Suitable for an ICO, but Still Sent to Jail

Picture this. You have been found guilty of a fraud offence. The sentencing assessment report says you are suitable for home detention and community service work. Does that mean you will stay at home?

Not necessarily. On 30 October 2026, the NSW Court of Criminal Appeal dismissed an appeal by a man who had been refused an intensive correction order (ICO). A key factor was that he had not accepted responsibility for his offending and lacked insight into how serious it was.

In short

• An ICO is a sentence of imprisonment served in the community rather than in full-time custody.

• Under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration. The court must assess whether an ICO or full-time detention is more likely to address the risk of reoffending.

• Here, the judge could not say either way, largely because of the offender's lack of insight, so other purposes of sentencing decided the question. The Court of Criminal Appeal held that was open to her.

What happened

The offending involved a scheme, carried out with others, to defraud the National Australia Bank (NAB).

In one part, the offender received two fake bank guarantees from a co-offender, a former NAB employee, and passed them to a real estate agent. The agent used them as deposits on two units in Ryde, with a combined price of $860,000. A commission of $51,600 was paid and could not be recovered, because the agent had left Australia. The guarantees were found to be fraudulent and the sales did not complete.

In another part, between June and September 2019, fake internal bank vouchers worth about $16.87 million in total were deposited at NAB branches in Bankstown, Fairfield and Cabramatta. The offender recruited a student who trusted him and regarded him "like an older brother". He drove the student to the branches, told him what to write and kept out of sight of the CCTV cameras. On three of the four occasions, bank staff stopped the vouchers from being processed. On the other, the funds were transferred, but a stop was placed on the account before any money was accessed, so the bank lost nothing.

A jury found him guilty of six offences under the Crimes Act 1900 (NSW), including participating in a criminal group and dishonestly obtaining, or attempting to obtain, a financial advantage by deception.

The sentence

The District Court judge found the offending fell below the mid-range of seriousness. On 9 May 2025, she imposed an aggregate sentence of 3 years' imprisonment with a non-parole period of 18 months. The sentence was shorter than it would otherwise have been because of his serious health conditions, which meant prison would weigh more heavily on him.

Much was in his favour: no previous convictions, strong family support, no reoffending during a long period on bail, and a psychiatrist's opinion that his risk of reoffending was significantly lower than average.

But the judge found that he "has not acknowledged his wrongdoing and has not accepted responsibility for it", and that he lacked insight into the seriousness of his conduct. A letter in which he said he was "truly remorseful for the position I now find myself in" was found to be "laden with self-concern".

The judge was not satisfied either way whether an ICO or full-time detention was more likely to address his risk of reoffending. She then concluded that adequate punishment, deterrence (moderated because of his mental health), accountability and denunciation required full-time detention, and declined to make an ICO. He served 13 days in custody and was then released on bail.

The appeal

The offender argued that, given the favourable findings of the report, the judge had to find an ICO would better address his risk of reoffending. The Court of Criminal Appeal disagreed. Coleman J, with whom the other two judges agreed, held that the judge had carefully reviewed the evidence and was entitled to weigh the matters against him.

Drawing on the High Court's decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, the Court explained that community safety will usually decide whether an ICO is made, but not where the evidence on that question is inconclusive. Then, other matters, including the purposes of sentencing, can be decisive.

The orders, explained

1. Leave to appeal was granted, meaning the Court agreed to decide the appeal.

2. The appeal was dismissed. The original sentence stands: 3 years' imprisonment with a non-parole period of 18 months, served in full-time custody.

3. Bail was revoked. He was to be taken into custody to serve the rest of his sentence, with credit for the 13 days already served.

What was the risk in this appeal?

In this case, the appeal was dismissed; his sentence of 3 years with an 18-month non-parole period stayed exactly the same.

S 6(3) of the Criminal Appeal Act 1912 (NSW) allows the Court of Criminal Appeal to substitute a sentence that is "more or less severe". The High Court has said a heavier sentence in that situation is likely to be rare. If the Court has one in mind, convention requires it to tell the appellant first, so they can abandon the appeal. This is often called a "Parker warning", after Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, which the High Court cited for this convention. This warning was not required in this case as the penalty did not increase.

What this means for you

• An ICO is not a given. A favourable report helps, but the court still makes its own decision.

• Insight and responsibility matter. Courts look at whether an offender understands how serious the offending was. Regret that focuses only on your own situation may carry little weight. This is often conveyed to the Court through expert reports from psychologists or psychiatrists, in addition to a letter of apology.

For more on ICOs in another setting, read our article on the new sentencing guide for dangerous driving causing death or GBH.

How Surge Legal can help

If you or someone close to you is facing sentence for fraud or another offence, our criminal law team in Parramatta can explain your options, including whether an ICO may be available and how to prepare for sentencing.

Call (02) 8551 7851 or email info@surgelegal.com.au. New clients can book a free initial 20-minute consultation, by appointment, with one of our lawyers. You can also book online.

Case: Chamakuri v R [2026] NSWCCA 176 (NSW Court of Criminal Appeal, 30 October 2026) This article is a general summary of the decision cited above for information purposes only. It does not constitute legal advice. Every case turns on its own facts. Please contact Surge Legal to discuss your individual circumstances.