there is a real need for rehabilitation in the community: R v Boughen; R v Cameron [2012] NSWCCA 17 at [111] (Simpson J, Hislop and Latham JJ agreeing). Thus, where there was little if any prospect of the person convicted re-offending, the case was held not to lend itself to such an order: Boughen, at [110]. Simpson J articulated the reasoning underlying that conclusion in more detail in R v Agius; R v Zerafa [2012] NSWSC 978 at [92]-[116]. In particular, she held that the restrictions and constraints contained in the mandatory conditions gave rise to an implication that, absent a real risk of re-offending, the order would serve no purpose: at [107]. These views have recently been rejected by a five-judge bench: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [96]-[100] (McClellan CJ at CL and Johnson J; Price, RA Hulme and Button JJ agreeing).
17That the service of a sentence by way of intensive correction in the community is a more lenient penalty than full-time imprisonment was acknowledged by all parties in the present case, although there were differing views as to the degree of leniency involved. This court has accepted that such a sentence involves "a high degree of leniency": Boughen at [111]. In Whelan v R [2012] NSWCCA 147, Schmidt J (Allsop P and Davies J agreeing) accepted a submission by the Director that "an intensive correction order reflects a significant degree of leniency", while noting that it also involves a substantial punishment: at [120]. Those conclusions were clearly accepted by the offenders in the present case, each of whom filed an affidavit deposing to the harsh consequences which would follow were the intensive correction orders to be revoked, in favour of sentences involving full-time custody. The fact that there are significant restraints and the possibility of future incarceration for breach of conditions does not gainsay these views, but puts them in context: R v Pogson at [68], [100]-[101], [108]-[111].
18Simpson J also expressed doubt in Agius as to whether, under the Sentencing Procedure Act, the imposition of such conditions could be seen as a "significantly punitive disposition", as had been held with respect to similar legislation in Victoria: see Director of Public Prosecutions v Nikolic [2008] VSCA 226 (Warren CJ, Vincent JA agreeing); Director of Public Prosecutions v Karazisis [2010] VSCA 350; 206 A Crim R 14 at [184] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing), both of which were referred to by Buddin J in R v Bateson [2011] NSWSC 643.
19The Victorian cases there referred to were concerned with ss 19 and 20 of the Sentencing Act 1991 (Vic), as then in force. Those provisions were replaced by more comprehensive provisions, now found in Pt 3A of the Victorian Act, as inserted by the Sentencing Amendment (Community Correction Reform) Act 2011, which commenced on 16 January 2012.
20Similar legislation also exists in Queensland: Penalties and Sentences Act 1992 (Qld), ss 112-115. In Western Australia there is power to make "intensive supervision orders" which are seen, not as a form of imprisonment, but as an intermediate step between other non-custodial options and imprisonment: Sentencing Act 1995 (WA), ss 69-71. New Zealand has adopted a similar approach: Sentencing Act 2002 (NZ), ss 54B-54K. (For a summary of such laws, now slightly out of date, see Sentencing Advisory Council (Vic), Suspended Sentences and Intermediate Sentencing Orders - Suspended Sentences Final Report - Part 2 (2008), Ch 6.)
21At least in jurisdictions where such orders are treated as a form of imprisonment, they must have a significant punitive effect and therefore reflect, in all likelihood, a range of purposes identified in s 3A of the Sentencing Procedure Act. It is unlikely that their incidents or objectives would differ greatly if they were described as "intensive supervision orders". The use of the descriptor "correction" in the title probably reflects the same philosophy as does the use of the term "correctional centre" to include what were formerly known as prisons in the Administration Act.
22Although, as a general rule, a statute cannot be construed by reference to regulations made under it, there are circumstances where the statute itself establishes the structure of a scheme which is incomplete, absent relevant regulations. In such a case, it may be appropriate to have regard to the regulations in order to understand the scheme. That principle has been applied in relation to the sales tax legislation in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; 52 CLR 85 at 91-92 (Dixon J); Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at 657 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ). This principle has not been restricted to tax cases, but was accepted in respect of the regulation of franchising under Pt IVB of the Trade Practices Act 1974 (Cth), which was read with the Trade Practices (Industry Codes - Franchising) Regulations 1998 (Cth): Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19] and [26] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ).
23In the present case, s 81 of the Administration Act was premised on the assumption that there would be regulations prescribing mandatory conditions of an intensive correction order and obliging the court to impose such conditions when making an order. In such circumstances, it may not be inappropriate to look to the regulations to understand the legislative scheme.
24The present case gave rise to two further issues. The first, which was not in dispute, was whether it was permissible, desirable or even necessary, to look to the terms of the regulation to understand the degree of leniency of such a sentence as compared with full-time imprisonment. At least implicitly, both the Director and the respondents accepted that it was. The next question was whether, and if so how, the court could take into account the actual operation of such an order. In most cases, the sentencing court will not have such information before it, except, perhaps, at a very general level. In the present case, the offenders read affidavits in which they set out the manner in which the orders were currently operating in respect of their own circumstances, as being at least relevant with respect to any re-sentencing exercise and possibly as to the appropriateness of the orders themselves. Thus, it might be possible to consider the actual degree of leniency resulting from an order under s 7 or, being the obverse of the same coin, the relative harshness of the conditions, as they operated in the particular cases.
25Generally speaking, it is not open to an offender to demonstrate that a sentence was unduly severe (or in the case of an appeal by the Director, not unduly lenient) by evidence of the manner in which it operated prior to the hearing of the appeal. The general approach is that, assuming that error is otherwise demonstrated, such material may be taken into account upon re-sentencing. The only basis for adopting a different approach in the present case is that, while sentencing judges are reasonably familiar with the general circumstances of a custodial sentence and its impact upon an individual offender, the operation of intensive correction orders is less well understood. In part that is because their operation will depend as much upon the resources available to the State in administering the scheme as upon the abstract nature of the conditions imposed. However, to accept such an argument would be to leave the door open to continuing evidential disputes about the operation of particular orders in circumstances where it may be said that the available resources have been augmented or withdrawn over time. The preferable course is to approach the matter on the basis of the statutory scheme and the material available to the trial judge at the date of sentencing.