Proposal 4–1 State and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to ensure that community-based sentences are more readily available, particularly in regional and remote areas.
4.63 The availability of community-based sentencing options for Aboriginal and Torres Strait Islander offenders can be affected by remoteness and suitability requirements, including the requirement that offenders not have an alcohol or drug dependency and have suitable accommodation. These issues are discussed below.
4.64 The ALRC has been told that a significant number of Aboriginal and Torres Strait Islander prisoners originate from regional and remote areas. For example, almost two-thirds of the Aboriginal and Torres Strait Islander population live outside of metropolitan areas, and up to 80% of the Aboriginal and Torres Strait Islander prisoner population in the NT are from regional or remote communities.
4.65 A range of sentencing options are available to judicial officers when sentencing offenders, including bonds, community service or correction orders, home detention, suspended sentences and intensive correction orders. The ALRC has heard that, in practice, the availability of alternatives to incarceration is limited or non-existent in many locations and, in particular, in areas outside of metropolitan areas. This can lead to the imposition of sentences of imprisonment where community-based sentences would otherwise be appropriate.
4.66 In Chapter 7, the ALRC proposes that state and territory governments should engage with peak Aboriginal and Torres Strait Islander organisations to identify gaps and build the required infrastructure to introduce culturally appropriate community-based sentencing options and support services. That proposal is made with reference to reducing breaches of community-based sentences by Aboriginal and Torres Strait Islander people, but it applies equally to the identification of gaps in rural and remote areas. Accordingly, Proposals 4–1 and 7–1 are closely aligned.
4.67 Chapter 7 also canvasses other options, such as the recommendation of a 2016 independent review of NT Corrective Services to appoint Aboriginal and Torres Strait Islander Probation and Parole Officers to remote communities who are from the community—where the community agrees—to provide local supervision and support to offenders. It is also noted that some stakeholders to this Inquiry have raised the possibility of supervision by community as described in the case of Djambuy, where the offenders were sentenced to suspended sentences that were to be supervised by the Aboriginal community, not Community Corrections.
4.68 Almost all stakeholders in this Inquiry to date have supported greater resourcing of alternatives to prison. Stakeholders have told the ALRC that the lack of practical sentencing alternatives to custody—particularly in regional and remote areas—has had a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Other inquiries have also noted the lack of appropriate resourcing for community-based options in regional and remote areas.
4.69 The ALRC welcomes submissions on whether alternative sentences, such as community-based options, are required in remote and rural locations. It has, for example, been suggested that expanding the options may result in net-widening, where offenders, who may otherwise be fined, are instead subject to a sentence in the community. The ALRC welcomes information on the best sentencing options for Aboriginal and Torres Strait Islander offenders in remote locations, particularly where the offending conduct would not have otherwise resulted in a sentence of imprisonment.
Suitability requirements for custodial community-based sentences
4.70 Some stakeholders advised the ALRC that the suitability requirements for some types of custodial community-based sentences were particularly restrictive for Aboriginal and Torres Strait Islander offenders.
4.71 For example, in order for the court to impose an Intensive Correction Order (ICO) on an adult in NSW, it must have regard to an assessment report and be satisfied that the offender is a suitable person to serve the sentence, and that it is appropriate in all the circumstances for the sentence to be served by way of an ICO. A person may be found unsuitable due to having a dependency on alcohol or drugs, or due to a lack of stable accommodation. A person living in a remote or regional area may not have access to ICOs. Accordingly, in 2015, only 17% of offenders issued an ICO were Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander peoples make up 24% of the prison population in NSW.
4.72 The ALRC welcomes input on how best to improve access to community-based sentences for Aboriginal and Torres Strait Islander offenders.
Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2011, Cat No 3238.0.55.001 (2013).
Australian Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait Islander Australians, 2006, Cat No 4705.0 (2007).
Northern Territory Government, A Safer Northern Territory through Correctional Interventions: Report of the Review of the Northern Territory Department of Correctional Services, 31 July 2016—Statement of Response (2016) rec 133. See also ch 7 of this Discussion Paper.
R v Yakayaka and Djambuy (Unreported, Supreme Court of Northern Territory, 17 December 2012); Thalia Anthony and Will Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality’ (2013) 17(2) Australian Indigenous Law Review.
See, eg, Legislative Council Standing Committee on Law and Justice, Parliament of NSW, Community Based Sentencing Options for Rural and Remote Areas and Disadvantaged Populations (2006); Senate Select Committee on Regional and Remote Indigenous Communities, Parliament of Australia, Final Report (2010).
Don Weatherburn, Arresting Incarceration—Pathways out of Indigenous Imprisonment (Aboriginal Studies Press, 2014) 36.
See Ch 7 for an overview on custodial and non-custodial community-based sentences.
Crimes (Sentencing Procedure) Act 1999 (NSW ss 67(1), 70.
NSW Justice Sentencing Council, Intensive Correction Orders: Statutory Review—Report (2016) [2.17].
Ibid fig 2.1.
Australian Bureau of Statistics, above n 10.